BZA 07-16-02 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 July 16, 2002.
PRESENT James Larrick, Jr., Chairman, Gainesboro District; Thomas Malcolm, (representing
Shawnee District); Robert Perry, Stonewall District; Theresa Catlett, Opequon District
and Robert W. Wells, Member -At -Large
ABSENT Dudley Rinker, Back Creek District; Lennie Mather, Red Bud District
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.
June 18, 2002 MINUTES
The minutes for the June 18, 2002 meeting were approved by unanimous vote after a
motion by Mr. Perry and a second by Mr. Wells.
PUBLIC HEARING
Variance #13 -02 of Manning & Ross Builders, Inc. for a one -foot front yard setback variance
for a single - family dwelling. The property is located in Sovereign Village, Lot 74, on Wayfaring
Drive and is identified with Property Identification Number 65H- 1 -1 -74 in the Red Bud
Magisterial District.
ACTION - APPROVED
Mr. Davenport presented the background information and explained that when the
building permit was obtained, a setback survey was not required based on the layout the builder
presented. The single family dwelling that is the subject of the application was constructed in a
location that would have required a setback survey if the initial layout had shown that. Since the
applicant constructed the dwelling in a manner that was not consistent with the layout presented on
the building permit, denial of this variance would be justified.
Mr. Wells asked what constitutes a hardship in this case, and what would the
Frederick Co. Board of Zoning Appeals
Minutes of July 16, 2002 Minutes Book Page 1154
consequence be if the application was denied.
Mr. Davenport replied that "making a mistake" does not constitute a hardship and that
if the variance was denied, the house would have to be modified to meet the setbacks.
Board members discussed the scenario that some of these types of situations may be
done with idea that once the house is completed, surely the BZA would not require them to destroy
it.
Chairman Larrick recommended that they continue by opening the public portion of
the hearing
Mr. Darren Foltz, of Greenway Engineering, was present to represent Manning & Ross
Builders, Inc. Mr. Greg Bancroft, Vice President of Manning & Ross Builders, Inc. was also present
to answer any questions.
Mr. Foltz told the Board that Greenway Engineering had done all of the survey work
for Manning & Ross Builders in the Sovereign Village Subdivision, and they had not had problems
until now. He said they believe that a subcontractor may have "adjusted a few things on the lot" and
that's how the mistake was made. When asked to clarify that statement, Mr. Foltz said that they think
a subcontractor disregarded the stakes that were in the field.
Board members asked how an eight -foot mistake could have been made, and at what
point the building permit was obtained. Mr. Foltz stated that the house plan was "flipped" which
resulted in reverse setbacks.
Further discussion ensued regarding who was responsible for changing the original
layout of the house, why had no one taken responsibility to make sure the house was placed the way
it was supposed to be, and whether this really was a mistake or was perhaps done intentionally to
increase the profit margin. Questions were presented regarding the `envelope' of the house and why
flipping the design would create a change in the envelope.
Mr. Bancroft came to the podium and told the Board that he thought what happened
in this case was that someone may have run over the stake. He stated that he has built several hundred
homes in this area and this was the first time he had ever been in front of the Board of Zoning Appeals.
Mr. Bancroft acknowledged Mr. Wells' earlier comment on contractors disregarding setbacks on
purpose but assured the Board that this was not the case. He admitted that an error had been made.
He stated that in the future, if they do both the building restriction lines and have the automatic
setback report, that will help when they pour the footers or build the wall. Mr. Bancroft said that he
has seen builders purposely disregard setbacks but reiterated that they had not done that.
Questions were raised as to how long Mr. Bancroft had been building houses in this
area, who obtained the building permit, when was it discovered that a mistake had been made, and
how many houses in the subdivision were set up so as to require a setback survey. Several Board
members expressed their displeasure at the Board's being put in the position of being "the heavy" and
needing to approve or disapprove something that was clearly someone else's mistake.
Several more questions were posed as to why the plans were changed [flipped] after
the building permit had been obtained and whether anything could be done to prevent this from
happening in the future.
rick Co. Board of Zoning Appeals
tes of July 16, 2002 Minutes Book Page 1 155
There was no one present to speak against the variance request.
DISCUSSION
Chairman Larrick told the Board that he was impressed with the fact that Mr.
Bancroft's company had built hundreds of houses and this was the first time they had been before the
Board of Zoning Appeals.
Mr. Davenport said that anyone, whether they be from the public or a building firm,
etc. could submit a letter to the Planning Department or Development Review and Regulations
Subcommittee requesting stricter setback survey requirements.
There was some further concern regarding possible legal ramifications that could occur
if the Board reaches the point of "enough is enough" and actually denies one of these requests. The
concern was that they will have to hear about all of the other ones that were previously approved.
Chairman Larrick pointed out that the Virginia Supreme Court is very clear on this
point and has ruled that each case is handled on a case -by -case basis and a decision on one case does
not set a precedent for future cases.
The Board's consensus on this application was that it did not appear to be intentional
malfeasance; however, a very stern warning was issued to Mr. Bancroft to not appear before the Board
again with a request like this.
On a motion made by Mr. Malcolm and seconded by Mr. Wells, Variance # 13 -02 was
approved. The vote was unanimous; however, it is noted for the record that the decision was arrived
at with `great prejudice.'
There being no further business at hand, the meeting adjourned at 4:25 p.m. by
unanimous vote.
Respectfully submitted,
Frederick Co. Board of Zoning Appeals
Minutes of July 16, 2002 Minutes Book Page 1156
a ( I/
James La Ick, Jr., Chairman