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BZA 08-19-03 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 V. Kent Street, Winchester, Virginia, on August 19, 2003. PRESENT James Larrick, Jr.. Chairman, Gainesboro District; Theresa Catlett, Vice Chairman, Opequon District; Thomas Malcolm, Shawnee District; Dudley Rinker, Back Creek District; Robert Perry, Stonewall District; and, Lennie Mather, Red Bud District. ABSENT: Robert W. Wells, Member -At -Large STAFF PRESENT Patrick T. Davenport, Zoning and Subdivision Administrator; Renee' Arlotta, Acting BZA Secretary CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. JULY 15, 2003 MINUTES r1 LJ On a motion by Mr. Rinker and seconded by Mr. Perry, the minutes for the July 15, 2003 meeting were approved as presented. Chairman Larrick stated that he understood that Ms. Catlett would not be attending the next regularly scheduled meeting. Ms. Catlett said that she will be out of town on September 16` Chairman Larrick stated that he will also be out of town on September 16 ". Chairman Larrick stated they should wait until the end of the meeting, in case an item is tabled, to discuss rescheduling the next Board of Zoning Appeals meeting. Chairman Larrick asked Mr. Davenport the cut -off date for next month's meeting. Mr. Davenport responded that this Friday, August 22nd, is the cut -off date, and he reiterated that there is an application. Chairman Larrick asked if the application was an appeal or a variance and Mr. Davenport replied that the application is an appeal. Chairman Larrick stated that he personally has a conflict of interest with the first matter on the agenda, and he subsequently left the room before any discussion, turning the meeting over to Teresa Catlett, Vice Chairman. r1 U Frederick Co. Board orZ „oning Appeals Minutes ofAugust R 2003 Minutes Book Page 1188 PUBLIC HEARING r Appeal Application #06 -03 of William Larry Ramey and Elizabeth Ramey to appeal a violation of the Zoning Ordinance, §165 -50, Permitted Uses in the RA (Rural Areas) Zoning District, concerning an automobile graveyard, salvage yard, and truck sale business. This property is located from 277 south on Town Run Lane approximately one mile (at end of hard surface). The subject property is identified with Property Identification Numbers 85 -A -70 and 85 -A- 137B through 137E in the Opequon Magisterial District. ACTION - APPEAL DENIED AND DECISION OF ZONING ADMINISTRATOR AFFIRMED J Mr. Davenport presented the background information, stating that the Rameys are appealing the decision of the Zoning Administrator concerning a zoning violation. In response to a complaint, Planning Department staff inspected the properties on April 4, 2003. Inspection of the sites revealed the presence of a truck sales business and an automobile graveyard. Research of the County records appeared to indicate that Mr. Ramey was cited for operating an illegal automobile graveyard in 1978 by the Planning Department. Mr. Davenport further stated that this violation was taken care of by the Frederick County Circuit Court and a letter was sent to Mr. Ramey notifying him that he was allowed to have 66 inoperable vehicles on the site, which is Parcel 70. According to Court records, no action appeared to be taken regarding the truck sales business. The Planning Department now contends that B & B Truck Sales is operating as an illegal business and Mr. Ramey's automobile graveyard exceeded the 66 vehicle limit in accordance with the letter sent in 1978. Notice of violation was sent to the Rameys on April 29, 2003, citing violations of Section 50 of the Zoning Ordinance, for uses that are not permitted in the RA Zoning District. Mr. Davenport stated it is staffs determination that the property owner was in violation of Section 50 of the Zoning Ordinance, having researched the County aerial photography dating from 1973 through 2001, as well as other County records. Mr. Davenport called the Board's attention to three displays behind them, illustrating aerial views of the properties. Mc Davenport showed that in 1970 there were no vehicles apparent, and up until 2001 there are numerous vehicles on one parcel and numerous vehicles associated with the sales business. The aerial display from 1981 shows there are some vehicles appearing, and in 1988 there are more vehicles appearing. Mr. Davenport asked the Board to examine the 1970 display, which shows there are practically no vehicles, and the 2001 display, showing there are numerous vehicles. Research of this aerial photograph shows that the Rameys did expand the automobile graveyard and also, in the Planning Department records, there was an absence of zoning approval granted for the automobile sales and salvage operations. Mr. Davenport stated that Mr. Ramey submitted evidence of Motor Vehicle Board license copies; however, what was not submitted were certificates of zoning compliance. In Mr. Davenport's conversation with Mr. Ramey at the property on May 27, 2003, Mr. Ramey stated that he was licensed to sell vehicles since 1975 and that appears to match what he submitted as part of his appeal application. However, with the first Zoning Ordinance adopted in Frederick County in 1967, the subject property was zoned A2 (Agricultural General) until it was re- classified to the current Rural Areas zoning district. Even the A2 district at that time did not allow automobile sales or automobile graveyards. Automobile sales have been restricted to the B2 zoning district as of March 1967. 'Therefore, an automobile sales business, with the starting date of 1975 in the RA or A2 district, is illegal. Staff is requesting affirmation of the Zoning Administrator's Frederick Co. Board of Zoning Appeals Minutes of August 19. 2003 2 Minutes Book Page 1189 determination that the subject property is in violation of Section 50 of the Zoning Ordinance, that an automobile sales business is not allowed on this property, and that Mr. Ramey has illegally expanded the automobile graveyard. DISCUSSION Vice Chairman Catlett asked Mr. Davenport if the matter determined by the Circuit Court in 1978 only dealt with the graveyard vehicles and not the business sales. Mr. Davenport stated that the record was, at best, not quite clear; however, there was not specific information about what it pertained to. Staff made theirjudgment on the letter that was sent from the Planning Department at that time to Mr. Ramey, indicating that a number of inoperable vehicles were permitted and he was not to exceed that, but that letter did not indicate a follow -up of an automobile sales determination. Mr. Rinker asked Mr. Davenport if Parcel 70 was the property being discussed, and if B, C, D and E were included in this property, or if they were included in Parcel 66. Mr. Davenport stated that Parcel 70 contains the automobile graveyard, it is not apparent that the sales operation is occurring on that portion; however, Parcels B. C and D contain the residence and the accessory business use for the auto sales. Mr. Rinker asked if two items were really being discussed: the graveyard and the sales on Parcels B. C, D and E, and Mr. Davenport replied yes, there are two issues. Vice Chairman Catlett asked the applicants to come forward and identify themselves. Mr. James Drown, Esquire, approached the podium, stating that he represents Mr. and Mrs. Ramey. Mr. Drown stated that in February 1963, about four years before the zoning laws came into effect. Mr. and Mrs. Ramey purchased an 18 -acre parcel, which is the subject property, At that time there were inoperable vehicles there, which was considered a junkyard. At that same time, Mr. and Mrs. Ramey did not live there, they lived on Salem Church Road, and They were operating several businesses. They had an excavating business and were involved in building homes and they also were in the business of buying and selling used vehicles. Mr. Drown further stated that when they purchased the property in 1963, in conjunction with the business they were operating, they would use the subject property to store vehicles, essentially their inventory. In 1967 and 1968, the Rameys added to the original 18 -acre parcel and now it's identified as Parcel 70, which now is about 68 acres. Over the next few years past that, they acquired some of the other properties that Mr. Davenport indicated and in 1973, they actually purchased a small tract which is nearlyadjacent to the original 18 -acre parcel where they built their home and then relocated the sales office to that new parcel. Clearly, where the sales office is, and the Rameys would certainly concede, is located on property that was acquired after the zoning was acquired. As far as the use of the sales business is concerned, the Rameys have for about 40 years used the original 18 -acre parcel as part of the place to store their inventory, where they could process the vehicles, even though the actual paperwork wouldn't be occurring on that, so that would be the response as far as the original sales is concerned. Mr. Drown stated that he believed the original notice of the alleged violation that was sent to Mr. and Mrs. Ramey indicated that they were operating an illegal unkyard and sales. Mr. Drown thinks the County is conceding through information that's been discovered since that time, that essentially, the automobile graveyard has been grandfathered in, at least up to 66 vehicles. Mr. and Mrs. Ramey would certainly concede that over the last few years, they have had more than 66 vehicles, estimating there may be 100 vehicles out there right now. The problem that Mr. Ramey is experiencing is simply that the used metal market is greatly depressed and he, frankly, just about has to give it away to get it out of there. He's been hanging on to it with the hopes that the market will improve so that he can sell it and at least come out even. Mr. Ramey does Frederick Co. Board or Zoning Appeals ., Minutes nook Page 1190 Minutes of August 19. 200" believe, however, despite the fact that he will probably lose money in doing it, that he can have the number of vehicles into compliance within about a six -month period of time. It essentially is going to require him to contact otherprocessors from outside of the area who come in and make arrangements for it that way. Mr. Ramey doesn't have the ability himself to actually crush vehicles and move them out of there. Mr. Drown stated that this is an issue, as far as this automobile graveyard, which has been re- occurring since 1992, when he first met the Rameys because they had been sent a notice of this being in violation at that time. Mr. Drown sent a letter to the County indicating that this had been resolved by Court action and nothing further was said at that time. Mr. Drown stated that Mr. Ramey gave him a letter today, dated in March of 2000, where the County acknowledged that the graveyard was essentially a grandfathered use, up to 66 vehicles. Mr. Drown does not feel that this part is an issue, j List the number of vehicles out there right now, which the Rameys believe they can get into compliance within six months. As Mr. Davenport indicated, back in 1978, there was an action against Mr. Ramey for violation of zoning laws. At that time, Mr. Ramey was found to be not guilty; the Court Order doesn't really indicate what the alleged violation was for and there is significant lack of detail on it. In reviewing some of the Judge's notes, Mr. Drown did note there was some testimony in regard to some sales occurring out in that area, so that may have been an issue that was brought up at that time. Mr. Davenport also indicated that the record of evidences submitted by the Rameys indicated that they only had a DMV license back to 1975. Mr. Ramey would certainly be able to testify and Mr. Drown would proffer that his take on that is that they have been doin at least out there, since the early sixties. When they first started buying and selling used vehicles, they weren't buying and selling very many used vehicles each year. Over the period of about 1962 or 1963 up until 1975, they gradually sold more vehicles, so they went from selling about six vehicles a year up to about 25 vehicles a year in that period of time. At that time, it was suggested to them by someone at DMV they should get a dealer license, which they did, and they have had one since then. Mr. Drown stated that they didn't just started selling in 1975, it's been an ongoing process; theyj List sold them under a dealer license at a later time rather than as individual sales. The Rameys would also certainly proffer that at least since the 1960's, they were paying something that was called a capital merchants tax. Mr. Drown understands that this was similar to our business tax license which is based upon gross receipts, but at that time it was based upon inventory. The Rameys paid that up until 1991, and at that point they obtained the business license because the County switched over to business licenses. Mr. Drown handed out to the Board a copy of the Rameys first business license dated in 1992, stating they have gotten one every year since then. Mr. Drown believes this shows compliance with all requirements to operate a business, which is for B & B Truck Sales. Mr. Davenport has indicated that they never filed a certificate of zonin compliance. The Rameys response to that is they never received a request for one nor knew that one was required. They assumed they were in compliance all these years, especially in light of the prior Court action. Mr. Drown stated that the physical location of the sales trailer is not located on property that was owned by them prior to the enactment of the zoning ordinances, but they certainly had property which they used in connection with that business back as early as 1963. Mr. Drown stated that one way to remedy that situation would be to simply move the sales trailer across the street and around the corner and place it on that original 18 -acre parcel. It would seem to Mr. Drown inconsistent as far as the County is concerned, after a Court action has been taken, that this is not an allowed use after the County is having some of their vehicles and County school buses serviced there. Mr. Drown requested that the appeal be granted in the Rameys' favor. Vice Chairman Catlett asked if they are still approximately at a sales level of about 25 vehicles a year. Mr. Drown said it is a fairly small operation, about 35 vehicles are sold. Frederick Co. Board of Zoning Appeals Minutes nook Page 1191 Minutes of AnflllSt 19.2003 4 Mr. Rinker asked if Parcel 70 was the original 18-acre tract and Mr. Drown replied yes. Mr. Rinker further questioned if the Rameys could get the inoperable vehicles down to 66 in six months or so and Mr. Drown replied yes. Mr. Rinker asked Mr. Davenport what was the description ofa vehicle in this case. Mr. Davenport responded that an "inoperable" vehicle is one that is not legal to operate on county or state roads, meaning the absence of registration or inspection sticker, including obvious signs of missing major parts such as wheels, engines orparts of the vehicle that have been removed, such as half of a vehicle or a scrap of a vehicle, would progress into the junk/debris category. Vice Chairman Catlett asked if they could legally have 66 inoperable vehicles, are they allowed to sell those inoperable vehicles under the current zoning. Mr. Davenport responded this would be an automobile graveyard, where the cars would go to rust and stay there. Vice Chairman Catlett asked if the vehicles come there, are they allowed to leave. Mr. Davenport stated that is correct, not without the proper sales or salvage license. Mr. Davenport further stated that to get into compliance, it would be allowed that the Rameys would be able to take their inventory down to 66, but the remaining 66 vehicles, to sell those or salvage parts, Mr. Ramey would need zoning approval. U] Mr. Rinker asked if that was in the grandfathered part and Mr. Davenport replied, no, it was allowable to have 66 vehicles for an automobile graveyard. Ms. Mather asked Mr. Drown, when the Rameys purchased the original 18 acres, how many abandoned vehicles were on the property. Mr. Drown replied that he did not know how many vehicles were there; Mr. Ramey had indicated to him that for many years prior to Mr. Ramey's ownership, the property had been used as ajunkyard and storage place for old, unwanted vehicles. Mr. Drown stated that one of his concerns with the County's position is that they are only focusing on or recognizing one aspect of the use of the property that's been going on probably in excess of 40 years. The fact is there have been vehicles and it has been used as a junkyard, as a salvage area. for well before the zoning laws went into effect. Mr. Drown thinks the County is only recognizing that there is a junkyard with an allowed number of vehicles up to 66, but that begs the question as to whether or not there are other allowed uses or other non - conforming uses that have also been grandfathered in. Vice Chairman Catlett asked if any building permits had been required for either the junkyard or the auto sales; did they build any kind of storage shed or garage where they would have to get building permits. Mr. Drown replied that he could not answer that, he is not aware of any structures actually put on the 18 -acre parcel. Vice Chairman Catlett asked the same question of Mr. Davenport, and he replied that building permits would be required for any structure over 150 square feet that is not an agricultural -type structure. Vice Chairman Catlett asked if any permits were issued and Mr. Davenport responded the County records only go back a few years, so there were none issued on site. Mr. Drown said that prior to the meeting today, there were two favorable statements for Mr. Ramey faxed in from interested neighbors to the Board members. Mr. Drown asked that they be made part of the record by reading into the record. Vice Chairman Catlett asked for guidance on this and Mr. Davenport responded that it has been the policy of the B%A not to read statements into the record, but they would be attached and made a part of the record. Frederick Co. Board of Zoning, Appeals Minutes of August 19. 2003 J Minutes Book Page 1192 Vice Chairman Catlett asked ifthere was anyone else in favor of the appeal who would like to speak. There was no response. Vice Chairman Catlett asked if there was anyone opposed to the appeal who would like to speak. There was no response and the public hearing portion was closed. Mr. Rinker stated that he knows Mr. Ramey certainly does a goodjob with what he's doing, getting trucks back out at a reasonable rate, and he does a service to that community. Mr. Rinker asked i f the Board wanted to take this in two parts: the junkyard and the auto sales as a second part. Vice Chairman Catlett asked Mr. Davenport if they are included as one request, can they be reviewed separately. Mr. Davenport stated that would depend on the motion and it could be made a multiple -part motion if desired. Mr. Rinker said they stated they could get the vehicles down to 66 in six months and he would like to grant them six months, at least, to come into compliance. Vice Chairman Catlett asked Mr. Rinker is that is a motion and he responded, yes, it is a motion. Vice Chairman Catlett asked for a second. Mr. Malcolm wanted to know if that was an appropriate motion. It is his understanding that the Board is solely about either approving or disapproving issues before it and not making motions to grant conditions. Vice Chainnan Catlett responded she believed the Board had included conditions previously in order to give someone what they feel is a reasonable time to comply. Mr. Davenport told Mr. Malcolm that he would be making a determination on whether the Zoning Administrator made a correct decision and if part of the decision was correct and part not correct. that could be reflected in the votes. Mr. Malcolm asked what is Mr. Rinker's intent in the motion. Is he acknowledging that the Zoning Administrator has made the right decision and simply asking for six months for the issue to be cleared up. Mr. Rinker replied, yes, they have the right for the 66 vehicles by Court action. Mr. Malcolm asked Mr. Rinker if he is affirming that the Zoning Administrator's decision was right. Mr. Rinker stated, yes, giving them six months to bring the violation into compliance. Mr. Perry asked Mr. Davenport if six months was a reasonable amount oftime and Mr. Davenport agreed with that. It is his opinion that is reasonable. Mr. Malcolm seconded the motion, with that understanding. Mr. Perry clarified that the motion is affirming that they are in violation of the 66 rule and the Board is granting them six months to comply. Mr. Rinker stated that he is looking at that being Parcel 70, because that is where the inoperable vehicles are, and the other part is really B, C, D and E. Frederick Co. Buard of Zoning Appeals Minutes Book Page. 1 193 Minutes of Augast 19. 2003 6 Vice Chairman Catlett called for the vote on that portion of the motion, which passed by unanimous vote. Chairman Larrick abstained and Mr. Wells was absent. Vice Chairman Catlett asked if there was further discussion on the sale of the vehicles issue. Ms. Mather asked Mr. Davenport what would bring the Rameys into compliance. Mr. Davenport stated there are just a few choices. One is to rezone the property to the appropriate zoning district, which would be B2 (Business General), the second is to relocate the business to an appropriately zoned property, and the third option is to not have the business. Vice Chairman Catlett asked if a conditional use permit would apply and Mr. Davenport answered no, not in this case, for that zoning district. Mr. Rinker asked if it would be reasonable to extend the B2 down to the Rameys from the Holiday Express and Comfort Inn, which are zoned 132, and Mr. Davenport responded that is a Comprehensive Policy Plan question and quite a few significant details would have to be worked out before a potential rezoning would come in. Vice Chairman Catlett asked if their option would be to apply to the Board of Supervisors for a change of zoning and Mr. Davenport responded, yes. Further, the Department's position is that would solve the auto sales issue or to relocate the business to an appropriately zoned district. Mr. Malcolm and then Vice Chairman Catlett asked if the Rameys owned any B2 zoned property and Mr. Ramey responded, no. Vice Chairman Catlett asked if someone was prepared to make a motion. Mr.Malcolm responded that he had not heard any argument that convinces him that the Zoning Administrator's decision was inappropriate. The issue is, is it zoned properly or not, and is it in compliance or is it not incompliance. Mr. Mal colm made a in otion that the dec i si oil of the Zon in, Administrator be affirmed on the expansion of the auto sales business, Ms. Mather seconded the motion, which passed by unanimous vote. Chairman Larrick abstained and Mr. Wells was absent. BE IT RESOLVED, THEREFORE, That Appeal Application #06 -03 of William Larry Rainey and Elizabeth Ramey was unanimously overruled and the decision of the Zoning Administrator affirmed. Chairman Larrick returned to the Board Room and resumed chairing the meeting. Appeal Application #07 -03, submitted by Ron Cline and Beverly Clem to appeal a violation of the Zoning Ordinance, §165 -50, Permitted Uses in the RA (Rural Areas) Zoning District, concerning a junkyard, salvage yard, and car repair /sales business. This property is located on Route 817, and is identified with Property Identification Number 40 -A -135 in the Back Creek Magisterial District. ACTION - SECTION 165 -50 OF THE ZONING ORDINANCE APPEAL CONFIRMED, AND SECTION 165 -47 OF THE ZONING ORDINANCE APPEAL DENIED AND DECISION OF ZONING ADMINISTRATOR AFFIRMED Mr. Davenport presented the background information In response to a complaint, Frederick Co. Board of Zoning Appeals Minutes of August 19. 200- `Minutes Book Page 1194 y Planning Staff inspected the subject property at 341 Magic Mountain Road on April 25, 2003. An inspection of that site revealed the presence of an automobile graveyard, and the presence of other junk and debris. Research of County records in the form of certificates of zoning compliance and business licenses approved by County staff did not reveal that this property was approved to operate a junkyard, a salvage yard or automobile sales business. Subsequently, a notice of violation was sent to the property owners on April 28` citing violations of Sections 165 -50 and 165 -47. Automobile sales, automobile graveyards and salvage/ rebuild businesses are not listed as permitted uses. Section 165 -47 states that landfills, junkyards, automobile graveyards, dumping and trash heaps are only permitted where specifically allowed in the zoning ordinance. In determining that the applicant was in violation of Section 165 -50, staff researched County aerial photography dating from 1969 through 2001 and also other County records. Research of those photographs indicated that there did not appear to be an automobile graveyard located on that property. Mr. Davenport directed the Board's attention to the three aerial photographs provided by staff. The most recent photograph was taken in March 2001, where numerous vehicles can be seen. In the photograph taken in October 1969, there appears to be none or just a very few vehicles, and it appears to be similar in the 1970 photograph. Staff has also provided aerial photographs taken in 1981 and 1988. The research of those photographs was part of staff's determination that the uses would not be grandfathered. The first zoning ordinance was adopted in Frederick County in March 1967. The subject property was zoned A1, which was Agriculture Limited, until the re- classification of Al into the Rural Area Zoning District. The Al District never allowed auto sales, automobile graveyards or salvage businesses. Mr. Cline did submit some material to staff in an attempt to prove that the uses on this property are legally non - conforming, what some call grandfathered; however, staff contends that this evidence does not prove that the automobile graveyard and salvage yard existed continuously since the date of the first zoning ordinance establishment. The applicant also did not present evidence from the Department of Motor Vehicles for salvage operations or from the Motor Vehicle Dealer Board for automobile sales. Section 149 ofthe zoning ordinance pertains to the discontinuance of legally non- conforming uses and it states that if any legally non- forming use is discontinued for a period exceeding one year, it shall be deemed abandoned and, therefore, must comply with zoning ordinance requirements. Staff contends that this automobile graveyard or salvage yard was not established with proper zoning approval and there is insufficient evidence to prove that the property has been in continual use as a junkyard, salvage yard or automobile sales operation since March 1967, and, therefore, should not be allowed. Staff is requesting affirmation of the Zoning Administrator's determination that the subject property is in violation of Section 165 -50 and Section 165 -47 of the Frederick County Zoning Ordinance. DISCUSSION Chairman Larrick asked if the Board had any questions of Mr. Davenport at this time, and there was no response. Chairman Larrick asked if there was anyone present to speak in favor of the application, please come forward and identify themselves. Mr. Ron Cline came to the podium and identified himself. He also introduced Gene Mahew, who purchased the property in 1987. Mr. Mahew is familiar with Carl Miller, who is the original owner of the property and who subdivided the property and sold part of it to Mr. Mahew and to Mr. Rhinehart. Mr. Cline stated when he purchased the property, the real estate agent said it was zoned M2 and she gave him a copy of the Metropolitan Regional Information Systems that shows this Frederick Co. Board ol'Zoning Appeals , Minutes of August 19. 2003 8 Minutes Book Page 1195 Mr. Cline talked with Mr. Davenport about this and Mr. Davenport stated that the property that Mr. Rhinehart owned is still zoned M2. Mr. Cline stated that his is zoned M2 also. He doesn't know how you can subdivide one piece of property and one is rural and one is M2. Mr. Cline submitted a sheet to the Board. Chairman Larrick stated that the Board already had a copy of this in their packet of information. Mr. Cline stated that he wrote a letter to the Zoning Administrator before buying the property to ask if everything was okay on this, and according to records submitted, Mr. Miller had operated since the 1950's on the property. Chairman Larrick asked Mr. Davenport if there was any indication the property was M2 in 2001. Mr. Davenport responded, no, the Rhinehart property was rezoned in the early 1970's to M2; however, it was drawn incorrectly on the tax maps which may have led to the real estate agent's confusion about this subject property being zoned M2. Chairman Larrick asked how that would get into the Metropolitan Regional Information and Mr. Davenport responded that the real estate agent, in doing research, would look at the County records and what may be shown on the tax maps for zoning, if the zoning was drawn. Mr. Davenport further stated that what happens is, there is a specific acreage drawn in for a rezoning and if it doesn't match the tax parcel lines, it's still drawn in anyway. The tax parcel lines are almost never exactly correct. Sometimes there are chances that people may mistakenly have different zoned property which is not the case. Chairman Larrick asked what could they have done when they bought this property that would have alleviated this potential problem, and secondly, does the County participate in sharing information it gets into this system. Mr. Davenport responded that he believes real estate agents interested in purchasing or managing a listing would probably most likely work with the Real Estate Assessors, and in his experience with the County, occasionally some agents would come and ask for the specific zoning. y Mr. Perry questioned if there is anything that says these three documents have legal, binding information contained and Mr. Davenport responded that as far as he knows, real estate listings would not be legal documents as far as determining zoning. Chairman Larrick asked if the County participates in creating this listing. Mr. Perry stated they probably sell the listing to this company that redistributes it. Vice Chairman Catlett stated that the public record is downloaded from the County, this portion of the public record is downloaded from what the County provides, which is why they are not always correct. Mr. Davenport stated that on many occasions. properties have been assessed incorrectly for years as far as zoning is concerned. Chairman Larrick went back to his original question: what should they have done to make sure they knew exactly what the zoning was. Mr. Davenport stated they could come in and looked at the tax maps and we would research that rezoning of the Rhinehart property. Through this violation, staff did research that rezoning and found out that the tax maps and the way the M2 zoning on the Rhinehart parcel are, was not drawn correctly. Also, the tax maps are still not drawn correctly as far as parcel lines are concerned. Mr. Cline stated as far as they are concerned, they think they did everything they were supposed to do to verify that this was used as a junkyard the whole time. Mr. Cline's position is, if Frederick Co, Board of Zoning Appeals 1196 Minutes of An_nst 19. 2003 9 Minutes Book Page it has been there that long and was zoned M2 at one time, and the other land such as the Rhinehart property came off that property that Mr. Mahew bought, why wouldn't it be M2 now? How would you even know, if it wasn't? Chairman Larrick asked Ms. Clem if she had anything to add. Ms. Clem stated that to their knowledge this has always been a junkyard and that is one of the reasons they bought it, thinking that it would be fine to store their own vehicles. The cars that are there are vehicles that they own and they needed a place to put them. Chairman Larrick asked if they sold salvage parts and Mr. Clem responded they did a little bit, but they're not really operating like that yet because they're in limbo. Mr. Rinker asked how many vehicles were stored on the property and Mr. Clem stated about 20. Vice Chairman Catlett stated in the Board's information package, there is a copy of a letter dated May 18, 2001, in which Mr. Cline wrote to Jeremy Camp, who is with the Frederick County Planning Department. In that letter, Mr. Cline states that lie is about to go to closing on purchasing the property and that he is under the impression that it is zoned M2. Vice Chairman Catlett asked if there was a response from the County confirming that it was M2. Mr. Cline stated that Mr. Camp wrote a letter back saying that he had seen the record and there was no business license or anything like that in the past. Mr. Cline had Mr. Camp's letter in his possession and he circulated it to the Board members. Chairman Larrick stated that Mr. Camp's letter to Mr. Cline, dated May of 2001, clearly says at that time ... "you are advised it is in an RA zoning district ". Chairman Larrick asked Mr. Cline when he went to closing in June of2001, if he knew it was not in M2. Mr. Cline stated that they were in discussions about whether it was or wasn't. The County did not have any records and the property had established the grandfather part. Mr. Cline talked to the neighbors and store owners, asking them how long the business had been on that property. Mr. Cline stated that he talked to Mr. Camp after receiving Mr. Camp's letter and told him there was still discussion whether the land was grandfathered. Mr. Perry stated that the letter clearly states according to the office zoning map of Frederick County that the subject property is located in an RA zoning district. Chairman Larrick stated that maybe the Board was misunderstanding because he, Chairman Larrick, thought part of what Mr. Cline was trying to say is that Mr. Cline and Ms. Clem were misled when they went to closing, thinking it was zoned M2. Mr. Cline responded that the property they purchased came from property zoned M2. Chairman Larrick said that the land they were buying and asked the Planning Department to give them a determination on, staff very clearly gave you a determination on it. Mr. Cline said they had proof that it was there and had been there and it had been used as a junkyard and this property had been zoned M2. Chairman Larrick asked Mr. Davenport if a car is in a yard for years and years, does that make that yard an automobile graveyard. Mr. Davenport responded in the RA zoning district, Frederick Co. Board of Zoning Appeals Minutes of A ueust 19.2003 10 Minutes Book Page 1197 you are allowed to have up to five inoperable vehicles and those five inoperable vehicles must be screened from adjoining properties or the roadways. Chairman Larrick asked when would the use of an automobile graveyard or salvage yard be discontinued. Mr. Davenport said they have the aerial photographs showing a succession. Chairman Larrick said they just have to have the cars there, they don't have to have a business or sell part of a car. Mr. Davenport stated that for an automobile graveyard, as shown by the aerial photographs, there were more than five vehicles on the property. The 1969 aerial photograph shows practically no vehicles on the site. Mr. Malcolm asked if it was more than five and Mr. Davenport responded there appeared to be none on the site on the 1969 photograph. Chairman Larrick staled that if they went a year without more than five cars, then it was a discontinuation of a non - conforming use. Chairman Larrick asked if anyone else wanted to speak on behalf of the application. Mr. Gene Mahew stated that he was born there and lived there for fifty -some years and Carl Miller always had thatjunkyard as far as he knew. When lie bought it, lie didn't run it but a man staying there ran it as ajunkyard. Chairman Larrick asked Mr. Mahew where he lived in 1981 Mr. Mahew responded he lived in Siler. Chairman Larrick said that during that period, if a photo shows no cars during that time, Mr. Mahew wouldn't know it that was true or not. Mr. Mahew responded not really, but he did travel the road every day. Chairman Larrick asked Mr. Mahew if he operated it as an automobile graveyard when he owned it. Mr. Mahew stated that Eddie Harvey lived there and he did. Chairman Larrick asked if Mr. Harvey always had six vehicles there. Mr. Mahew said Mr. Harvey probably did, he didn't pay much attention to it. Mr. Sylvester Spielman came forward to speak against the application. He owns the land across the road. Mr. Spielman stated that since Mr. Cline and Ms. Clem have moved there, they have decided to park cars on his land. Mr. Spielman asked Mr. Cline about a year ago if he would move them and they have not done anything as far as moving the cars. Mr. Spielman further stated that Mr. Cline says he owns the land and Mr. Spielman has the deed that says he owns it. Mr. Spielman said that the photos are showing the cars across the road that actually are on his land. Chairman Larrick closed the public portion ofthe meeting and asked for discussion or comments from the Board members. Mr. Malcolm asked if he was correct in assuming that this enterprise functioned continuously since the 1960's as ajunkyard and operating continuously can be defined as a very passive operation containing six vehicles at any one given time staying on that property; it has continued as ajunkyard continuously for a long period of time. Mr. Davenport responded that the second part of staff s determination was the two photographs, one in 1969 and one in 1970, which would not have substantiated the automobile graveyard. 0 Mr. Rinker stated, if the Board would rule against staff and say it was a qualified Frederick Co. Board of Zoning Appeals Minutes of August 19. 2003 11 Minutes Book Page 119E junkyard for all those years, how does the Board put a determination on the number of vehicles allowed since 1967. Chairman Larrick responded he was not sure the Board had to, but they could. Mr. Malcolm stated that there was a bus stop out there when it was called Miller's Junkyard. Mr. Malcolm further stated that he did not believe there was conclusive proof that it has notbeen in operation, and thatthis location hasfunctioned as ajunkyard since sometime inthe 1960's. Mr. Malcolm asked Mr. Davenport if the Board could unequivocally say that it has not operated as a junkyard. Mr. Davenport responded that staff is not trying to deny the fact of Carl Miller's operation; however, it is staff's determination that it has not operated continuously, through staff s research, there have been no certificates of any kind of zoning compliance or anything issued from the Motor Vehicles Dealer Board or DMV. There is also a determination that they are in violation of Section 165 -47 of the junk and debris section. Vice Chairman Catlett agreed with Mr. Malcolms' comments that she is not convinced that it has not been operating continuously, and based on that perception, Vice Chairman Catlett made a motion to approve the appeal. Mr. Rinker seconded the motion and the motion passed unanimously. Mr. Davenport asked for a clarification on the two sections of the zoning ordinance, Section 165 -50 and 165 -47. Chairman Larrick clarified that Section 165-50 deals with the junkyard. Vice Chairman Catlett stated that her motion pertains to Section 165 -50, based on the discussion of the automobile graveyard. Mr. Rinker stated that was what his second to the motion was based on. Chairman Larrick said the Board is in agreement that is what was voted on. Chairman Larrick said the Board now needs to address Section 165 -47 dealing with rubbish and debris. Mr. Malcolm made a motion to confirm the decision of the Zoning Administrator on that issue. Mr. Perry seconded the motion and it passed unanimously. Mr. Wells was absent. Chairman Larrick stated that in essence, Mr. Cline can keep the graveyard but must get rid of the debris. BE IT RESOLVED, THEREFORE, That Appeal Application #07 -03 of Ron Cline and Beverly Clem, concerning Section 165 -50 of the Zoning Ordinance, was unanimously sustained, and Section 165 -47 of the Zoning Ordinance was unanimously overruled and the decision of the Zoning Administrator affirmed. Appeal Application #09 -03 of Sovereign Homes, submitted by Bowman Consulting Group, Ltd., to appeal the decision of the Zoning Administrator concerning a land use determination regarding residential separation buffers. This property is located on North Frederick Pike (Route 522), southbound land, approximately 450 feet south of Oakside Lane, and is identified with Property Identification Number 53 -A -53 in the Stonewall Magisterial District. ACTION - APPEAL OVERRULED AND DECISION OF ZONING ADMINISTRATOR Frederick Co. Board of Zoning Appeals Minutes of August 19. 2003 12 Minutes Book Page 1199 r AFFIRMED Mr. Davenport presented the background information. In a letter dated June 27, 2003, staff received a request for a zoning determination from Bowman Consulting, which sought a zoning determination regarding residential separation buffer requirements for a residential development. This request sought a determination of what, if any, residential separation buffers would be required on the subject property situated between it and the property located to the west. The subject project is known as Regents Crescent, for which a master development plan was originally submitted to the Planning Department on January 13, 2003. Currently, the proposed development is to contain approximately 70 townhouse units. Mr. Davenport further stated that the project is located on the east side of Westminster Canterbury, which is a development containing a variety of housing types such as duplexes and single - family detached dwellings, which are occupied by mostly retirement -aged people. Westminster Canterbury is situated on a single - parent parcel and no individual lots exist. In a letter dated July 17, 2003, staff furnished the requested zoning determination to Bowman Consulting. Section 37C -1 -A of the Zoning Ordinance provides the requirements for residential separation buffers when housing types such as townhouses or apartments are developed adjacent to existing single- family detached traditional urban cluster or single- family zero lot lines and single - family small lot housing types. There are three screening options available and those options are illustrated in the Board's Agenda. The decision regarding the necessity of these buffering requirements was determined on the basis that since the adjoining property, which is Westminster Canterbury, contains amix ofhousingtypes which includes single - family detached dwellings, the development of the subject property, which is the townhouse project, would have to establish the required buffers in accordance with37C -1 -A. Staff is requesting affirmation that the decision regarding these buffering requirements as specified in 37C -I -A are required to enable the development of the townhouse units as illustrated on the subject property. DISCUSSION Chairman Larrick asked if anyone was present to speak in favor of the application. Mr. Ty Lawson, Esquire, introduced himself on behalf of Sovereign Homes. Mr. Lawson stated they are appealing Mr. Davenport's letter determination. From the perspective of Sovereign Homes, it is an appeal of a decision requiring a 100 -foot setback only in a portion of the property and it's being imposed, not because of what's there, but what could be there. It is Mr. Lawson's understanding that the note that was handed out to the Board states that Westminster Canterbury contains a mix of housing types which include single - family detached dwellings. It helps to match up the lay -out that is in the Board's packet with their proposed development in the bottom right. Mr. Lawson stated that staff is correct, it shows a mix of housing types on the Westminster Canterbury site. There is the apartment -style living, a hospital wing, an assisted living wing, and quite a few duplexes. There are three single- family detached, but none of them are in any proximity to their proposed development. Westminster Canterbury is made up of multitude of housin types and some of those could be single - family detached, therefore, they're going to impose the section which says separation buffers shall be established to adequately buffer single- family detached traditional and cluster dwellings from other housing types. The function of the perimeters separation buffer shall be to adequately separate different housing types within adjoining developments. Mr. Lawson stated that the problem they have is with what is there. What is there are duplexes and what they are proposing to put in adjacent to them are townhouses. They are not single- family detached traditional or cluster dwellings. Mr. Frederick Co. Board of Zoning Appeals Minutes of August 19.2003 13 Minutes Book Pa €e 1200 Lawson read the Frederick County ordinances describing a duplex and a townhouse. Mr. Lawson stated that they do have 100 -foot setbacks where they are adjacent to single- family detached homes, this is not at issue. What is at issue is what should the proper setback be from the duplexes that are in Westminster Canterbury. Mr. Lawson made a reference to a letter faxed today from Greenway Engineering, which had not been sent to them, purportedly written by an engineer who is here on behalf of his client, the Executive Committee of Westminster Canterbury, and in that letter it says the y reduction in buffer is not acceptable due to the use of residential units on the Westminster Canterbury property adjacent to the proposed town homes. Again, Mr. Lawson stated it is duplexes next to townhouses and this is not what's addressed in the section that is trying to be imposed. The letter also says addresses the topographic elevation difference between Westminster Canterbury and the proposed Sovereign Homes. Mr. Lawson stated they are somewhat taken aback by this letter because in a meeting on August 6 ", the Westminster Canterbury development committee expressed a great deal of satisfaction with what they showed them. They actually asked them to prepare a profile so they could get an idea of what the rooftops would look like. They also expressed an interest in being able to tie their sewer into their property because they apparently have 11 pump stations on their property which is not desirable for them. The view shed shows the 100 -foot setback that currently exists on the Westminster side of the line and a 30 -foot setback which Sovereign Homes submits is the proper setback for this project. It also shows the comparisons in the elevation and it shows how much lower they are in comparison to the duplexes that are on property. They are very surprised by the Greenway letter. When they met with the development committee, they expressed support and also said they wanted to work with them to tie in sewer. The property committee of Westminster Canterbury has taken no action against this project. Mr. Lawson stated they understand the ordinance, but they think it is misplaced because what is to be separated and what is to buffered are single - family homes and they don't exist. Mr. Lawson asked the Board to grant their appeal. Mr. Perry asked Mr. Lawson where on the Westminster Canterbury site are the three single- family residences. Mr. Lawson showed the members. Mr. Perry stated that in Mr. Lawson's explanation of the ordinance, he did not hear any reference as to where on the said property those residences had to be to be adjacent, it simply says on the property and that's what those three are - on the property. Mr. Lawson responded by stating the ordinance says separation buffers shall be established to adequately buffer single- family detached traditional and cluster dwellings from other housing types. Further, the function of the perimeter separation buffer shall be to adequately separate different housing types within adjoining developments. Mr. Lawson thinks adjoining is a term that is defined, but something that is adjoining is something that is right next to it. Mr. Perry stated the ordinance states adjoining developments, and that is what Sovereign Homes has - an adjoining development. Mr. Perry further stated that he cannot see anything that tells him anything different other than the fact that, on Westminster property, there are single- family residences and the ordinance as written says you have to have 100 feet. It doesn't say where those single - family residences have to be to measure the 100 feet from, it just says on that property. Mr. Lawson responded C-1 -A is the one that is being referenced and the words that are used about applying these buffers are, "...that they shall not be placed adjacent to other residential Frederick Co. Board of %onino Appeals Minutes ofFlugus'1 19.2003 ` 14 J linutes Book Page 1201 lots or structures ", and adjacent is right next door, or in this case, right across the line. It doesn't mean down the way and over off on the left several hundred feet. Mr. Lawson suggests that is the only interpretation that makes any sense, because you're talking about 100 feet. It would be a strange interpretation, in Mr. Lawson' s opinion, to say that adjacent means something that's five or six hundred feet away as the crow flies, and in order to get to that first one, you've got to go through a couple of duplexes and down the street. Mr. Davenport stated that we do have a definition of adjacent in our zoning ordinance, which he read. Adjacent or adjoining lot or land: "A lot or parcel of land which shares all or part of a common lot line with another lot or parcel of land which is immediately across a street or road from said parcel or lot." Mr. Davenport stated that part of staff s determination was this is not subdivided property, it actually is one entire piece of property. Mr. Lawson suggested there is a purpose behind the ordinance other than to contort it and to create artificial strips of ground. The intent is to provide separations where you've got single family that is immediately across from other inconsistent uses. Chairman Larrick stated that Sovereign Homes should be asking for avariance instead of an appeal. Vice Chairman Catlett asked Mr. Davenport if there is a definition that includes a duplex, is that included within single- family detached. Mr. Davenport responded no. Chairman Larrick asked if there was anyone present to speak against the application. Mr. Jeff Whetzell approached the podium. He is one of the single- family property owners. They own the property that is right up against Rt. 522 and there is a lot behind their home that they own also. These two parcels of land border on the front part, the B2 part. Mr. Whetzell stated that originally there was to be 20 single - family dwellings on this piece of property. The way that things have occurred, the single- family property owners have been left in the dark. At one point, they found that they, Sovereign Homes, were trying to take the property owners' easement. The property owners were able to produce a signed deed of their easement that showed that the property owners had right to the easement. Mr. Whetzell stated they were concerned about the easement as far as their single - family dwellings. Chairman Larrick reminded Mr. Whetzell that today they were talking about property in the back, away from the property owners. Mr. Whetzell stated that Mr. Prank, of Bowman Consulting, stated everything was going to be done right, and everything the property owners have seen has not been done right and they are frustrated. Mr. Whetzell hopes the Board stands by the determination of the Zoning Administrator and makes them abide by the proper buffers. j. Ms. Ann Hiatt approached the podium. She stated that they own land on the back side, alongside where they want the buffer. Ms. Hiatt thinks the buffer at the back is not going to hurt if it's just 30 feet. She does not see anything wrong with it. Mr. Mark Smith of Greenway Engineering approached the podium as a representative of Westminster Canterbury. Mr. Goff, President of Westminister Canterbury, explained to him that there was a meeting with the property committee and the Sovereign Home applicants, and there was no decision or direction given by the property committee. They went forward and met with their Frederick Co. Board of Zoning Appeals Minutes of August 19. 2003 15 Minutes Book Page 1202 finance committee. The finance committee did make an action. They basically want the 100 foot separation buffer and were not in favor of a reduced buffer. From the finance committee, they took it to the executive committee and they also made the same action that they would prefer the 100 -foot buffer instead of a reduced buffer. Westminster Canterbury residents, which live there full time, would be looking down onto the buildings more so than looking into the buildings because there is a 30 -40 foot elevation difference in that particular area. Ms. Mather stated that her concern is that this was rezoned and originally single- family homes were proposed, and that seems to be happening a lot. Mr. Davenport replied that the property was already appropriately zoned. The first visit before the Planning Commission and Board of Supervisors was for a reduction of the cul -de -sac length. Ms. Mather made a motion to affirm the Zoning Administrator's determination, seconded by Mr. Perry and the motion passed, with Mr. Malcolm voting no. Mr. Wells was absent. BE IT RESOLVED, THEREFORE, That Appeal Application 409 -03 of Sovereign Homes was overruled and the decision of the Zoning Administrator affirmed. OTHER BUSINESS Chairman Larrick stated that according to his Agenda, that is all the matters they have today; however, the date for the September meeting still has to be determined. Mr. Davenport suggested that the meeting be set later into September. Mr. Davenport replied that there was only one application and it isn't a very complicated issue, but it is an appeal of a zoning violation and there is a time limit. The Board members discussed their schedules and it was decided that Tuesday, September 30, 2003, will be set as the next Board of Zoning Appeals meeting. There was no other new business; therefore, the meeting adjourned at 5:45 p.m. by unanimous consent. Respectfully submitted, A n n 1A- James Larnck. Jr., Chairman Bev Dellinger, Secretary Frederick Co. Board ol'Zoning Appeals Minutes of 16 Minutc Book Page 1203