BZA 07-15-03 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 15, 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.
ABSENT: Lennie Mather, Red Bud District; Robert W. Wells, Member -At -Large
STAFF
PRESENT Patrick T. Davenport, Zoning and Subdivision Administrator; Bev Dellinger, BZA
Secretary.
CALL TO ORDER
The meeting was called to order by Chairman Larrick at 3:25 p.m. Chairman Larrick
determined that there was a quorum for the meeting to proceed.
JUNE 17. 2003 MINUTES
On a motion by Mr. Perry and seconded by Mr. Malcolm, the minutes for the June 17,
2003 meeting were approved as presented.
Chairman Larrick asked Mr. Davenport the cut -off date for next month's meeting. Mr.
Davenport responded that this Friday, July 18Th, is the cut -off date, and further, that the meeting date
is August 19, 2003. Chairman Larrick asked if there was anything new for that meeting and Mr.
Davenport stated that as of this date, there were no new applications.
Chairman Larrick announced for those present, there are three matters on the Agenda.
Chairman Larrick stated that he personally has a conflict of interest with the first matter and he
subsequently left the room before any discussion, turning the meeting over to Teresa Catlett, Vice
Chairman.
PUBLIC HEARING
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.
Frederick Co. Board of Zoning Appeals
Minutes of July 15, 2003 Minutes Book Page 1 183
ACTION -TABLED
Vice Chairman Catlett asked if anyone was present to speak on behalf of the
applicants. Steve Butler, Esquire, approached the podium and explained that James Drown, Esquire,
who is the Ramey's attorney for this matter, is on vacation. Mr. Drown had sent Mr. Davenport a
letter requesting that this item be tabled until the next BZA meeting on August 19, 2003. Mr. Butler
asked that this item be tabled until August 19, 2003.
DISCUSSION
Vice Chairman Catlett asked the Board if there was a problem in not hearing any of
the information today, so that it will not be repeated at the next meeting. Mr. Malcolm stated that the
Board should wait until the next meeting and possibly the full Board may be present then.
Mr. Rinker made a motion that this item be tabled until the August 19, 2003 meeting;
Mr. Malcolm seconded the motion, which passed by unanimous vote.
BE IT RESOLVED, THEREFORE, That Appeal Application #06 -03 of William
Larry Ramey and Elizabeth Ramey was unanimously tabled until the August 19, 2003 meeting
of the Board of Zoning Appeals.
u
Chairman Larrick returned to the Board Room and resumed chairing the meeting. He
stated there is another application today that the applicant has requested be tabled; namely, Variance
Request #08 -03 of Hazel Lambert. The meeting proceeded at this point with this particular matter,
out of sequence, in order to maintain continuity within the meeting process.
Variance Request #08 -03, submitted by Hazel Lambert for the elimination of the fifty (50) foot
zoning district buffer along the entire West property line for a commercial facility. This
property is located at the Southwestern corner of the intersection of Route 657 ( Senseny Road)
and Route 656 (Greenwood Road), and identified with Property Identification Numbers 65 -A-
7-8 and 65- A -7 -9, in the Shawnee Magisterial District.
ACTION - TABLED
Chairman Larrick asked if anyone was present representing the petitioner on this
request. Mark Smith with Greenway Engineering approached the podium and requested that this item
be tabled until the August 19, 2003 meeting. Mr. Smith proceeded with background on the reasons
for requesting this matter be tabled. Mr. Smith stated that approximately one year ago the Lambert
rezoning happened at Greenwood and Senseny Road in which a B2 zoning was requested. Greenway
Engineering worked with the neighbors at that time to try to proffer out as many items as possible.
One proffer was in place that is in relation to why they are here today, and that is a variance on the
buffering distances which would be replaced by a masonry wall. The Planning Commission and the
Frederick Co. Board of Zoning Appeals
Minutes of July 15, 2003 Minutes Book Page 1184
Board of Supervisors both approved the rezoning and they were aware of that proffer; however, under
State law they could not grant the variance because it is a BZA issue. One particular user desires to
build a car -wash on the B2 corner. Mr. Smith said that Greenway Engineering makes it a policy to
try to work with the neighborhoods to try to keep everybody informed. When Greenway started with
this applicant, they went through the issue of the lay -out of the corner, and if they were going to seek
the variance and utilize the property to its fullest extent, they should prepare enough information as
far as architectural details and aesthetics on the building. An architect was engaged by the client to
pursue some renderings and to look again at the masonry wall originally proffered. Mr. Smith stated
that the reason they are requesting this be tabled today is that at a neighborhood meeting in
preparation for this meeting, Greenway met with opposition to the construction of a car -wash.
Greenway is going to try to pursue the car -wash, in an aesthetic fashion that, hopefully, will be
amenable to the neighborhood. Greenway will set up another neighborhood meeting. The downside
is that if they are not successful in the variance, a car -wash can be built there; however, that is not the
desire of the applicant because he would like the additional space to do what he needs to do
architecturally.
Chairman Larrick stated that there is a second matter and this is simply the fact that
the Board does not have two of the seven members present. He stated that normally, if there is not
a full Board present, there is a rule that there must be at least four "yes" votes in order for the Board
to grant a variance. Chairman Larrick feels that when two members are absent, the odds are lower
that the variance will be granted, and the Board gives the applicant the opportunity to voluntarily
request the matter be tabled so that the applicant may come before a full Board.
Mr. Smith stated this was all right because they hoped to come to an agreement with
the residents and come back to next month's meeting more united.
Mr. Malcolm made a motion that this matter be tabled until the August 19, 2003
meeting; Mr. Perry seconded the motion, which passed by unanimous vote.
BE IT RESOLVED, THEREFORE, That Appeal Application #08 -03 of Hazel Lambert
was unanimously tabled until the August 19, 2003 meeting of the Board of Zoning Appeals.
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 - TABLED
Mr. Davenport presented the background information, stating that the subject property
is located off Route 50 west on Route 817, with a specific address of 314 Magic Mountain Road in
the Back Creek Magisterial District. In response to a complaint, Planning Staff inspected the subject
Frederick Co. Board of Zoning Appeals
Minutes of July 15, 2003 Minutes Book Page 1185
property on April 25, 2002. An inspection of that site revealed the presence of an automobile
graveyard. Staff's subsequent research of County records in the form of certificates of zoning
compliance by the Department of Motor Vehicles and business licenses approved by County staff did
not reveal that this property was approved to operate ajunkyard, 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 for junk, debris and tires on the site. Section 165 -50 lists
the uses that are permitted in the Rural Area Zoning District, of which automobile sales, graveyards
and salvage or 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. Mr. Davenport pointed to the displays provided by Staff showing various aerial photographs
through several periods in time. Staff could not find a consistent continuation of an automobile
graveyard. Mr. Davenport directed the Board's attention to the Exhibits provided by Staff showing
the October 1969, 1970, 1981, 1988 and March 2000 aerial photographs. The first zoning ordinance
was adopted in Frederick County in March 1967. The subject property was zoned Al, which was
Agriculture Limited, until the re- classification of Al into the Rural Area Zoning District. The Al
District never allowed auto sales, auto graveyards or salvage re- builder businesses. Mr. Cline did
submit some material to Staff to attempt to prove that the uses on this property are legally non-
conforming, what we call "grandfathered' ; however, Staff contends that this evidence does not prove
that the automobile graveyard or salvage yard existed continuously, which is Staffs key
determination, as of October 1969; it is not evident in the aerial photography. The applicant also did
not present evidence from the Department of Motor Vehicles or the Motor Vehicle Dealer Board for
zoning compliance or zoning certifications for automobile sales or the salvage operations. Section
149 of the 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 after the
enactment of this chapter, such uses will then become illegal, non - conforming. 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 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 of the Frederick County Zoning Ordinance.
Chairman Larrick asked Mr. Davenport if he was contending the property is in
violation of Section 165 -47. Mr. Davenport responded affirmatively and that Staff is seeking the
determination that 165 -47 is a violation also.
Mr. Rinker asked Mr. Davenport if the salvage yard could be transferred from one
owner to another owner and still be considered continuous. Mr. Davenport stated that the property
could be conveyed with permitted uses. Mr. Rinker asked if the "grandfather" option passes with the
land and Mr. Davenport stated it does.
Chairman Larrick requested the applicants come forward. Chairman Larrick reiterated
that today we only have five members of the Board present instead of the normal seven members.
In order for the Board to grant approval, there must be four affirmative votes. In line with what
Chairman Larrick stated during the last application, he gave the applicants the option to have their
Frederick Co. Board of Zoning Appeals
Minutes of July 15, 2003 Minutes Book Page 1186
application tabled because there is not a full Board, or the applicants may go forward. Mr. Cline
stated they would like to table their Appeal application until the next meeting.
Chairman Larrick asked if there were any Board members who knew they would not
be attending next month's meeting. None of the Board members indicated they would be absent for
next month's meeting.
Mr. Rinker made a motion to approve Mr. Cline's request to table this application, Mr.
Perry seconded the motion; and it passed unanimously.
OTHER BUSINESS
There was no other new business; therefore, the meeting adjourned at 3:55 p.m. by
unanimous consent.
Respectfully submitted,
r]
James Larrick, Jr., Chairman
Bev Dellinger, Secreta
Frederick Co. Board of Zoning Appeals
Minutes of July 15, 2003 Minutes Book Page 1187