BZA 03-18-03 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 March 18, 2003.
PRESENT James Larrick, Jr., Chairman, Gainesboro District; Thomas Malcolm, (representing
Shawnee District); Dudley Rinker, Back Creek District; Lennie Mather, Red Bud
District; Robert Perry, Stonewall District; Theresa Catlett, Vice Chairman, Opequon
District; Robert W. Wells, Member -At -Large
STAFF
PRESENT Patrick T. Davenport, Zoning and Subdivision Administrator; Renee' S. Arlotta,
Administrative Assistant
CALL TO ORDER
The meeting was called to order by Chairman Larrick at 3:25 p.m.
FEBRUARY 18 2003 MINUTES:
On a motion by Mr. Rinker and seconded by Mr. Perry, the minutes for the February
18, 2003 minutes were approved as presented.
PUBLIC HEARING
Variance #03 -03 of F. Wayne and Linda K. Wright for 40 -foot left and right side yard setback
variances to create a buildable lot for the construction of a single - family residence. This
property is located on Edwards Lane (Route 1301), and is identified with Property
Identification Number 42 -A -93 in the Gainesboro Magisterial District.
ACTION - APPROVED AS AMENDED
Patrick T. Davenport, Zoning and Subdivision Administrator, gave the background
information. After describing the setbacks and circumstances regarding this lot, Mr. Davenport told
the Board that it was staff s opinion that granting of this variance as submitted would be appropriate.
Ms. Mather asked if water and sewer were available; Mr. Davenport replied that it had
well and septic and that all of the lots in that area were on well and septic.
Ms. Linda Wright, applicant, stated that she had a letter with her from the health
department which stated that the well and septic had been approved.
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Frederick Co. Board of Zoning Appeals
Minutes of March 18, 2003 Minutes Book Page 1175
Chairman Larrick asked Ms. Wright if she agreed with everything Mr. Davenport had
told them or if she had any other statements she wished to make. Ms. Wright was satisfied with the
staff report as given. She said they just wanted to build a single family home on the lot.
Ms. Wright stated that she bought the property at auction and that they bought two lots,
one has an existing structure on it. Mr. Wayne Wright, applicant, gave the Board setback information
on the existing home.
The Board had further questions such as which way the new house would face, how
close would it be to the existing dwelling, and whether the applicants could move the house forward
on the lot. They stated that the lot narrows as it goes toward the back and they need at least 10 feet.
Mr. Wright said that all of the houses in the area are about the same size. He also told the Board that
the Health Department came out and verified that the house site was at least 100 feet from the
drainfield.
Mr. Donald Kidwell, an adjoining property owner, said that he was not there to speak
against the Wright's building a house but just wanted to make sure that his well does not get
contaminated.
Chairman Larrick explained that those lots would not be approved by today's standards
and that the Board of Zoning Appeals had no jurisdiction over well issues.
There was no one else present to speak for or against the application; therefore, the
public portion of the hearing was closed.
DISCUSSION
Mr. Perry stated that he was opposed to granting the full variance request if the
applicants did not need a full 40 feet on both sides.
Mr. Perry made a motion to grant a 39.5' variance on both sides instead of 40 feet; Ms.
Mather seconded the motion which passed by unanimous vote.
BE IT RESOLVED, THEREFORE, That Variance Application #03 -03 of F.
Wayne and Linda K. Wright was unanimously approved for 39.5 -foot left and right side yard
setback variances to create a buildable lot for the construction of a single- family residence.
Variance 904 -03 of Edward and Patricia Mitchler for a 15 -foot front yard setback variance
from Wellbourne Lane to create a buildable lot for the construction of a single - family residence.
The property is located in Whitham Estates, Lot 18 on Wellbourne Lane, and is identified with
Property Identification Number 26- 7 -3 -18 in the Back Creek Magisterial District.
ACTION - DENIED
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Frederick Co. Board of Zoning Appeals
Minutes of March 18, 2003 Minutes Book Page 1176
Patrick T. Davenport, Zoning and Subdivision Administrator, gave the background
information. Mr. Davenport stated that after visiting the site, staff did not find that the topography
met the condition of "exceptional." In the absence of exceptional topography such as rock
outcroppings, cliffs, etc., staff could not recommend approval of the variance as it does not meet a
hardship approaching confiscation.
Mr. Ed Mitchler and his wife Patricia were present to represent the application. Mr.
Mitchler stated that he wished to address three of the points made in the staff report. Number 1) He
and his wife were told before they purchased the property that Wellbourne Road would be a
continuation of the gravel road that Mr. Whitham used to go across his property. However, when the
road went through, it was built 25 to 30 feet south of the gravel road which is still there. Number 2)
On Exhibit B, the contours shown do not give the precise elevation. He asked the Board to refer to
the transmittal from Greenway Engineering shows the contours as being higher in elevation. Finally,
the third item he wished to address was that he was not asking for a front setback variance, he wanted
a side setback of 15 feet from Parishville Road because that's the direction his home would face. Mr.
Mitchler added that only a portion of the garage and porch would go over the 15 -foot line.
Chairman Larrick asked for verification regarding the side vs. front setback issue; Mr.
Davenport replied that the property was on a corner lot; therefore, it had two `front yards.'
Mr. Mitchler told the Board that John Scully was developing the area, and Mr. Scully
advised him to request the variance so the house would not "stick up" out of the ground.
Greenway Engineering was not represented to explain why the house may not be able
to be built on the existing terrain.
Mrs. Mitchler stated that they were concerned about the amount of water runoff they
would face if they did not get the variance, especially into the garage. Mr. Mitchler told the Board
that the lot next to them has the same problem.
Mrs. Catlett asked for more information regarding the construction of Wellbourne
The Mitchlers showed another picture which depicted the steep slope of the lot. There
was further discussion regarding the possibility of future drainage problems.
The public portion of the hearing was closed at this point.
DISCUSSION
Chairman Larrick asked staff if there was anything in the code that described the
various levels of topography; specifically, what constitutes `exceptional' topography as opposed to
medium or mild slope. Staff replied that it is a matter of interpretation.
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Frederick Co. Board of Zoning Appeals
Minutes of March 18, 2003 Minutes Book Page It 77
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Mr. Rinker said that the land drops off rather quickly in that area and made a motion to grant
the variance as requested. Mr. Wells seconded the motion; however, the motion failed by majority
vote. The vote was as follows:
AYES Mr. Rinker, Mr. Malcolm, Mr. Wells
NAYS Mr. Perry, Mrs. Catlett, Ms. Mather, and Chairman Larrick
BE IT RESOLVED, THEREFORE, That Variance Application #04 -03 of Edward and Patricia
Mitchler, for a 15 -foot front yard setback variance from Wellbourne Lane to create a buildable
lot for the construction of a single - family residence, was denied by majority vote.
OTHER BUSINESS
Chairman Larrick asked if any of the members who had attended the BZA seminar
recently had anything to share.
Mr. Perry stated that a good point was brought up that the responsibility should lie with
the applicant to show that they have a hardship, and that it should be a part of the application. Mr.
Perry also mentioned that the issue of alternate members was discussed.
Mrs. Catlett said that they discussed the problem of how it is difficult to go with what
your heart tells you as opposed to what the code says, and that the code does hold the BZA to the
strict hardship rule.
Ms. Mather said that she learned quite a bit at the seminar.
There was no other new business; therefore, the meeting adjourned at 4:05 p.m. by
unanimous consent.
Respectfully submitted,
Frederick Co. Board of Zoning Appeals
Minutes of March 18, 2003
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Minutes Book Page 1178
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James Larrick, Jr., Chairman