Tysons Corner, VA

Neighbors opposed to a controversial for-profit therapy program got a win from a Fairfax County zoning official’s letter.

A piece of the Newport Academy’s plans to open a facility treating teenagers with mental health or addiction problems in a McLean neighborhood hinged on that facility being a by-right use — a use that won’t require approval by the Board of Supervisors. But local officials are now saying that isn’t the case.

Fairfax County Zoning Administrator Leslie Johnson said in a letter to local residents that the facility is a congregate living facility, which is not permitted as a by-right use at the location.

According to Johnson’s letter, in August 2018 the Newport Academy sent a letter to the Department of Planning and Zoning stating its intent to open two homes — one at 1624 Davidson Road and one at 1318 Kurtz Road — and asked if it could purchase a neighboring house and operate it as a licensed home.

In response, the zoning staff agreed that the buildings would be considered group residential facilities, which are limited to eight residents. The response did not directly answer whether a neighboring home could be used as a licensed home, and the Newport Academy did not contact Fairfax County after it purchased the properties at 1620 and 1622 Davidson Road.

But Johnson said the Newport Academy’s assertion that the homes were separate operations — crucial for qualifying for the eight resident limit — were contradicted by other applications listing the operations as a single program with residents above the limit for the group residential facility classification.

The appearance of the Newport Academy program being a single facility didn’t stop there. Johnson’s letter to the community notes that in April, county staff learned that a 6-foot fence had been built around the facility, “creating the appearance of a completely enclosed facility.”

Johnson’s letter said the supposedly separate facilities were listed as having shared staff, like a security guard and night staff, in both public meetings and other permit applications.”

According to Johnson’s letter:

Based on the facts available and as outlined above, it is my determination… that the proposed use of the three Davidson Properties as a single facility is most similar to a congregate living facility. A congregate living facility may serve more than eight mentally ill persons receiving on-site supportive services, such as special care and treatment, on a permanent or temporary basis, in a supervised setting with on-site counselors or other staff.

Here, there is a single residential facility, which is comprised of the three parcels that make up the Davidson Properties. In that regard, I base my determination on both the proposed physical layout of the Davidson Properties and on the characteristics of this use, as described in Newport Academy’s Initial and Revised Application and by Newport Academy’s officers. Either set of factors, standing alone, would be sufficient to reach this determination. Together, they are dispositive of the question.

The Davidson Properties will physically and functionally operate as a single facility that provides housing and general care to up to 24 clients on a temporary basis, including extensive on-site supportive services, such as special care and treatment, in a supervised setting with on-site counselors or other staff. This use is most similar to a congregate living facility, which is not permitted by right on the Davidson Properties. Rather, this use requires special exception approval by the Board of Supervisors, because it has the potential to have an undue impact on or be incompatible with neighboring uses of land.

The letter is a win for the neighbors who expressed opposition to the facility and frustration with a process that seemed to lack transparency. However, the ruling is unlikely to be much consolation to residents opposed to the planned facility at 1318 Kurtz Road, which as a standalone property was not considered as part of her review of the facilities.

Johnson’s ruling isn’t necessarily the end of the road for the Newport Academy. Johnson noted that this determination is not a written order or notice of a zoning violation and can still be appealed to the Fairfax County Board of Zoning Appeals.

The Newport Academy could also proceed through the approval process as a congregate living facility, but this has its own challenges. Elected officials — including Dranesville District Supervisor John Foust — expressed unanimous disapproval of the new facility at the April 24 meeting.

“I do not support three houses on the same site,” Foust said at the meeting. “But it is the law. In my opinion, one company buying those properties changes the character of the neighborhood. I oppose that. But we do not see a way to stop it.”

If Johnson’s ruling on the Newport Academy’s zoning status isn’t challenged, she may have given Foust the opening he needs to work on preventing the facility from opening in the McLean neighborhood.

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