Board of Supervisors Meeting Date:

Lee E. Smith and Donna G. Smith


February 8, 2007

Staff Lead:


W. Todd Benson, Assistant Zoning Administrator


Community Development




A Zoning Ordinance Text Amendment to Section 5-105 to Change the Square Footage of Accessory Family Dwelling Units and to Establish Permitted Occupancy


Topic Description:


This proposed text amendment was initiated by Lee and Donna Smith.  It raises the square footage of a family dwelling unit from 1,400 square feet to 1,600 square feet, redefines how gross floor area is calculated, expands the number of occupants allowed in a family dwelling unit (from 5 to unlimited), changes the required time for family usage from ten to two years, and permits both units to become rental units after two years.

On October 12, 2006, the Board of Supervisors conducted a public hearing on the proposal.  Members of the Board were not supportive of the amendment and asked staff to prepare an alternative within certain guidelines suggested by the Board members.  Mr. Smith asked that his proposal not be voted down at that time but be allowed to follow along with the Board’s alternative.

A work session on the alternative prepared by staff was held on January 11, 2007. During the work session, members of the Board indicated that affordable housing was an issue of concern but that the pending text amendment was not the proper vehicle to deal with this issue.  The Board of Supervisors ceased consideration of their alternative and asked staff to place the Smith proposal on their regular agenda for February for final action.


Requested Action of the Board of Supervisors:

Consider adoption of the attached Ordinance.


Financial Impact Analysis:

No financial impact analysis has been conducted.


Summary Staff Report:


Prior Text Amendment:

For many years, Fauquier County permitted family dwelling units as accessory structures on a lot. In August, 2005 the Board of Supervisors initiated a text amendment to liberalize the restrictions on such units.  This amendment was at the request of Lee Smith who wanted to build a family home for one of his children and family. The Board of Supervisors’ proposed text amendment, as initiated: (1) increased the size of the second home from 1,200 square feet to 1,600 square feet; (2) allowed the owner to occupy the smaller second house while permitting a close family member to reside in the principal structure; (3) removed the current occupancy cap (3 people) for use of the second home; (4) eliminated the prohibition on charging rent for the second unit during the first two years (an owner may want or need to charge his family member rent); and (5) extended the period in which immediate family must occupy the second house from two to five years. 

The Planning Commission held a work session on this issue on September 27, 2005 and public hearings on August 25, 2005 and September 29, 2005.  By a vote of 4 – 1, the Planning Commission recommended approval of a significantly different amendment. The Planning Commission was troubled by the Board of Supervisors’ proposed increase in size of the house to 1,600 square feet.  It believed that a second home should clearly be subordinate to the existing home.  Accordingly, the Planning Commission recommended that the size of the accessory family dwelling be limited as follows:  “Such a unit shall contain no more than 1200 square feet of gross floor area. may be 600 square feet in gross floor area or 25% of the gross floor area of the existing house, whichever is larger, but in no circumstance may the family dwelling unit exceed 1,200 square feet of gross floor area.” The Planning Commission also was concerned by unlimited occupancy of the family dwelling unit.  It recommended that the occupancy be increased to four. Finally, the Planning Commission believed that family occupancy should be similar to family subdivisions and have a ten year holding period before it could be used as a third party rental unit.

The Board of Supervisors rejected the Planning Commission’s recommendation as to size and occupancy limits.  It adopted a maximum size of 1,400 square feet and increased permitted occupancy to five. The Board of Supervisors concurred with the ten year holding period by close relatives.  The Smiths opted not to take advantage of the new ordinance; rather, they kept their permit alive under the prior law.

This proposed text amendment by the Smiths raises the square footage of a family dwelling unit from 1,400 square feet to 1,600 square feet, redefines what is included in calculating the gross floor area, expands the number of occupants allowed in a family dwelling unit (from five to no limit), and reduces the required time for family usage from ten to two years.  The square footage and capacity limits are the same as those originally initiated by the Board of Supervisors.


Requirements of Other Counties:

For comparison, staff surveyed the conditions imposed by other counties on second dwellings.  Among the jurisdictions surveyed, Fauquier County is the most liberal regarding size and options.

Rappahannock County limits a second dwelling to 1,200 total square feet of combined living and storage space. Storage space shall include basements, garages, crawl spaces of five feet or greater in height and attic spaces not constructed of trusses with a pitch of nine to twelve (9:12) or greater. Carports are excluded from storage space calculation unless it is planned to close in the same at a later date; if excluded, then carports may not be enclosed later. Such use may be in a separate building constructed specifically for the use. Further, excluding renovation of existing structures, no such family apartment shall be more than 200 feet from the main residence, except upon a written finding by the BZA, to be recorded in the permit, that exceptional topographic conditions exist on the site (or that a negative impact on adjacent properties may be mitigated), such that varying this limit shall not act to the detriment of the public interest, upon which finding the BZA may grant such separation as it deems appropriate. No family apartment shall utilize a separate entrance to the property unless such entrance is already in existence. For apartments to be constructed in existing accessory buildings, the amount of living space shall be no more than 1,000 square feet and the limitation on enclosed utility/storage/accessory space shall not apply. In no case shall accessory space be converted to residential occupancy, and the BZA is empowered to impose such conditions as will render such conversion unlikely, including but not limited to floor plans, means of ingress/egress, etc. The apartment may not be rented to anyone other than a family member for a period of two years following completion thereof. There shall be no more than one family apartment per separate parcel of land.

Warren County does not allow second dwellings for full time residents.  Only guest houses are permitted.

Stafford County allows accessory dwellings, unrestricted to family members – anyone may occupy. However, rent is prohibited except rent paid by family member occupants. Only one accessory dwelling per lot is allowed and the accessory dwelling can be no larger than twenty-five percent of the gross floor area of the principal structure.  If this rule applied in Fauquier County, the Smiths would be allowed an accessory dwelling of approximately 600 square feet.

Culpeper County permits accessory dwellings.  Such dwellings are restricted to twenty-five percent of the gross floor area of the principal dwelling.  Attached apartments may be the larger of thirty percent of the gross floor area or one thousand square feet.

Clarke County allows accessory guest cottages of six hundred square feet.  The house may be no more than three hundred feet from the principal dwelling.  They may be rented.

Madison County only allows accessory dwellings when the parcel is large enough to be divided into two lots.  The structure must meet the same requirements (set backs, well and septic, etc.) as the principal structure.

Orange County only allows accessory dwellings in cases of medical emergencies.  A special permit may be issued for six months and reauthorized for up to two years.  Continuation after two years requires a variance.

Other Accessory Housing Provisions:

Note that Fauquier County also permits, by right, efficiency apartments.  Under the Zoning Ordinance, efficiency apartments are subject to the following standards: (1) Such a unit shall not be occupied by more than two persons; (2) Not more than one such unit shall be located on a lot; (3) Such a unit shall contain no more than 600 square feet of gross floor area or 25% of the total gross floor area of the dwelling, whichever is greater; (4) Such a unit shall be located only on the same lot as the residence of the owner of the lot; and (5) Architectural features of such a unit shall conform with the single family character of the neighborhood (e.g., no additional front doors).

Fauquier County also permits quarters for a caretaker, watchman, or tenant farmer but only in the rural districts at a density not to exceed one unit per fifty acres. These houses are unrestricted as to size and occupancy.

Affordable Housing:

The Smiths promote this amendment as a means of alleviating a housing crisis in Fauquier County. The fair market rental for a two-bedroom unit in Fauquier County is $1,225, and the annual income required to make this unit affordable as $49,000. 

A study  prepared by the Rappahannock Rapidan Regional Commission Workforce Housing Working Group reports that in 2004, the median housing sales price in Fauquier County was $347,000.  The income required, per the report, to purchase a house at that price was $80,000.  Based on this analysis, 95% of the full-time permanent employees of Fauquier County General Government, at FY 2007 salary levels, cannot afford (based on their individual salaries) to purchase a home in Fauquier County at the 2004 median housing sales price.  In May of 2006, the Fauquier Democrat reported that the average home price in Fauquier County is now $508,000. 

Family housing units are recognized as a way of   alleviating a shortage of affordable housing, not only for the renter but also for the owner who now has supplemental income to apply against rising mortgage, insurance, and tax costs.  A plus side of this method (using second dwellings for rental units), as opposed to proffers or other means of securing affordable units, is that the program is free of government monitoring and bureaucratic control. It is market driven. The process runs itself.

The Smiths’ proposal begs the question whether their proposed amendments will encourage the building of more family dwelling units. Twenty-three were built in 2004. Fourteen were built in 2005.  Fourteen were built in 2006.

This proposed text amendment was initiated by the Smiths. A copy of their transmittal letter is attached. On July 27, 2006, the Planning Commission conducted a work session on the proposed amendment.  A public hearing also was held on July 27, 2006.  After closing the Public Hearing, the Planning Commission voted to conduct a second work session on August 31, 2006. During the work session, the Planning Commission separately discussed each of the Smiths’ amendments to determine if there was any consensus or majority on any item.  On each item, the Planning Commission found they could not support the changes. Members of the Planning Commission did note that affordable housing is an issue that warrants their attention but felt that this was not the vehicle for addressing that issue. At its regular 4:00 p.m. meeting, the Planning Commission unanimously voted to recommend denial.

The Board of Supervisors conducted a public hearing on October 12, 2006. At that time, the Board of Supervisors indicated general dissatisfaction with the Smith proposal and requested staff to prepare an alternative within certain parameters.  At the request of Mr. Smith, the Board of Supervisors did not vote to deny the Smith proposal but allowed it to remain active pending consideration of the alternative prepared by staff. 

A work session on the alternative prepared by staff was held on January 11, 2007. During the work session, members of the Board indicated that affordable housing was an issue of concern, but that the pending text amendment was not the proper vehicle; any subsequent action in this regard will require initiation of a new text amendment by the Board of Supervisors or the Planning Commission.  The Board of Supervisors asked staff to place the Smith proposal on their regular agenda for February for final action.


Identify any other Departments, Organizations or Individuals that would be affected by this request:

Department of Economic Development


1.      Text Amendment to the Zoning Ordinance

2.      Lee & Donna Smith Justification Letter


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