Newport Academy Says Zoning Administrator Overstepped Her Bounds in Ruling

In its appeal to the Board of Zoning Appeals (BZA), group home operator Newport Academy said county staff overreached in its determination against a planned facility in McLean.

There have been more than a few stories recently on the Newport Academy’s planned opening of a for-profit therapy program in a McLean neighborhood, but as Fairfax County Board Chairman Sharon Bulova pointed out, it’s an issue that could set precedent in Fairfax.

In May, Fairfax County Zoning Administrator Leslie Johnson issued a letter saying that because the Newport Academy’s three adjacent properties at  1620, 1622 and 1624 Davidson Road shared staff and resources, they were not individual properties eligible for by-right development but as a congregate living facility.

But in the appeal filed to the Board of Zoning Appeals, the Newport Academy laid out its argument that it had been the unfair victim of public backlash and a selective zoning ruling.

“The Newport Academy has been deprived of the right to operate each of the Davidson Properties… as a residential facility for up to eight individuals with mental illnesses as permitted and consistent with [Virginia code],” the company said in the appeal.

The appeal also lays out a timeline of events starting with Newport Academy purchasing one property at 1624 Davidson Road and another at 1318 Kurtz Road. In August, the company sent a series of questions to the Zoning Administrator regarding the prospect of opening multiple homes at Davidson Road, to which zoning answered that the group residential facility may occupy a dwelling unit without any proffered or development conditions and that there was no limitation on the number of group residential facilities.

After this, the appeal says Newport Academy invested millions of dollars on the purchases and renovations for the other properties. Now, the Newport Academy is saying Johnson’s ruling is inconsistent with Virginia law and other codes.

The appeal also alleges that the Newport Academy was the victim of a “sophisticated campaign to turn elected and appointed public officials against Newport Academy’s efforts to provide appropriate mental health services to adolescents in McLean” that included dozens of letters, emails and phone calls from local residents.

The Newport Academy reiterated that it is a group residential facility, defined in zoning ordinance as “a group home or other residential facility with one or more resident or nonresident staff persons, in which no more than eight mentally ill, intellectually disabled or developmentally disabled persons reside… or eight handicapped persons reside.”

Newport Academy alleges in the appeal that Johnson employed external factors without a statutory basis.

“The Zoning Administrator considered factors including common ownership, physical proximity, and programmatic elements of the proposed use at the Davidson Properties, factors not found in either the Virginia statue or the Zoning Ordinance,” the appeal said. “This ‘single facility’ analysis is foreclosed under [Virginia code], which unambiguously invests [the Virginia Department of Behavioral Health and Developmental Services] (VDBHDS) as the sole authority to determine whether a home meets the requirements of being considered a ‘residential facility.'”

The Newport Academy argues repeatedly throughout the appeal that Johnson stepped on the VDBHDS’ role as the licensing agency.

The appeal also points to other group residential facilities in Fairfax, like the properties at 8333, 8337, and 8341 Lewinsville Road, which share a driveway and programming across the three facilities.

When, or if, the appeal will be heard by the BZA is still to be determined. The appeal was received on Friday, June 14, and must be scheduled within 90 days if accepted unless other arrangements are agreed to. Brian Worthy, a Fairfax County spokesman, said that county staff are currently going through the application before the county officially accepts it — a standard procedure for every application.