The little-known panel's members are appointed by local judges--not chosen on Election Day--but they decide some of Fairfax County's most sensitive issues, such as where day-care centers, golf courses, churches and adult bookstores can operate.
Now the Board of Zoning Appeals in Fairfax County is under fire as "undemocratic," its powers dubbed too sweeping by a majority of the County's Board of Supervisors.
A holdover of the political machine built in the 1920s by former Virginia governor and U.S. senator Harry F. Byrd (D), the Board of Zoning Appeals exists in every Virginia county. But only in Fairfax has the group of six men and one woman become one of the chief arbiters of development.
Its members do not face voters, and its decisions may only be appealed in court. Yet the BZA, as it's known, has ruled on more than 600 land-use cases in the last six years.
"It is mind-boggling to think that an unelected body could have that sort of control," said Supervisor Michael R. Frey (R-Sully). "Like it or not, I don't think we have any choice but to be making the decisions."
The zoning board's decisions can be controversial.
There was the case of the Shark Club, a billiards hall in Centreville, which received the blessing of the zoning appeals board to continue operating even after patrons stripped nude at a wet T-shirt contest two years ago. And there was the construction of the Mustafa Center, a mosque on Braddock Road, which was approved despite opposition from many residents who cited traffic concerns.
"They are making policy and land-use decisions in Fairfax County that are inappropriate for their role," said Adrienne Whyte, a citizen activist in McLean who has researched the board's history. "They sit as a body accountable to no one. It appears to me to be an unfair process."
Supervisor Stuart Mendelsohn (R-Dranesville) agrees.
"I think it's crazy," he said. "This group is not appointed by us. I don't even know who they all are, and they are making major decisions that affect our citizens."
But some current and former Board of Zoning Appeals members defend the system.
"I think that the decisions we reach are mostly fair and equitable," said the zoning board's chairman, John DiGiulian, a land surveyor and 20-year member of the board. He said the group takes very seriously the opinions voiced by the community during its hearings.
"I listen to everyone that comes up there," DiGiulian said. "Just because I don't vote the way they want me to vote doesn't mean that I don't listen to them. . . . I would say the reason we are appointed by the Circuit Court is so we are not subjected to political pressure."
Fairfax lawyer Lynne Strobel, who has represented clients before both the zoning board and the supervisors, agrees.
"Sometimes these cases get very emotional, and the nice thing about the BZA is that they make balanced and reasoned decisions," she said. "That's their trademark."
Yet some changes seem almost certain. Confronted with criticism of the zoning board, seven of the 10 Fairfax supervisors say they support--at the least--a wholesale review of the zoning board's role. Several say they would go further and strip the board's broad authority to issue most special permits for businesses and other organizations.
The county board should assume those responsibilities, those supervisors argue.
Fairfax supervisors already control most large-scale development, passing judgment on proposals to construct neighborhoods, high-rise office buildings or shopping centers. And they have the power to zone land, designating it for a specific purpose. Convenience stores and service stations also fall under their purview.
But much does not, and the move against the zoning appeals board comes as small-scale development assumes greater importance in the county. And many of those decisions are made by the zoning board, because of its power to grant--or withhold--business permits.
The list of businesses and organizations that must get the board's permission to operate is long. Most churches need a special permit to operate in a neighborhood. So do swim clubs, golf courses, boarding schools and child-care centers. The zoning board rules on bowling alleys and billiards halls. It approves or denies construction of cemeteries, funeral homes and even rock quarries.
As Fairfax becomes increasingly developed, its future face will be determined less by giant projects and increasingly by redevelopment and construction on small sites in existing neighborhoods.
One of the most controversial recent zoning appeals board cases involves a golf driving range along the Dulles Toll Road.
In 1992, the zoning board granted Reston landowner and Christian school director John Thoburn permission to build the driving range on 48 acres of his property, outraging neighbors who complain that the facility is an eyesore and inappropriate for the area.
They appealed the case all the way to the state Supreme Court, which sided with Thoburn. The neighbors are still fuming.
"The BZA is boundless. They can do what they damn well please," said Bruce Bennett, president of a civic association that fought the driving range. "They are making regional land-use decisions. It's not appropriate for them."
Bennett said residents who live next to Thoburn's land would have preferred dealing with the Board of Supervisors, where they have elected representation, even if they still lost in the end.
"Our input is not considered by the BZA," he said. "In the BZA, you feel as though you are scratching and clawing to even be heard."
Supervisor Robert B. Dix Jr. (R-Hunter Mill), who represents the area, agrees. Several months ago, he proposed to transfer all authority over outdoor recreation from the zoning appeals board to the county board.
Now, he favors removing all authority for granting special permits from the zoning board.
"It's a matter of accountability," Dix said. "I believe those are decisions that should lie with the elected representative as opposed to appointed, quasi-judicial people."
The zoning board's prominent role in shaping the look and feel of Fairfax County dates to a time when Fairfax was largely rural and supervisors delegated broad authority to issue special permits to the zoning appeals board.
That's not the way it works in Arlington, Prince William and Loudoun counties. There, the appeals board rules on requests for variances from the zoning code, such as permission to build a deck closer to the lot line than code allows, and it hears appeals on county zoning violations.
Current members of the Fairfax County Board of Zoning Appeals--all of them white, middle-aged and nearly all lawyers or people familiar with the development industry--note that most of the special permit cases they hear are small and noncontroversial. At a recent Tuesday zoning meeting, for example, most of the public hearings drew not a single objection.
Supervisor Gerald W. Hyland (D-Mount Vernon), a former zoning board member, said the board's cases should not be "in any way, shape or form decided for political reasons or for how many people are on one side or the other."
John Tsiaoushis, owner of the Shark Club, said he thinks the zoning board gives residents plenty of consideration. In his case, he said, it imposed conditions--including the prohibition of wet T-shirt contests--on his permit to remain in business.
"If there is opposition, the BZA votes in favor of the community," he said.
Some fear that transferring power from the zoning appeals board to the Board of Supervisors will further politicize zoning decisions.
What's wrong with that? responded Supervisor Sharon S. Bulova (D-Braddock), who proposes the county board take over reviewing all cases involving churches, synagogues and mosques.
Bulova and several other supervisors said they have received complaints about the zoning board from residents who say the panel ignores their concerns about churches and other religious facilities, which residents often fear will bring too much traffic and noise.
Bulova said politics is the best way to arbitrate such cases.
"That's what we do. We work with communities, we mediate," she said. "We help to broker compromises."
Fairfax Board of Zoning Appeals
Members of the Board of Zoning Appeals (BZA)
John Digiulian, land surveyor
Paul Hammack Jr., Fairfax lawyer
John Ribble III, title company
Robert Kelley, retired
James D. Pammel, zoning administrator, town of Purcellville
Robert Dively, Jr., Fairfax lawyer
Nancy Gibb, Fairfax lawyer
Variances: The BZA decides whether homeowners and businesses should receive exemptions from the zoning code, for example, a homeowner who wants to build a five-foot fence even though the code only allows a four-foot fence.
Appeals: The BZA rules on decisions made by the county's zoning officials regarding administration and enforcement of the zoning code. For example, a business that has been cited for installing a sign that is too large may appeal.
Special permits: The BZA grants special permits for businesses and organizations that want to build projects that fall within certain groups. (See below.)
Categories of Special Permits
Extraction and excavation: quarries.
Interment uses: cemeteries, funeral homes in a cemetery, mosoleums.
Institutional uses: churches, boarding schools, convents and monastaries, child care centers, nursery schools, private schools with fewer than 100 students daily.
Community uses: country clubs, community swimming pools and tennis clubs, golf clubs.
Commercial recreation: billiard and pool halls, bowling alleys, commercial swimming pools, tennis courts, dance halls, indoor firing ranges, archery ranges, miniature golfing, skating rinks.
Outdoor recreation: baseball hitting, golf courses, golf driving ranges, kennels, riding and boarding stables, skeet and trap shooting, veterinary hospitals, zoo parks.
Older structures: certain uses in residential structures built prior to Jan. 1, 1949, including antique shops, art and craft galleries, restaurants, summer theaters.
Temporary permits issued by zoning administrator.
Uses requiring special regulation: adult bookstores, adult mini-picture theaters, barbershops or beauty salons in homes, home offices, massage parlors, commercial nudity establishments, accessory dwelling units (apartments in a home).