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HomeMy WebLinkAboutBZA 01-16-01 Meeting MinutesMEETING 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 January 16, 2001. PRESENT: James Larrick, Jr., Acting Chairman, Gainesboro District; Theresa Catlett, Opequon District; Dudley Rinker, Back Creek District; Gilbank Hamilton, Shawnee District and Robert Perry, Stonewall District STAFF PRESENT: Eric R. Lawrence, Zoning Administrator; Jeremy F. Camp, Planner I; Evan A. Wyatt, Planning Director; Carol Huff, Secretary CALL TO ORDER The meeting was called to order by Acting Chairman Larrick at 3:25 p.m. WELCOME TO NEW MEMBER On behalf of the Board of Zoning Appeals, Acting Chairman Larrick welcomed the newest member, Mr. Robert B. Perry, who replaced Mr. Manuel Sempeles from the Stonewall Magisterial District. MINUTES OF NOVEMBER 21. 2000 On a motion made by Mr. Rinker and seconded by Mr. Hamilton, the minutes for the November 21, 2000 meeting were unanimously approved. ELECTION OF OFFICERS On a nomination made by Mr. Rinker and seconded by Mrs. Catlett, Mr. Larrick was unanimously elected as Chairman for the year 2001, and shall hereafter be referred to as Chairman Larrick. On a nomination made by Mr. Rinker and seconded by Mr. Perry, Mrs. Catlett was unanimously elected as Vice Chairman for the year 2001. Mrs. Huff was reelected as Secretary by unanimous consent. PUBLIC HEARING Prior to hearing the first application, Chairman Larrick explained to those present that Frederick Co. Board of Zoning Appeals Minutes of January 16, 2001 Minutes Book Page 1094 due to the cancellation ofthe December 16, 2000 meeting because of inclement weather, Variance #15- 00 was once again on the agenda. Variance 15 -00 of Stephen P. Scothorn for a 22 -foot front yard setback variance to construct a detached two -car garage. This property is located at 333 Songbird Lane and is identified with Property Identification Number 32 -12 -8 in the Gainesboro Magisterial District. ACTION — POSTPONED TO FEBRUARY 20, 2001 Mr. Lawrence told the Board that he had been contacted by the applicant about increasing the number of feet he was requesting for his variance. As this would require re- advertisement, the application could not be heard until the February 20, 2001 meeting. The Board agreed by unanimous decision to postpone Variance #15 -00 for 30 days. Variance 417 -00 of Michael W. Gunter for a five -foot side yard and 21 -foot rear setback variance for a deck, and a 2.5 -foot rear setback variance for a shed. This property is located at 206 Alpine Meadow Road and is identified with Property Identification Number65E -1 -91 in the Stonewall Magisterial District. Mr. Jeremy Camp, Planner I, presented the background information and explained that this case first came to the attention of the Planning Department after one of Mr. Gunter's neighbors called in a complaint. After an inspection of the property, it was discovered that the deck and shed were in violation of the setbacks and the properbuilding permits had not been obtained which resulted in a violation case being opened. Photographs were made available to the Board. Mr. Michael Gunter, applicant and property owner, admitted that he was ignorant of the setbacks because he thought he could build within five feet of the property line. He told the Board that he did not believe the two decks were attached and did not understand how that conclusion had been reached. He stated that there was confusion over the building permits because he thought the deck was included on the permit for the swimming pool. No one else spoke in favor or against the application. DISCUSSION Mr. Rinker asked where the `three -foot' rule came into play; Mr. Lawrence responded that this was a policy that has been in place for approximately five or six years, that if you can walk from your house onto a deck, it is considered attached. The Zoning Ordinance does not define attached," therefore, it is a matter of interpretation and accepted practice. Mrs. Catlett asked for clarification regarding the issuance of a permit for a deck; Mr. Lawrence confirmed that a building permit for a deck had never been applied for nor acquired. Mrs. Catlett moved for denial of the five -foot side yard and 21 -foot rear setback variance for the deck; this motion was seconded by Mr. Rinker and passed unanimously. Frederick Co. Board of Zoning Appeals Minutes of January 16, 2001 Minutes Book Page 1095 2 At this point, Mr. Gunter withdrew his request for a 2.5 -foot rear setback variance for a storage shed before the Board had a chance to act on it and, consequently, left the proceedings. BE IT RESOLVED, that the Frederick County Board of Zoning Appeals does hereby unanimously deny Variance 417 -00 of Michael W. Gunter for a five -foot side yard and 21 -foot rear setback variances for a deck, and accepts the applicant's withdrawal of the 2.5 -foot rear setback variance for a shed. Variance #18 -00 of Ronald and Marie Wible for a 4.7 -foot side yard setback variance for an existing house. This property is located at 200 Camellia Court and is identified with Property Identification Number 75G- 4 -4A -77 in the Stonewall Magisterial District. ACTION - APPROVED Mr. Lawrence gave the background information and explained that the Wible's situation occurred before the survey standards, which are in place today, were adopted. Given the circumstances, staff believed this variance was warranted. Mr. Wible explained that they wanted to build an addition but the comer of the house was a little over four feet into the side yard setback. They did not realize that the "waiver" they had received in the deed pertaining to the setbacks was not acceptable and were not aware of it until they came in to apply for a building permit. There was no further discussion on the matter. Mr. Hamilton made a motion to approve the variance as stated and Mr. Rinker offered a second. The Board voted with all ayes for approval. BE IT RESOLVED, that the Frederick County Board of Zoning Appeals does hereby unanimously approve Variance #18 -00 of Ronald and Marie Wible for a 4.7 -foot side yard setback variance for a single - family dwelling. Appeal #16 -00 of R.R. Restaurant, submitted by Wharton, Aldhizer & Weaver, P.L.C. on behalf of Arogas, Inc., to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance, concerning the denial of a site plan application for a restaurant in the M2 (Industrial General) Zoning District. This property is located approximately 500 feet south of Rest Church Road (Rt. 669) and Martinsburg Pike (Rt. 11), located between Rt. 11 and 1 -81 and continuing south to Duncan Run, and is identified with Property Identification Number 33 -A -91 in the Stonewall Magisterial District. Chairman Larrick outlined the procedures for the public hearing, stating that each side had 20 minutes to present their case and 10 minutes each for rebuttal. Persons who had signed up to Frederick Co. Board of Zoning Appeals Minutes of January 16, 2001 Minutes Book Page 1096 speak were given three minutes each. The Board agreed by unanimous consent to adopt these rules for this proceeding. Mr. Evan Wyatt, Planning Director, explained the history of this particular case from the time it was initially submitted as a rezoning application up to the time it was re- submitted as a site plan for a restaurant with accessory retail and bulk fuel oil sales. It was Mr. Wyatt's denial to accept the site plan, based on the fact that the proposed primary use of this plan was retail and bulk fuel sales in an M2 (Industrial General) Zoning District, rather than a restaurant, that prompted the applicant's appeal. Ms. Lisa Hawkins, legal counsel representing the applicant, spoke in favor of the appeal. She stated that when their attempts to `down -zone' the property were met with great opposition from the public, they decided to go back to square one and present the application for what they felt was the primary use, i.e. a restaurant with retail sales. She handed out a list of definitions, then referred to three points of Mr. Wyatt's letter which they felt were wrong: 1) the structural floor area definition; 2) square footage /impervious area dedicated to maneuvering for truck traffic; 3) the term fueling positions is not defined specifically in the Frederick County Code. In their opinion, wholesale trade is an acceptable use in the M2 District. After several quotations from the SIC Manual and other points which they felt strengthened their position, Ms. Hawkins ended by contending that the restaurant was the "main game." Mr. Robert Mitchell, Board of Zoning Appeals attorney and representative for staff, started his presentation with the statement that "if it walks like a duck, looks. like a duck and quacks like a duck, it is a duck." Although there is no exact formula for determining the primary use, the Planning Department staff is charged with making determinations based on experience and common sense. The Zoning Administrator has the authority for interpreting the Zoning Ordinance and, after looking at the site plan, determined that the primary use was a truck stop. This is not a permitted use in the M2 District. Mr. Mitchell handed out a compilation of the restaurants which have been built in Frederick County in the past five years and how much land was generally used for each. None of them contained the acreage proposed by the R.R. Restaurant plan. He then handed out the applicant's own rendering of the project entitled "Perspective View" which clearly shows a truck stop. He stated that this presentation by the applicant was a clear attempt to circumvent the Zoning Ordinance. Ms. Hawkins' rebuttal was that there is no definition in the Frederick County Zoning Ordinance for truck stops. She reiterated that it's been their position all along that a restaurant is an allowed use in the M2 District. Mr. Mitchell's response was that the SIC, Number 554, defines truck stops and they are not allowed in the M2 District. Attempts to classify the truck stop as primarily a restaurant use was just an attempt to get around the zoning ordinance, and the Zoning Administrator was correct in his assertion that the site plan could not be accepted. PUBLIC COMMENTS Before the meeting was opened for public comment, Chairman Larrick again emphasized the purpose of the meeting and that no other business would be discussed nor acted upon except that of whether the Zoning Administrator acted appropriately in his decision to deny the R. R. Restaurant site plan application. For the sake of time, Chairman Larrick requested that speakers not repeat what the person ahead of them just said but to just state that they concur with the previous speaker's comments. Chairman Larrick called those who had signed up to speak against the application. Mr. Larry Crim stated that there were already problems with the bridge because of the large number of Frederick Co. Board of Zoning Appeals Minutes of January 16, 2001 Minutes Book Page 1097 4 trucks using it now. Mr. Ed Butler submitted a letter of support from the Concerned Citizens for Safety which fully concurred with the decision of the Zoning Administrator. He stated that there is no way that a facility with 28 fueling bays could be considered primarily a restaurant. Mr. Mark Slivers forfeited his time allotment so that Mr. Butler could finish reading the group's statement. back yard. Mr. Ronnie Edmonds told the Board that he does not want fuel contamination in his Mr. John Rinaldi, an attorney from the Manassas area, stated that he represented the owners of the Stateline Exxon and although his client was not opposed directly to the development of the property, they wanted to make sure that they had to follow the same rules and regulations that apply to others. He urged the Board to apply the law in this case unless the Zoning Administrator was clearly wrong. Mr. Kevin Rice, representative for H. N. Funkhouser, was present not to fight development of property but for the proper development of the property. He said that the property was zoned for bulk plants and bulk storage but not for retail sales of the product. He pointed out that it was evident that the dynamics driving this project related to the amount of truck traffic presently utilizing I -81 and their need for fuel and a place to park, and the price differential per gallon between Virginia and West Virginia. Visualizing the impact a truck stop of this magnitude would have on the area, Mr. Rice concluded that although the need was present, this particular site was not the best place. Mr. Rinker inquired of Mr. Rice what the tax rate was on retail and wholesale fuel sales. Mr. Rice replied that licensed wholesalers do not pay sales tax but anyone who purchased fuel retail would have to pay a retail sales tax. Mr. Rinker asked Ms. Harris what was involved in the accessory retail portion of the restaurant business. She replied that it would be much like a Cracker Barrel; that you could buy soft drinks, candy, gum, and other gift items, and offered to show a picture of the proposed interior. Mr. Rinker asked about the anticipated seating size of the restaurant, rate of patron turnover, and fuel turnover. Ms. Harris said they had not reached that stage of planning yet and could not answer the questions. Mrs. Catlett asked if she understood correctly that they expected the restaurant to generate six times that of the accessory use; Ms. Harris clarified by saying `six times of the accessory retail fuel sales.' Ms. Harris explained that the restaurant AND accessory retail would exceed by six times the gross profit of the fuel pumps (gross product vs. gross sales). Mr. Perry inquired about the business plan and revenue projections for the project by category. Ms. Harris revealed that wholesale sale of fuel generates the most significant revenue and gross profit, then restaurant, then retail sales of fuel, and finally, bulk motor oil. Mr. Perry asked about regulating the ratio of wholesale to retail sales of fuel to remain legal in the M2 District. Ms. Harris replied that she was not clear as to the purpose of the question because according to the Zoning Ordinance, there is no requirement to balance the two, as wholesale fuel sales are an allowed use. Chairman Larrick asked both sides how much weight they [the Board] should give to the Zoning Administrator's decision. Ms. Harris replied that it was a clear case of right or wrong, with no "wiggle room." Mr. Mitchell stated that it was the applicant's responsibility to show the burden of proof that the Zoning Administrator was wrong. Mr. Pat Manning, the developer for this project, told the Board that he had invested two -and -a -half years and $150,000 dollars thus far. He said that he wanted to come to this county with his head held high and invest a minimum of $6,000,000.00 in payroll, local construction contracts, cheap gas and a fine - looking facility. He felt that he was being wrongly portrayed and asked the Board Frederick Co. Board of Zoning Appeals Minutes of January 16, 2001 Minutes Book Page 1098 and everyone present to try to see this restaurant and fueling facility as a positive move forward for the county. After one more question regarding the floor space allocated to the restaurant, there were no other speakers for or against the appeal. Mr. Rinker moved to uphold the decision of the Zoning Administrator and to deny Appeal # 16 -00 of R. R. Restaurant (Arogas, Inc.). Mrs. Catlett seconded the motion and the Board voted unanimously on this conclusion. BE IT RESOLVED, that the Frederick County Board of Zoning Appeals does hereby unanimously uphold the decision of the Zoning Administrator in the administration of the Zoning Ordinance, concerning the denial of a site plan application for a restaurant in the M2 Industrial General) Zoning District, and hereby denies the Appeal of R. R. Restaurant (Arogas, Inc.) ADJOURNMENT As there was no further business, the meeting adjourned by unanimous consent at 5:30 p.m. Respectfully submitted, Ja Larrick, Jr., Chairman Carol . uff, Secretary Minutes of January 16, 2001 Minutes Book Page 1099