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BZA 04-16-02 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 April 16, 2002. PRESENT James Larrick, Jr., Chairman, Gainesboro District; Dudley Rinker, Back Creek District; Thomas Malcolm, Red Bud District (also representing Shawnee District); Robert Perry, Stonewall District; Theresa Catlett, Opequon District; Lennie Mather, Red Bud District; and Robert W. Wells, Member -At -Large STAFF PRESENT Patrick T. Davenport, Zoning Administrator; Carol Huff, BZA Secretary CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. WELCOME TO NEW MEMBERS Chairman Larrick extended a welcome to the new members: Ms. Lennie Mather, Red Bud District, and Robert W. Wells, Member -At -Large. [Note: Mr. Wells was not present at this time. ] MARCH 19. 2002 MINUTES The minutes for the March 19, 2002 meeting were approved by unanimous vote after a motion by Mr. Rinker and a second by Mr. Malcolm. PUBLIC HEARING Appeal of Decision by The Zoning Administrator, Application #07 -02 of Kimerly G. Henry Henry Business Park) concerning the zoning district boundary determination along Fort Collier Road. The parcels are located on Fort Collier Road between Baker Lane and Huntington Meadows subdivision and are identified with Property Identification Numbers 54 -8 -41, 42, 23, 24, 25 & 26 in the Stonewall Magisterial District. ACTION -APPEAL OVERRULED Frederick Co. Board of Zoning Appeals Minutes of April 16, 2002 Minutes Book Page 1141 Mr. Davenport presented the background information on the appeal and the rezoning application ( #029 -87) which precipitated the current set of circumstances. Mr. Davenport directed the Board's attention to several exhibits which depicted various stages leading up to this appeal. Mr. John Lewis, of Painter - Lewis, P.L.C., was present to represent Mr. Henry. He stated that they have operated all along on the assumption that the property in question was zoned B3. Admittedly, there was no formalization of the rezoning following the current layout of Fort Collier Road; however, there was evidence in the Planning Department's paperwork and recollections by those involved at the time (including Mr. Kim Henry) that the rezoning would logically follow Fort Collier Road. Mr. Lewis asked the Board, on Mr. Henry's behalf, to overrule the Zoning Administrator's determination so that Mr. Henry would not be forced to go through another formal rezoning process due to what was either a clerical error or oversight by the Planning Department. He showed the Board a copy of the Comprehensive Plan which showed the zoning line following Fort Collier Road. Mr. Lewis also stated that he had submitted a site plan application for the Kim Henry Warehouse on the B3 portion of the property, and that the Planning Department had approved it. Mr. Lewis ended by saying it was going to cost a lot of time and money to fix something that was obviously an oversight. Mr. Rinker asked who was responsible for the realignment of "Gordon Drive" to what is now known as Fort Collier Road. Mr. Lewis replied that Frederick County. and VDOT were involved, and that the development of the Huntington Meadows subdivision figured into it. Mr. Lewis told the Board that Mr. Henry did not feel that it was his responsibility to change the zoning line; after all, he already had his rezoning and, based on correspondence he had received from the Planning Department, presumed that it had been taken care of. A brief discussion followed regarding when the actual decision was made to change the road alignment and by whom. Also discussed was how much time and expense would be involved in pursuing another rezoning. Mr. Wells joined the meeting at this point.) No one else was present to speak for the application; therefore, Chairman Larrick asked if anyone was present to speak against it. Mr. Evan A. Wyatt, Planning Director, came forward. He indicated on a map display the land which was rezoned in 1987 and explained the history of that rezoning. Mr. Wyatt gave further background information on the Huntington Meadows project, the City of Winchester's renovation project of Berryville Avenue, and other aspects of that time period. He noted that the County, the City of Winchester, VDOT and the developer of Huntington Meadows had all worked together to arrive at a final design plan which resulted in the current layout of Fort Collier Road, Baker Lane and Berryville Avenue. Mr. Wyatt continued by stating that although it was unfortunate for Mr. Henry that the rezoning lines were not changed, ultimately, zoning lines cannot be changed except through formal action by the Board of Supervisors. A rezoning is a legislative act; if a road alignment changes, it does not give tacit approval to also change the zoning lines. No one else was present to speak against the appeal, therefore, Chairman Larrick declared the public hearing closed. A brief discussion followed regarding how the issue could best be resolved, and Frederick Co. Board of Zoning Appeals Minutes of April 16, 2002 _ Minutes Book Page 1142 reiteration on the fact that the Board of Zoning Appeals does not have legislative authority to establish zoning lines. The members concurred that the best solution would be for Mr. Henry to pursue the rezoning of his property by formal application and action by the Board of Supervisors. Mrs. Catlett moved to overrule the appeal and Mr. Perry seconded the motion. The motion was passed by unanimous vote. BE IT RESOLVED, THEREFORE, That Appeal #07 -02 of Kimerly G. Henry Henry Business Park) of the Decision by The Zoning Administrator concerning the zoning district boundary determination along Fort Collier Road was unanimously overruled. Variance #05 -02 of Fort Braddock Heights, Section 2 (Lot 28) submitted by Michael Prelip, Inc. for an18 -foot front yard setback variance to create a buildable lot for the construction of a single - family residence. The property is located off of Fox Drive in Section 2 of the Fort Braddock Heights subdivision, Lot 28, adjacent to the City of Winchester corporate limits and is identified with Property Identification Number 53D- 4 -2 -28 in the Stonewall Magisterial District. ACTION -DENIED Mr. Davenport gave the background information Mr. Prelip's request. The property was originally platted in 1990. The chief reason for requesting this variance is that the applicant wants to situate the house to face the same direction as the existing houses along Mummert Circle. Since the criteria specified in the Code of Virginia are not fully met, Mr. Davenport stated that denying the variance would be justified. Chairman Larrick called for anyone speaking in favor of the variance to step forward; however, no one was present to represent the application. Normally, this would result in an automatic denial of the application. A brief discussion followed in which Mr. Davenport informed the Board that the property had not been posted prior to the hearing and that all legally required notifications had been mailed out. Additionally, there had been no attempts by the applicant to contact the Zoning Administrator either before or after the submission of the application which is a requirement in the variance process. There were, however, a significant number of adjoining property owners present who wished for the application to be heard, as they had made a special effort to be present for the meeting. With this in mind, and in view of the fact that all of the necessary information to make a decision was available in the application, the Board decided to proceed. Chairman Larrick asked for those wishing to speak against the application to come forward. Mr. Bruce Trant (Lot 21) submitted a petition that had been circulated in Fort Braddock Heights which showed that the majority of the property owners were opposed to the variance. They felt that it would create a crowded look and would not be in the tenor of the rest of the neighborhood. He also stated that they were concerned that the smaller, cramped houses would devalue the adjoining property. Mr. Train told the Board that the developer had already begun excavation of the lot but there was no indication of what would be built if the variance was not granted. Mr. Paul Toth (Lot 23) said that this proposed residence was not Mr. Prelip's first endeavor to build in Fort Braddock Heights, and that he has already built several homes there. Mr. Frederick Co. Board of Zoning Appeals Minutes of April 16, 2002 - Minutes Book Page 1143 Toth stated that the builder has known for years what the setbacks were and explained that his personal attempts at keeping Mr. Prelip from building so close to his property line had failed. He felt that this had a detrimental effect on his property value and was opposed to any further devaluation of the entire neighborhood by the building of additional smaller, tightly- spaced housing. There were no other speakers against the variance, as Mr. Toth had stated that all present had voted against it on the petition; therefore, Chairman Larrick closed the public hearing portion of the meeting. DISCUSSION Mrs. Mather asked for confirmation that the lot was buildable. Staff directed the Board's attention to Exhibit `B" and the opposing page which showed a variable of the footprint for Lots 25, 26, 27 and 28. Discussion also took place on whether the Board had the authority to require the developer to restore the lot to its original condition if a dwelling was not constructed, and staff told them that if the lot was not developed in a reasonable amount of time, the matter would be referred to the Public Works department. Questions followed on what size house could actually be built on the lot as it now stands, and that 1,600 square foot is the minimum required by the deed covenants. It was also noted that the Board had no authority to change the platting of the subdivision, nor could it require that any future homes built would be comparable in size and value to the rest of the neighborhood. The Board reminded those persons present that the lot was `buildable' and that they could not guarantee what would be built there if the variance was not granted. There was no further discussion on this application. Chairman Larrick called for a motion. Mr. Rinker moved to deny the variance as requested and Mr. Malcolm offered the second. The motion passed by unanimous vote to deny the request. BE IT RESOLVED, THEREFORE, That Variance 905 -02 of Fort Braddock Heights, Section 2 (Lot 28) submitted by Michael Prelip, Inc. for an18 -foot front yard setback variance to create a buildable lot for the construction of a single - family residence, was denied by unanimous vote. Variance #06 -02 of William and Carol Roberts for a 100 -foot side yard setback variance to create a buildable lot for the construction of a single - family residence less than 200 feet from a working orchard. This property is located in Ravenwood Estates, Lot 1, on Apple Pie Ridge Road, adjacent to Whitehall Orchard, and is identified with Property Identification Number 22 -1 -1 in the Stonewall Magisterial District. ACTION - APPROVED Mr. Davenport presented the staff report on the Roberts' request. He explained that when this property was legally recorded in 1971, the current setback standard of 200' from a working Frederick Co. Board of Zoning Appeals Minutes of April 16, 2002 4 Minutes Book Page 1144 orchard had not been established. This requirement was set forth as an amendment to the Zoning Ordinance on August 9, 1993. Although other properties throughout the zoning district had the same setback requirements, in this particular instance strict application of the ordinance could result in a potential "regulatory taking." Mr. Davenport concluded by stating that granting of the variance would be justified under these circumstances. Chairman Larrick asked for clarification of the term "regulatory taking." Mr. Davenport explained that ifany landowner cannot build on their property due to circumstances beyond their control (such as the recent wetlands legislation), they now had an option to seek compensation. Ms. Mather asked how much of the property was usable under the current setback requirements. Mr. Davenport replied that a dwelling could not be placed on the property even if the drainfield lines were not there. As additional information, Mr. Davenport told the Board that the proposed garage did not have to meet the same setback standard; that setback would be 15 feet from the property line. Also, a healthy stand of mature trees stood along the road which would provide a natural buffer between the proposed dwelling and the orchard. Mr. Rinker told the Board that he was serving on the Board of Supervisors when the 200 -foot buffer amendment was adopted. He stated that it was created to protect the orchardists, as well as homeowners wishing to locate near working orchards. The Chairman asked for anyone in favor of the variance to come to the podium. Mr. Bill Roberts, applicant and property owner, came forward. Mr. Roberts said that he and his wife had received the property as a gift from her parents and did not realize that there was a 200 -foot setback requirement between their lot and the adjacent orchard until they had already put a down payment on the structure, and had the well and septic installed. Additionally, they had a driveway put in after consulting with VDOT. The need for a variance was established during the building permit application process. Mr. Roberts added that Mr. Solenberger, owner of the orchard, had informed him that he had no problem with their building a house at the proposed location. Chairman Larrick asked Mr. Roberts if they would be willing to maintain the trees which are currently on the property, and Mr. Roberts replied that they intended to because they had been told that one of the oldest ash trees in all of Frederick County existed there. Mr. Doug Kiracofe, contractor for the proposed dwelling and cousin of Mrs. Roberts, reiterated the statements that Mr. Roberts had given. He gave more technical information on the home itself and the time factor involved. Staff told the Board, after a question from Mr. Rinker, that this property would have been "grandfathered" if the setbacks had been on the deed when it was originally recorded; however, this was not the case. There being no one present to speak against the application, Mr. Perry moved to approve the variance request; Mr. Wells offered the second. The motion passed by majority vote with all members voting in favor of the variance with the exception of Mr. Rinker, who cast the opposing vote. Frederick Co. Board of Zoning Appeals Minutes of April 16, 2002 _ Minutes Book Page 1145 BE IT RESOLVED, THEREFORE, That Variance #06 -02 of William and Carol Roberts for a 100 -foot side yard setback variance to create a buildable lot for the construction of a single - family residence less than 200 feet from a working orchard, was approved by majority vote. Variance #08 -02 of Paul Cissel, for a 12 -foot rear yard setback variance to allow the addition of a deck. The property is located at 113 Appomattox Drive in Fredericktowne Estates and is identified with Property Identification Number 75J -8 -13 -245 in the Opequon Magisterial District. ACTION - APPROVED Mr. Davenport presented the background information on the final variance request. The applicant/property owner wants to add a deck to the existing structure; however, since two of the criteria outlined under the Code of Virginia have not been met, denial of this variance would be justified. There were several questions from the Board regarding what size deck could be built and whether it could connect to the porch from the side. Mr. Davenport informed the Board that the applicant had provide several photographs which clearly showed the wet conditions behind the home, and passed them out. Mr. Paul Cissel, the applicant and property owner, told the Board that his backyard becomes a swamp every time it rains because the runoff from the surrounding properties drains into it. He explained that he was not aware of that when he bought the property but now that this problem has come to light, he would like to make his backyard useable by adding a deck. Currently, his children cannot play outdoors due to the drainage problem unless the weather has been dry for some time. Additionally, there is no rear exit to the home. Adding a deck to the back of the house would provide a rear exit in the event of an emergency. Mr. Cissel also told the Board that he had spoken with all of his neighbors before submitting his application and that no one had any objection to his building a deck. Ms. Mather asked ifthe neighbors had decks; Mr. Cissel replied that they all had decks. Their property was situated so that they met the setbacks required. Ms. Mather asked if the builder would have added a deck on if he had so chosen; Mr. Cissel answered that if he had the money at closing, the builder would have included a deck. That's why he was so surprised when he went to apply for the building permit and was told he didn't meet the setbacks. Mr. Billy Frye, contractor for the deck project, also brought pictures of the property. He told the Board that the deck would be four feet off of the ground and would not interfere with the drainage easement, in case anyone was concerned about that possibility. There were no further questions from the Board and no one was present to speak against Mr. Cissel's request; therefore, the Chairman closed the public hearing. Frederick Co. Board of Zoning Appeals Minutes of April 16, 2002 6 Minutes Book Page 1146 DISCUSSION The Board discussed how this variance was similar to a previous request for a deck, and what options were available in this case such as changing the size or configuration. The applicant was asked if he would consider a compromise of 10 feet instead of 12 feet for the setback variance. Mr. Cissel replied that he would agree to that. Ms. Mather moved to approve the variance request as amended for a 10 -foot setback variance which was seconded by Mrs. Catlett. The vote passed by majority vote as follows: AYES Mr. Rinker; Mr. Perry; Mrs. Catlett; Ms. Mather, Chairman Larrick NAYS Mr. Malcolm and Mr. Wells BE IT RESOLVED, THEREFORE, That Variance #08 -02 of Paul Cissel, was approved as amended for a 10 -foot rear yard setback variance to allow the addition of a deck. Mr. Davenport told Mr. Cissel that he would refer the drainage problem to the Public Works Department. There being no further business at hand, the meeting adjourned at 4:45 p.m. by unanimous vote. Respectfully submitted, Frederick Co. Board of Zoning Appeals Minutes of April 16, 2002 _ Minutes Book Page 1147 Jam X L ick, Jr., Chaha rman