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HomeMy WebLinkAboutBZA 04-21-98 Meeting AgendaU AGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia 3:25 p.m. 1) Minutes of March 17, 1998 April 21, 1998 CALL TO ORDER PUBLIC HEARING 2) Variance #004-98 of Roy and Crystal Combs for a 50 -foot side yard setback variance (north) to permit construction of a single-family residence within 200 feet of a working orchard. The property is located on Germany Road, north of the intersection of Rt. 625 and Rt. 629, and is identified with Property Identification Number 73 -A -48A in the Back Creek Magisterial District. 3) Other - Information on Petition for Review of Hogue Creek Country Market Site Plan C� :7 • MEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on March 17, 1998. PRESENT: Manuel Sempeles, Jr., Chairman, Stonewall District; James Larrick, Jr.,Vice Chairman, Gainesboro District; Dudley Rinker, Back Creek District; Ralph M. Wakeman, Shawnee District STAFF PRESENT: Michael T. Ruddy, Planner I1; Carol Cameron, Secretary CALL TO ORDER Chairman Sempeles called the meeting to order at 3:30 p.m. MINUTES OF FEBRUARY 17, 1998 On a motion made by Mr. Rinker and seconded by Mr. Larrick, the minutes for the February 17, 1998 meeting ;were unanimously approved as presented. Variance Application #002-98 of Dorothy Moffett (B -K Office Supply, Inc.) for a 40 -foot reduction (south) and a 45 -foot reduction (west), of the required 100 -foot full screen buffer, for the purpose of expanding the existing structure. This property is located at 1154 Martinsburg Pike and is identified with Property Identification Number 54-A-82 in the Stonewall Magisterial District. ACTION - APPROVED DISCUSSION Mr. Ruddy read the application background and the staff comments, and presented photographs of the property for the Board's review. N Chairman Sempeles called for anyone in favor of the application to come to the podium; Mr. Ben Butler, representative for Dorothy Moffett, came forward. He stated that Carl Pomory, of Shockey Construction Company, was present to show a diagram of what the site looks like now and what the added foundation would be. Mr. Pomory said there were two methods of construction that they were considering; one would be a pre -cast roof with a masonry bearing wall. If that were the case, then they would have to move two feet further to the south from the existing building Iine [on the freezer pad]. This would increase the amount of footage requested to 60 feet. Mr. Pomory also added that there were some mathematical mistakes made which worked to everyone's favor Mr. Ruddy pointed out that an amendment to the request for more than what was advertised would not be possible today; Mr. Butler interjected that they would stick with their original request. Mr. Pomory presented a copy of the plan to the Board to show them what they had in mind for the construction. Mr. Ruddy asked that the plans be made a part of the official record. Discussion followed as the Board members looked over the plans and considered variations on construction possibilities. Mr. Rinker asked what the height of the building would be; Mr. Pomory replied that it was a 16 -foot eave height but there was some question as to whether it was actually 23 feet. Mr. Larrick asked about the proposed buffering. Mr. Ruddy replied that it could be six-foot high opaque element, a berm, a wooden stockade fence, and landscaping in front of that, such as trees --three for every ten feet of distance. That would be up to the applicant. Mr. Pomory replied that the engineer will take care of the screening according to the codes and requirements of Frederick County. Mr. Ruddy offered that this could be taken into consideration at the site plan stage. Mr. Rinker asked if there would be loading dock doors on the south side and Mr. Pomory replied that there would be one drive-in door on the south side and one loading dock door on the west side. Mr. Rinker also asked if the building would go right on the existing foundation; the answer was affirmative. Mr. Ruddy suggested that the Board may want to consider the request in two different parts as they have done in the past. Mr. Larrick and Chairman Sempeles did not feel that this was necessary, and Mr. Larrick commented that he believed this request to be an improvement. Chairman Sempeles asked for anyone else in favor of the application to come forward. Mr. Preston Moffett and Oren Ritter were present but did not wish to speak. There was no one present to speak against the variance request. Kj Mr. Larrick made the motion to approve the 40 -foot reduction (south) and a 45 -foot reduction (west), of the required 100 -foot full screen buffer, provided that, and contingent on, the full -screen buffer; Mr. Rinker- made the second. The motion passed by unanimous vote. BE IT RESOLVED, that the Frederick County Board of Zoning Appeals does hereby approve by unanimous vote, Variance #002-98 of Dorothy Moffett (B -K Office Supply, Inc.) for a 40 - foot reduction (south) and a 45 -foot reduction (west), of the required 100 -foot full screen buffer, for the purpose of expanding the existing structure. Variance Application #003-98 of M M & O Partnership for a 1.11 -foot side yard and a 21.82 -foot rear yard setback variance to construct an equipment and material storage building. This property is located at 812 North Kent Street and is identified with Property Identification Number 54-A-64 in the Stonewall Magisterial District. Mr. Ruddy read the application background and the staff comments, and presented photographs of the existing building and the new addition, and the distance away from the property lines. Mr. Larry Orndoff, applicant, came to the podium to speak on behalf of the request. He stated that the building was constructed without a permit and they were informed that in order for them to `fire rate' the building, they would have to come into conformance [with Frederick County codes]. He spoke with the adjoiners and none had objections to the building as it is. He added that the problem with the parking is why the building was set the way it was. He offered to do whatever was necessary to keep the building and obtain the fire rating. Chairman Sempeles asked about the building being constructed without a permit. Mr. Omdoff replied that the owner told them to go ahead with the building, then went to Florida. They were under the assumption that the owner had handled the permit part of it; the owner assumed they would take care of it. Mr. Rinker asked if there was a chain link fence around the back of the building and what does the building back up to. Mr. Orndoff replied that there is a chain link fence around the complex and that the Taylor property is just a big, empty parking lot now. He thinks there is some sort of injection -plastics molding business there, and Mr. Plumly [Plumly's Lumber] owns the rest of the property. Chairman Sempeles asked how long the building has been up; Mr. Orndoff replied that it's been up since about this time last year. Mr. Rinker asked if they were trying to obtain the fire rating for insurance purposes; Mr. Orndoff replied that they were trying to conform to the building code which would require two sheets of/z inch drywall on the south and west sides. in Chairman Sempeles asked what would happen if the request were denied. Mr. Ruddy replied that the building would have to be torn down and replaced with a smaller one. Discussion followed on the size of the building (70' x 12'), whether the units were rented out (no; used for individual job storage), why didn't anyone notice that there was no permit posted, who did the actual construction, and would they be willing to take the building down. Mr. Orndoff stated that they would be willing to take down two units and put up the fire walls. Mr. Larrick suggested a 15 -foot rear yard setback variance (which would entail the removal of the end storage unit) instead of 21.82 feet, and allow the 1.11 -foot on the side. He added that he did not want to condone not getting a building permit. Mr. Rinker commented that he did not believe that the request would hurt the value of the other property. Mr. Larrick moved for approval of the 1.11 -foot side yard setback variance and amend the 21.82 -foot to a 15 -foot rear yard variance; Mr. Rinker seconded the motion. The motion passed unanimously. BE IT RESOLVED, that the Frederick County Board of Zoning Appeals does hereby approve by unanimous vote, Variance #003-98 M M & O Partnership, for a 1.11 -foot side yard setback variance and a 15 -foot rear yard variance, as amended, to construct an equipment and material storage building. ADJOURNMENT There being no further business to discuss, the meeting was adjourned at 4:10 p.m. Respectfully submitted, Manuel G. Sempeles, Chairman Carol I. Cameron, Secretary A:VNIN=S11998\MAR 17. BZA BZA REVIEW DATE: 4/21/98 VARIANCE #004-98 ROY AND CRYSTAL COMBS LOCATION: The property is located on Germany Road, north of the intersection of Rt. 625 and Rt. 629. MAGISTERIAL DISTRICT: Back Creek PROPERTY ID NUMBER: 73 -A -48A PROPERTY ZONING & USE: Zoned RA (Rural Areas) District; Land use - Apple Orchard ADJOINING PROPERTY ZONING & USE: Zoned RA (Rural Areas) District; Land use - Apple orchard and residential VARIANCE: A 50' sideyard setback variance (north) to permit the construction of a house within 200' of a working orchard. REASON FOR VARIANCE: Applicant states that due to narrowness [of lot], the only location is 150 feet from the orchard on the north. All other boundaries conform. STAFF COMMENTS: Within the RA (Rural Areas) zoning district, the minimum side and rear yards for a principal structure when adjoining an orchard is 200'. The requested 50' variance would place the proposed structure 150' from the side yard to the north. In June of 1997, the Board heard variance application 4008-97. In this application, a 110' north side yard variance and a 135' west side yard variance for construction of a single-family residence were requested. The Board of Zoning Appeals denied the request for both variances. It is staff's belief that this current variance request is somewhat different from the above request in that the applicant is proposing to construct a smaller house in a different location on the property, and, therefore, may be reconsidered. Combs Variance Page 2 April 13, 1998 Staff does acknowledge the position of the Board of Zoning Appeals in denying the previous request. However, as before, staff is of the opinion that the requested side yard variance would be necessary to allow for the construction of a residence on the parcel. Strict application of the zoning ordinance would create an undue hardship and effectively prohibit the use of the property for residential purposes. This two -acre parcel was created as a residential lot in 1989 prior to the implementation of increased setback requirements in the RA zoning district. While respecting the increased setback requirements adjacent to orchards, the applicants appear to have located the house as far away from the existing orchards as possible, unlike in the previous application. For your information, I have included the following review of the motion for denial made at the Board meeting: Mr. Rinker's motion: `Mr. Chairman, I make a motion for denial of the requests because in our handbook, Powers and Duties of the Board of Zoning Appeals Board, on page 7 under item B, `in granting a variance, the Board may not make any decision which is contrary to the purpose and intent of the Zoning Ordinance. ' The Zoning Ordinance out in that area is rural agriculture, so that would take precedence over a building lot, in my mind. Also in D, on the same page, `the Board may not grant a variance unless strict application of the terms of the Zoning Ordinance prevents a reasonable use of the property. A reasonable use is not necessarily the most profitable use of the property, 'and the property still has value as agricultural land at two to three thousand dollars an acre. Also, on page 8 under F, `the public interest must be served. A major consideration in deciding on an appeal for a variance is whether granting the adjustment will serve the public good. The more the Board may not grant an adjustment when the action would injure or endanger other property or persons. In consideration, the public interest is important to the review and purpose of zoning, according to Virginia Code 15.1-489, 'and under that section vested item number eight `to provide for the preservation of agriculture and forestal lands' and to preserve agriculture in the integrity that it is, being an orchard in that area, granting these variances would hinder that. I move to deny both variances on the grounds listed. " The Code of Virginia, Section 15.2-2309(2) states that no variance shall be authorized by the board unless it finds that a) strict application of the ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity, and; c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. STAFF RECOMMENDATION: Approval of the side yard variance as requested as an undue hardship does exist that is not shared generally by other properties in the vicinity. Furthermore, the authorization of this variance will not be of substantial detriment to adjacent property and will not change the character of the district. Variance #004 —98 .;. ;:... r.u. ■oy . Crystal Combs All ......... zoning • • .: ► is RAur.uuo.. .•uuuu Produced by Frederick County Planning and Development r..rruun . vim. ■un Page 1 of s APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA 1. The applicant is the owner other JV . (Check one) 2. APPLICANT: n AX=UPAM: (if different) NAME: f�M V . OC s�n l C ren b5 NAME: R V l/j!o IP' tee s ADDRESS —l_ 0 (o � �a sex aia � �C �� ADDRESS : Coe-� vp(3_i TELEPHONE: 4 0 -7a a- 6 TELEPHONE: 6110 -131l -.5q97 3. The property is located at (give exact directions and include State Route numbers): Q4 C e •% �' yr n �tt.>c L.¢.,7r �,7 � 7"/1 E n C C ��- Cj )0d, /"rrf �+ /( ry► e'_}e. !S ee �, l �Y-� cls �'- CLs1L' r r �7`%�a;� S• . pct/e ' e6u) Pa SGA" 4. The property has a road frontage of -�-jo.Vr feet and a depth of 3E5; 11 feet and consists of � wc, acres. (please be exact) 5.. ,. The property is owned by /?0 Y. We/pe, evidenced by deed from G;, recorded v = (previous owner) x_� deed book no. 13 on page e deed ,. books of the Clerk of the Court forFreder ck County. thAttach �k� a -co of th d d Page 2 of 5 6. Magisterial District: BoctL &L-m/r. 7. 14 -Digit Property Identification No.: 73 A q;FA 8. The existing zoning of the property is: ,`u,vi /¢rm 9. The existing use of the property is: App/_ w,-vAae d 10. Adjoining Property: USE ZONING North East South West 11. Describe the variance sought in terms of distance and type. (For example: "A 3.5' rear yard variance for an attached two car garage.") �Pp' eco( ero.rd (.{il VCA-(_'cuAcz CNO"V- 11 ww4' C?J 7�i n s b0 GL ujo rl i'n q _O . C n Q t'� . :. . 12. List specific reason(s) why the variance is being sought in terms of: exceptional narrowness, shallowness, size or shape of property, or - exceptional topographic conditions or other extraordinary situation or condition of property, or the use or development of property immediately adjacent thereto Toe'i�L !>arr©cy•�HS�1�+� /1 � CaCct�A40n /5 16-0 � � p r r( /._ 77�� p�c%u�d n c? r lye . /'y 1� 4A. Dd)ctnd1CL;11 o o -. _Additional comments, if any NX`�� r C4 4,L)US m f`rt-,dNtr,cJ_- fi qY��w OL 6ct 1d'� o pops 3015 14. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the variance is being sought, including properties at the sides, rear and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notifd by mail of this application: 13o¢ 5. L���lst.� NAME r,�P Address 7�v y� p eek, M I y ss c G '7 Property ID# '7 3 A -,:3 6J led � NAME J«.,,Ns NTr'mc�.�, ii Address PropertyID# '73f4 `I'? 4 „4 '73 A X7-9 NAME L, C.� . Property ID# 173 NAME Property ID# NAME -r Ai a", I,— Address CL) n C hc± Address Address Property ID# NAME Address Property ID# NAME Address Property IN NAME Property ID# Address NAME Address Property ID# NAME Address Property ID# Page 4 of 5 15. Provide a sketch of the property (you may use this page). Show proposed and/or existing structures on the property, including measurements to all property lines and to the nearest structure's) or, adjoining properties. Please include any other exhibits, drawings or photographs with this application. Adjoining Property YOUR PROPERTY Adjoining Property _ o v � t _r � IAddi, hon y $ IP-aaerly Line I - ------------ - -- - - - -- ---Canter of Road — - ----- Road OW THESE MEASUREMENTS (i�- d C0-L-U�n� CL P� A a 0111 C'd Cl�n d 4 L E 6° 2 -4 4 N ZE LL m LLLL n D � -j cr N Ldwm Y 04 O O p � O O CV `" ' N 29. 29 03 E o T ' � - 230.98' 2 VA. ROUTE 625 o—IRON PIM ( FOUND) O—IRON PN (SET) APPROVED TRACT I ONLY: WINCHESTER -FREDERICK COUNTY HEALTH DEPARTMENT /I i}/81r �.G sA.0 i*»R�.� u ,ly,ALTIJ GF FREDERICK COUNTY O l PLANNING DEPARTMENT GLEN EBERT_ �!/1�,l - �Z Z7-S"j (LICENSE) No. ww'�' 1498 SUBONISION EXCEPTIONS AS N07ED m -f'4D g1JRY£`ll� % 3 2 00 PAGE I OF 4 BK734PC0937 TRACT 2 {S S 29. 29' 03" W - 245.82' 20 fV M to W O M p d � 0 � W M N `° 3 co ti u I` to L6 o To'SOD i 04 O O p � O O CV `" ' N 29. 29 03 E o T ' � - 230.98' 2 VA. ROUTE 625 o—IRON PIM ( FOUND) O—IRON PN (SET) APPROVED TRACT I ONLY: WINCHESTER -FREDERICK COUNTY HEALTH DEPARTMENT /I i}/81r �.G sA.0 i*»R�.� u ,ly,ALTIJ GF FREDERICK COUNTY O l PLANNING DEPARTMENT GLEN EBERT_ �!/1�,l - �Z Z7-S"j (LICENSE) No. ww'�' 1498 SUBONISION EXCEPTIONS AS N07ED m -f'4D g1JRY£`ll� N0° V PAGE 2 OF 4 BK734nc0938 \1-0 i (c f rn0. o ' 0'B GINNO9 315 - 'P209 sNApp 8 a•g %pP IO P• 5j9 5 O Q saa oI3 P• 469 ' B� (20,61') O Dg 3 2Ck\` /4 6• 15 ��a a �z 5' L0 w � ,•� N 4• W F-- �' D ya jn TRACT 2 3m 27.687 ACRESco 3 > CHAPTER 18, a a ARTICLE 1, h SECTION 1-2-35.1.1 w (20.00-) �c 3m 20 ..2 TRACT 16 /8 !9 1 OC - a d j PACkNO_�� . P S7 I CORP. 1 ( 20.02') HUFFMAN Si�E D.8. 573 P-850 •�,�,,. �,ZLTII U� L J l Ai r� Etl RT r: (LICENSE=) N0. 11'�n runvt 10 Page 3 of 3 AGREEMENT VARIANCE # 9 I (wee), the undersigned, do hereby respectfully make application, and petition the Frederick County Board of Zoning Appeals (BZA) to grant a variance to the terms of the Frederick County Zoning Ordinance as described herein. I agree to comply with any conditions for the variance required by the BZA. I authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I understand that the sign issued to me when this application is submitted must be placed at the front property line at least seven (7) days prior to the BZA public hearing and maintained so as to be visible from the road or right-of-way until the hearing. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF APPLICANT u6,za, SIGNATURE OF OWNER DATE / g Ay (if other than applicant) o y 1 c i 4e) r us } BZA PUBLIC HEARING OF -OFFICE USE ONLY- - DATE - APPROVAL SIGNED: DENIAL DATE: ACTION: BZA CHAIRMAN Sewage Disposal System Construction Permit PAGE !_0F z Commonwealth of Virginia Department of Health r Health Department Health Department Identification Number 5 �' 3 Yr 1 `f z Map Reference - General Information New Repair ❑ Expanded ❑ Conditional ❑ FHA ❑ VA ❑ Case No. Based on the application for a sewage disposal system construction permit filed in accordance with Section 3.13.01, a construction permit is hereby issued to: Owner A L 59 Ir 4J4. G Address y G✓i! `� S� P TelephoneZZ/o e For a Type . Z Sewage disposal system which is to be constructed on/at 'e7' • 6 2 5' Subdivision Section/Block Actual or estimated water use a • Lot R o i�oa« DESIGN Water supply, existing: (describe) NOTE: INSPECTION RESULTS comments ct°ry yes ❑ no To be installed: class - G. W. 2 Received: yes ❑ no ❑ not I cased _.�a grouted pp icable ❑ Building sewer: Building sewer: .—Yes PVC 40, or equivalent. Satisfactory Yes ❑ no ❑ comments Slope 1.25" per 10' (minimum). ❑ Other Septic tank: Capacity ��'��' gals. (minimum). ❑ Other Pretreatment unit: Yes ❑ no ❑ comments Satisfactory Inlet-outlet structure: PVC 40, 4" tees or equivalent. Inlet-outlet structure: Y� ❑ no ❑ comments ❑ Other _ Satisfactory Pump and pump station: No JR Yes ❑ describe and show design. g Pump S pump station: Satisfactory es Y ❑ no ❑ comments if es: Y Gravity mains: 3" or larger LD., minimum 6" fall per '00 Ib. crush strength or equivalent. Conveyance method: Yes ❑ no ❑ comments �(O�the-.r Satisfactory Distribuion box: Precast cfoncrete with 6d ports. Distribution box: Satisfactory Yes ❑ no ❑ comments [3 Other _ ader lines: terial: 4" I.D. 1500 Ib. crush strength plastic or equiva- Fm Header lines: Satisfactory Yes ❑ no ❑ comments t from distribution box to 2' into absorption trench. pe 2" minimum.Other Percolation lines: Gravity 4" plastic 1000 Ib. per foot bearing load or Percolation lines: Satisfactory Yes ❑ no E] comments equivalent, slope 2" 4" (min. max.) per 1001. ❑ Other _ enches: Absorption trenches: FAbsorption uired !� : depth from ground surface Satisfactory Yes ❑ no ❑ comments trench ' ; aggregate size f- / �� Trench bottom slope 2 ' center to center spacing; trench width '�_ _s Depth of aggregate i�r` Date Inspected and approved by: Trench length - 51'_; Number of trenches 6' CHS 202A Revised 6.'84 5anitarlan II -2 Health Department Identification Number Schematic drawing of sewage disposal system and topographic features. 5D-yci - /Y 7 PAGE �_ OF -a— Show the lot lines of the building lot and building site, sketch of property showing any topographic features which may impact on the design of the system, all existing and/or proposed structures including sewage disposal systems and wells within 100 feet of sewage disposal system and reserve area. The schematic drawing of the sewage disposal system shall show sewer lines, pretreatment unit, pump station, conveyance sys- tem, and subsurface soil absorption system, reserve area, etc. When a nonpublic drinking water supply is to be located on the same lot show all sources of pollution within 100 feet. ❑ The information required above has been drawn on the attached copy of the sketch submitted with the application. Attach additional sheets as necessary to illustrate the design. QLa.v� Sua�Or.� '�U'tiQLt ,1111 R Ili -1,1l �r S. Illl�l �NL r 01 -M dei -S►SI^r. rgNR k�xoi a• f.e.li�<L •, r N(Owi� do li � i 2t:;1 24j ; 04 Nesse },m tw►�tt prt✓P. t;,r Na'X y 4 Igor '- sas' N rT- -rf s 4l; `r The sewage disposal system is to be constructed as specified by the permit ® or attached plans and specifications ❑ . This sewage disposal system construction permit Is null and void If (a) conditions are changed from those shown on the application (b) condi- tions are changed from those shown on the construction permit, No part of any Installation shall be covered or used until inspected, corrections made if necessary, and approved, by the local health department or unless expressly authorized by the local health dept. Any part of any installation which has been covered prior to approval shall be uncov- ered, 11 necessary, upon the direction of the Department. �-- Date: ZZ Issued by: __._ � I This Construction Sanitarian i � �' Permit . lid t�ntii Date: ._ fleviewed by: ...T_ IL_ JI __ - -- . - -- Supervisory Sanitarian ---------------------------------------------- If FHA or VA financing Lyt Reviewed by Date ___ Date Supervisory Sanitarian Regional Sanitarian C H.S 202B Ray -sod 6'34 II -24 _J--L-�, L �.y�% _�G` 1, � .%✓�-� � -� -A. - � .P/� f j�.�,:-�-f' 0 �" r All _J--L-�, L �.y�% _�G` 1, � .%✓�-� � -� -A. - � .P/� f j�.�,:-�-f' 0 �" • C7 COPY FOR YOUR INFORMATION MEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on June 17, 1997. PRESENT: Manuel Sempeles, Jr., Chairman, Stonewall District; James Larrick, Jr.,Vice Chairman, Gainesboro District; Dudley Rinker, Back Creek District; and Harold Nichols, Opequon District; Ralph M. Wakeman, Shawnee District STAFF PRESENT: Michael T. Ruddy, Planner I; Carol Cameron, Secretary CALL TO ORDER Chairman Sempeles called the meeting to order at 3:30 p.m. MINUTES OF MAY 20, 1997 On a motion made by Mr. Nichols and seconded by Mr. Rinker, the minutes for the May 20, 1997 meeting were unanimously approved as presented. PUBLIC HEARING (3:35 p.m.) Variance #008-97 of Mike and Diana Crites for a 110' side yard variance and a 135' rear yard variance for construction of a single-family residence adjoining a working orchard. The property is located on Germany Road, north of the intersection of Rt. 625 and Rt. 629, and is identified with Property Identification Number 73 -A -48A in the Back Creek Magisterial District. ACTION - DENIED DISCUSSION 2 (Mr. Larrick entered at this point.) Mr. Ruddy read the background information on the request. He stated that there were alternative locations for the well and drainfield, and that staff recommended approval of the side yard variance as requested and denial of the rear yard variance as requested. He also referenced three letters of opposition (copies attached) which were duly entered into the record. Chairman Sempeles called for the applicant to come to the podium. Mike Crites, applicant, came forward and introduced himself and his wife, Dianna. He handed out sketches of the property (a total of five pages) which depicted various angles of house placement: (1) 50 feet from the Huffman property; (2) 200 feet from each orchard; (3) 50 feet from the Huffman property, 65 feet from the west orchard and 90 feet from the north orchard; (4) four days of wind flow at 6:30 p.m., and (5) depiction of pine trees to be planted six feet apart as soon as the home is completed along the west and north sides of the property. He also stated that they would be willing to attach to the legal agreement a statement that they, or anyone else who may ever purchase the property, must know that there are variances and that they, or anyone else, could never come back on any orchard grower or sue anyone for drift that may come from the sides of orchards as long as the chemicals are applied according to label and EPA standards. Mr. Rinker asked the applicant to re -read the last statement and questioned the legal aspect of that. He asked if the Crites' had run this by an attorney yet; Mr. Crites replied that they had not. Mr. Rinker asked if this could legally be done. Mr. Ruddy replied that he did not see why not, that many subdivisions have provisions in their deed covenants such as fence requirements, etc. Mr. Larrick said he would not give a legal opinion; however, his gut feeling was that it would be a very difficult thing to enforce. He stated that the actual concern seemed to be not so much the side yards but the rear yard. One way they [the Board of Zoning appeals] could approve a variance is if a lot is not buildable. The house could be brought closer in even though the rock ledge is there. Discussion followed regarding the wind direction, the slope of the land, and the recommended location of the septic on the perk permit. Mr. Ruddy presented photographs, one from the road right-of-way, the second from the proposed house location, the third of the area between the rock ledge and road right-of- way. 3 Mr. Rinker asked about the stakes which show in the pictures. Mr. Crites replied the tall stakes depicted the relay box for the septic system; the small stakes showed the distances that they would have to stay from the property. He said that a 60' x 90' house sounded big but that counted everything including deck, garage and/or patio. Mr. Rinker asked if there was a more recent septic permit since the one in the application package expired in 1994. Mr. Crites replied that there was and that his wife had the information. Discussion followed on distances required by the Health Department for placement of the well. Mr. Crites asked if you have to stay 200' from the orchard on the east side (across the road). Mr. Ruddy replied that it would be 60' from the road right-of-way. Mr. Crites said that seemed like a double -standard to him; Mr. Ruddy conceded that this was a shortcoming in the Ordinance. Mr. Nichols interjected by saying that someone needs to straighten that out, that it was not right and that it was not this Board's job but it was Mr. Ruddy's job to get on the stick and get the Planning Commission or somebody to straighten that out and make one rule so there's no gray area. Mr. Ruddy responded that there certainly was a shortcoming in the ordinance but that it was not an issue in this particular situation. He said that Mr. Nichols and his son have both been very vocal about that requirement, and indeed they know the process they would have to go through to get that addressed by the Planning Commission. He said staff would encourage them to do so. Mr. Crites asked if the 200' from an orchard rule was more important than being 60' from the road. Mr. Ruddy explained that when the Ordinance was written in 1991, the intention was 200' all around, but since he wasn't around at that time, he could not explain the discrepancy and again stated that it was not an issue in this case. Chairman Sempeles suggested tabling the application until next month to allow more time for discussion. Mr. Larrick reminded him that changing an ordinance could not be done in 30 days, and Mr. Ruddy stated that all the facts they needed to make a decision was before them. Mr. Larrick asked for clarification from the applicant as to whether he believed he needed 200' from the front. Mr. Crites replied that he assumed that was the case. When Mr. Lamick pointed out that staff was recommending that he go 60' from the front, Mr. Crites replied again that he thought this was a double standard. 11 Betty Von Snapp, Realtor (representing the Crites), came to the podium to speak in favor of the applicant. She and her husband, Alfred, planted all the Stayman apple trees on the property. She presented the new septic permit on the property. She said that the reason she and her husband did not even consider placing the house 60' from the front is that both septic permits, the original and the new one just presented, recommended placing the house behind the rock ledge and the septic system. She also cited the view from the west which she conceded had nothing to do with hardship but pointed out that a house built under a hill rather than on the hill is a pitiful excuse. She understands that the intent of the 200' rule is to protect the orchardist, as she has been in that position herself. However, she felt that when the Crites agreed to sign a disclaimer against any rights of grievance against orchard practices, that as an orchardist she would have felt comfortable having that running with the land on a deed that went from one owner to the next. Mrs. Snapp also brought up the point about the rock ledges being a factor, and respectfully requested that the variance be granted as requested. In response to Mr. Larrick's question regarding actual ownership of the property, Mrs. Snapp replied that the property is owned by William S. (Steve) Snapp, Alfred Snapp's cousin. The other two acres are owned by the bankruptcy court, and are currently in orchard. In response to Mr. Rinker's question as to who was maintaining the two acres, Mrs. Snapp replied that it was Mr. Nichols. Mr. Rinker asked for assurance from Mr. Nichols that he would be abstaining from the discussion. Further discussion ensued regarding the property lines to the Huffman property, the orchard on the west being only a few rows of trees, and the residential property owned by the Willemsma's. Mr. Larrick questioned the possibility of turning the property into a three -acre lot, and Mrs. Snapp replied that Steve (Snapp) was not willing. Mr. Rinker asked what was the agriculture (orchard) land value right now, Mrs. Snapp replied that it was between $2,000 to $2,500 an acre. Diana Crites came to the podium to speak in favor of the application. She wanted to point out that the orchard on the west side, after they measured the trees, doesn't actually start until 30 feet past the property line. So, from the first tree to the back of the deck of the home, it would be 95 feet, which would be more footage than what they were already approving on the north side. Mr. Nichols pointed out that he did not believe it made any difference where the first row of trees were, that it mattered only where the property line was. Mrs. Crites stated that she believed this to be a unique situation and should be `grand fathered' because this land was subdivided in 1989 before the law was passed in 1991. Wi Chairman Sempeles asked Mr. Ruddy for a comment on that statement. Mr. Ruddy replied that it was a legally nonconforming lot and that the two acres could be built upon; that's what it was subdivided for. Mr. Rinker asked if all the property surrounding it was RA (Rural Areas); Mr. Ruddy replied that was correct. There was no one else to speak for or against the variance. Mr. Rinker stated that when the 200' rule was established, it was to protect the rights of the orchardists and the activities it takes to produce fruit. He acknowledged that there were times that friends and neighbors come before the Board and that it would not be easy to make the decision when the time came. Mr. Larrick suggested voting on the variance in two parts like they've done in the past since there are two requests: the side yard and the rear yard. Mr. Rinker asked if the ordinance takes away the value of the property to the point of confiscation. He also disagreed that there were two different issues by stating that 200 feet is 200 feet. Discussion followed about approving or disapproving one or both parts of issue, whether there was a plat for the house, what size the home would be (60'x 90' as stated before), the option of having a detached accessory structure, and the fact that the Crites decided to put a basement in the home in order to reduce the overall house size to accommodate the ordinance. Chairman Sempeles suggested that the Board act on the approval of the side yard variance as requested and vote on that first. Mr. Rinker's motion: "Mr. Chairman, I make a motion for denial of the requests because in our handbook, Powers and Duties of the Board of Zoning Appeals Board, on page 7 under item B, `in granting a variance, the Board may not make any decision which is contrary to the purpose and intent of the Zoning Ordinance.' The Zoning Ordinance out in that area is rural agriculture, so that would take precedence over a building lot, in my mind. Also in D, on the same page, `the Board may not grant a variance unless strict application of the terms of the Zoning Ordinance prevents a reasonable use of the property. A reasonable use is not necessarily the most profitable use of the property,' and the property still has value as agricultural land at two to three thousand dollars an acre." Chairman Sempeles asked if he was saying that he would deny the variance on both the side and the rear. Mr. Rinker: "Yes, I am saying to deny on both. Also, on page 8 under F, `the 6 public interest must be served. A major consideration in deciding on an appeal for a variance is whether granting the adjustment will serve the public good. The more the Board may not grant an adjustment when the action would injure or endanger other property or persons. In consideration, the public interest is important to the review and purpose of zoning, according to Virginia Code 15.1-489,' and under that section vested item number eight `to provide for the preservation of agriculture and forestal lands' and to preserve agriculture in the integrity that it is, being an orchard in that area, granting these variances would hinder that. I move to deny both variances on the grounds listed." On the motion heretofore stated, and seconded by Mr. Larrick, the Board voted to deny Variance Application #008-97 by the following majority vote: YES (]IN SUPPORT OF THE MOTION FOR DENIAL): Chairman Sempeles; Mr. Larrick; Mr. Wakeman; Mr. Rinker. ABSTAINED: Mr. Nichols abstained from the vote due to a conflict of interest. BE IT RESOLVED, that the Frederick County Board of Zoning Appeals does hereby deny Variance Application #008-97 for a 110' side yard variance and a 135' rear yard variance for construction of a single-family residence adjoining a working orchard. Variance #009-97 of Philip D. McAvoy for a 37.3' side yard variance for an addition to an existing structure. The property is located at 4531 Back Mountain Road, and is identified with Property Identification Number 58-1-1C in the Back Creek Magisterial District. ACTION - APPROVED DISCUSSION Mr. Ruddy gave the background information on the application, and made a point of clarification that the variance request is 37.3 -yard north side yard variance for the construction of an addition to an existing residence. The 37.3 feet is actually the distance from the proposed residence to the property line, therefore, that would require a 12.7 -foot variance. He stated that staff was recommending denial of the application, as a hardship approaching confiscation does not exist. The addition could be constructed in a manner that would not require a variance. Two other conditions exist: vacation of the property line as noted on the plat; and second, the removal of the mobile home from the property within one year. Phillip McAvoy, applicant, came to the podium to speak in favor of the variance request. He stated that he realized his case did not fit into the hardship rules but that it would be a personal hardship if he had to remove the existing foundation. He said that the house (the original structure) was built in good faith, and it was not until he went to get the new survey done that he was told the original survey was incorrect. He also said that he has already had the crawl space constructed, not knowing that he was in violation of the law. In addition, the foundation that exists already has all the plumbing, electric, etc. He said there is no other house for 1,000 feet. Mr. Ruddy presented pictures to the Board that he had taken on a visit to the site. Chairman Sempeles asked Mr. McAvoy if he started construction before he got a building permit; he replied that he did not but that he does have a current, valid permit now and the footers have been inspected. Discussion followed regarding when the latest construction began, whether he has had problems in the past with the Planning Department regarding surveys, etc., the placement of the house, who owns the land behind the property (Harold Baker, Jr.); the possibility of purchasing the property behind his so the lot would not be nonconforming or doing a boundary line adjustment for 50 feet. Other matters discussed were in regard to old methods of surveying compared to newer, more advanced methods (making a difference in property line definitions). Mr. Rinker offered the possibility of tabling the application for 90 days to give Mr. McAvoy the opportunity to contact Harold Baker, Jr. and attempt to get the boundary line adjustment. Mr. McAvoy replied that he already tried that so he wouldn't have to go through the variance process. He stated that a 90 -day waiting period would be a financial hardship. Chairman Sempeles reminded the Board that the property is 1,000 feet away from any other construction. Discussion followed on the 13 acres next door to the property, the probabilities for development and the expense of building in northern Frederick County, and the placement of the septic tank. Mr. Larrick stated that they were talking about 12 feet out in the middle of nowhere, and a man who in good faith attempted to do what he was supposed to do, and suggested the request be granted considering that there was a hardship present. No one else was present to speak for or against the variance. On a motion made by Mr. Larrick to approve the application under the condition that the mobile home be removed and that one property line be vacated, and based on the fact that Mr. McAvoy acted in good faith by building within what he believed to be true and correct boundary lines, and seconded by Mr. Rinker, Variance Application #009-97 was unanimously approved. BE IT RESOLVED, that the Frederick County Board of Zoning Appeals does hereby approve Variance Application #009-97 for a 12.7' side yard variance for an addition to an existing structure. ADJOURNMENT Respectfully submitted, Manuel G. Sempeles, Chairman Carol L Cameron, Secretary • C� • COUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/678-0682 MEMORANDUM To: Board of Zoning Appeals From: Michael T. Ruddy, Planner II A07 Subject: "Petition for Review" of Hogue Creek Country Market Site Plan. Date: April 14, 1998 For your information, the Board of Zoning Appeals received the enclosed letter on March 23, 1998, pertaining to approval of the above referenced site plan. Staff subsequently forwarded the letter to Mr. Robert T. Mitchell, Jr., Attorney for the Frederick County Board of Zoning Appeals, for his review. Mr. Mitchell confirmed in his letter dated April 10, 1998, that the Board of Zoning Appeals has no jurisdiction to hear and decide appeals relating to site plan applications. Furthermore, that appeals relating to site plan applications shall be to the Circuit Court, and shall be filed within sixty (60) days of the action taken on the application. Based upon this opinion, and with the Boards approval, staff will inform Edward D. Menefee and Robin F. Menefee that the Board of Zoning Appeals will not consider this appeal. 107 North Kent Street • Winchester, Virginia 22601-5000 Menefee 4722 Northwestern Pike Winchester, VA 22603 (540) 877-1027 March 20,1998 r/Eric Lawrence Zoning Administrator Dept. of Planning & Development 107 North Kent Street Winchester, VA 22601 Frederick County Zoning Appeals Board 107 North Kent Street Winchester, VA 22601 This is a petition for review of the Hogue Creek Country Market Site Plan approved under the Conditional Use Permit #013-96. The grounds to appeal the decision are based on these issues: 1) The site plan approved on February 6, 1998 extends beyond the represented site plan and the intent of the CUP application presented by the applicant at the Planning Commission and Board of Supervisors' Public Hearings held on November 6 and December 11, 1997 respectively. 2) The decisions made in approving the site plan adversely impact surrounding proper- ties by reducing the enjoyment of our home and affecting the natural character and environment of the area. 3) The expansion of use approved with the installation of a 10,000 gallon Underground Storage Tank is believed to be a major expansion and not within the authority of the Department of Planning. As a result, tractor trailers now traverse the property creat- ing a significant amount of noise. This type of use could not have been clearly consid- ered by the Board of Supervisors when approving the special use permit. Our concerns were first addressed to the Department of Planning as early as October 1997. We made repeated attempts to identify what and how the department would finally ad- dress our concerns. We were not aware of any site plan approval until Fehruary 19. 1998. We do not consider the site plan submission to be complete. A site plan submission cannot be complete until all plans, application materials, and required comments have been re- ceived. Your correspondence, dated November 12, 1997, promises that comments would be obtained from VDOT and that a reply would be forwarded to us. As of this date no reply has been received. A call to VDOT on February 20, 1998 indicated that no written re- quest for comments had been requested after November 12, 1997. { r Edward D. Men fee Robin F. Men( e `/ y>l\ APR -10-98 FRI 04:40 AM HALL MONAHAN ETC FAX NO, 15406624304 HALL, MONAHAN, ENGLE, MAHAN & MITCHELL A PARTNeR2MIP Or PRO�rESSIOMAL C00n09ATIONS WILBUR C,- HALL 11892-1372) THOMAS V, MONANAN —c"Acn. SAMUEL D. ENGLE O. LEL.ANO MAHAN RnRrMT T. MI'fr{-/ELL. JR - JAMES A. KL_N-KA 0 LE:E E. BERLiK ATTORNEYS AT LAW 3 EAS"r -+ R.CT STI:YCYT LF.ESSUI;C, VIRCINIA TCLcr+NONE 703.777-rOSO TELECCPiER ?03.7'I•sI u April 10, 1998 Manuel Sempeles, Chairman Frederick County Board of Zoning Appeals 107 N. Kent Street Winchester, VA 22601 RE: Conditional Use Permit No. 013-96 Menefee "Petition for Review" Dear Manuel: OeA+T 6OSCAWEN STRCe- wINCWESTER. VIRdINIA TELEPmoNe 5a ZZ;, -3200 TELECI.-ea 6+0562•. 30� -L"t; RC'LY -0. WIN P- O. Box 848 WINCHC5'E.R, VIRGINIA 22604-08G$ At the request of Mike Ruddy, Y have reviewed the letter dated March 20, 1998 from Edward D. Menefee and Robin F. Menefee, purporting to submit a "Petition for Review" to the Board of Zoning Appeals to appeal the approval of a site plan for the Hogue Creek Country Market. Pursuant to the provision of § 15.2-2258, Code of Virginia, the provisions of § 15.2-2259, including the provisions governing the appeals related to subdivision applications, apply to appeals relating to site plan applications. §15.2-2259 provides that appeals shall be to the Circuit Court, and shall be filed within sixty (60) days of the action taken on the application. It is my opinion, therefore, that the Board of Zoning Appeals has no jurisdiction to hear and decide appeals relating to site plan applications, and that any such appeals must be to the Circuit Court in accordance with statute. If there is any further questions concerning the foregoing, please contact me. Robdrt T. Mitchell, Jr. RTiVI/lww