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BZA 09-30-03 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia September 30, 2003 3:25 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of August 19, 2003 PUBLIC HEARING 3) Appeal Application #10-03, submitted by James R. Richards, to appeal a violation regarding a trucking business, of the Zoning Ordinance, § 165-50, Permitted Uses in the RA (Rural Areas) Zoning District, and §165-50(H), Home Occupations in the RA (Rural Areas) Zoning District. This property is located at 224 View West Lane, and is identified with Property Identification Number 43-7-10A in the Stonewall Magisterial District. 4) Variance Application #11-03 of High View One, LLC, to request a variance of the RA (Rural Areas) Zoning District setback requirements, applying 10 foot side yards and 25 foot rear yards, for the following parcels: Identification Numbers 60 -A -2B -A-2-26, 28-30, 33- 38; 60A -C -B-1-8, 10-16, 20-24, 27-35, 37-48; 60A -E -B-1-25; 60A -D -B-1, 6-9,13,18-29; 60-A-43; 50-A-27; 60-A-44; 50-A-25. These properties are located 7.5 miles west of Winchester, on the northwest side of Wardensville Grade (Route 608) and south of Glen Ridge Road, in the Back Creek Magisterial District. 5) Other FILE COPY MEETING 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 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: 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 16th. Chairman Larrick stated that he will also be out of town on September 16`t'. 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. Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 Minutes Book Page 1188 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. ACTION - APPEAL DENIED AND DECISION OF ZONING ADMINISTRATOR AFFIRMED 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 staff's 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. Mr. 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 determination that the subject property is in violation of Section 50 of the Zoning Ordinance, that an Frederick Co. Board of Zoning Appeals Minutes Book Page 1189 Minutes of August 19, 2003 2 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 their judgment 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 nearly adjacent 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 junkyard 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 believe, however, despite the fact that he will probably lose money in Frederick Co. Board of Zoning Appeals3 Minutes Book Page 1190 Minutes of August 19, 2003 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 other processors 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, just 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 doing this, 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; they just 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 zoning 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 4 Minutes Book Page 1191 Minutes of August 19, 2003 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 of a 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 or parts 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 ifthey 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. 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 a junkyard 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 BZA 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 Book Page 119 2 Minutes of August 19, 2003 5 Vice Chairman Catlett asked if there 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 good job with what he's doing, getting trucks back out at a reasonable rate, and he does a service to that community. Mr. Rinker asked if 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 Chairman 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 of time 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. Board of Zoning Appeals 6 Minutes Book Page 1193 Minutes of August 19, 2003 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 B2, 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 in compliance. Mr. Malcolm made a motion that the decision of the Zoning 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 Ramey 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, 2003 7 Minutes Book Page 1194 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 Al, 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 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, 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 Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 8 Minutes Book Page 1195 zoned M2 and she gave him a copy of the Metropolitan Regional Information Systems that shows this. 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. 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. Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 9 Minutes Book Page 1196 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 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 he 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 of 2001, 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. Frederick Co. Board of Zoning Appeals 10 Minutes Book Pae 119 7 Minutes of August 19, 2003 g 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, 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 stated 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 that junkyard as far as he knew. When he bought it, he didn't run it but a man staying there ran it as a junkyard. 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 of the 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 a junkyard 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 a junkyard 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. Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 1 1 Minutes Book Page 1198 Mr. Rinker stated, if the Board would rule against staff and say it was a qualified 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 not been in operation, and that this location has functioned as a junkyard since sometime in the 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. Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 12 Minutes Book Page 1199 ACTION - APPEAL OVERRULED AND DECISION OF ZONING ADMINISTRATOR AFFIRMED Mr. Davenport presented the background information. Ina 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 a mix of housing types 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 with 37C -1-A. Staff is requesting affirmation that the decision regarding these buffering requirements as specified in 37C -1-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 a multitude of housing 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 Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 13 Minutes Book Page 1200 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. 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 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 6r'', 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. Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 14 Minutes Book Page 1201 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 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 a variance 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. Frank, 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. 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 Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 15 Minutes Book Page 1202 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 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 #09-03 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, James Larrick, Jr., Chairman Bev Dellinger, Secretary Frederick Co. Board of Zoning Appeals Minutes of August 19, 2003 16 Minutes Book Page 1203 APPEAL APPLICATION #10-03 James R. Richards Staff Report for the Board of Zoning Appeals Prepared: September 15, 2003 Staff Contact: Rebecca Ragsdale This report is prepared by the Frederick County Planning Staff to provide information to the Board of Zoning Appeals to assist them in making a decision on this request. It may also be useful to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: September 30, 2003 LOCATION: 224 View West Lane MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBERS: 43-7-10A PROPERTY ZONING & USE: Zone: RA (Rural Areas) District Land Use: Residential (as indicated by applicant) and Truck Parking and Repair Facility ADJOINING PROPERTY ZONING & USE: Zone: RA (Rural Areas) District Land Uses: Residential and Agricultural APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance concerning an ordinance violation of the permitted uses section of the RA zoning district. REASON FOR APPEAL: The applicant contends he is not in violation of the permitted uses section of the Zoning Ordinance with regard to trucking operations on the referenced property. HISTORY: This department has received complaints regarding tractor trailer trucking activities, including repair and parking, on the property at 224 View West Lane since January 1997. The property owners were first cited with a violation on January 29, 1997. On November 5, 2002, Mr. Richards was found guilty of a zoning violation of Section 165-50, the same section violation which is appealed in this application, for having a trucking business not allowed in the RA Zoning District. He was fined and advised by the Court to abate the violation. Staff Report — James Richards Appeal Application #10-03 September 15, 2003 Page 2 The zoning violation was not abated and staff, once again, began receiving complaints in January 2003. In investigating, the complaints were found to be valid, as tractor trailer truck parking and repair activities were confirmed by staff. A criminal complaint was filed and the property owner was brought back to court, as the violation was never abated. Due to failure to correctly notify the property owner prior to court action, the case was dismissed on June 3, 2003. STAFF COMMENTS: In response to complaints received in June 2003, the Planning Department staff investigated alleged trucking activities on the property at 224 View West Lane. Located on the property is a shop building/tenant house which was not inhabited by residents at the onset of this violation case. Immediately adjoining 224 View West Lane, is property (178 View West Lane/Property ID Number: 43-7-10) owned by the applicant, as well as where he resides. Staff confirmed tractor trailer parking, including two to three trucks and trailers, and repair activities on the property at 224 View West Lane. A trucking business is not an allowed use in the RA zoning district nor do the trucking activities carried on by the applicant meet the definition of a home occupation; a home occupation is an allowed use in the RA zoning district. This home occupation information was included for the applicants benefit to clarify requirements. The definition of a home occupation is included below for your information. HOME OCCUPATION: An occupation or profession customarily carried on in a dwelling unit, which: A. Actually is carried on wholly within the principle building or structure; B. Is carried on by members of the household residing on the premises; C. Is clearly incidental and secondary to the use of the dwelling unit for residential purposes with no exterior display, no exterior storage of materials and no exterior indication of the home occupation or variation from the residential character of the principle building or neighborhood; D. Produces no offensive noise, vibrations, smoke, dust, heat, odor, glare, traffic hazard or congestion and does not adversely affect the surrounding properties; and, E. Requires no internal or external alterations or construction features or equipment or machinery not customarily in residential areas. A notice of violation (attached) was sent to the property owner(s) on July 9, 2003 and was received by the applicant on July 11, 2003. The notice specified that the tractor trailer parking and repair activities on the property are not allowed in the RA zoning district and that all the criteria of a home occupation were not being met: the trucking business is not carried on by a person residing on the premises (A), there are external indications of the trucking business (C), and the activities carried on adversely affect surrounding properties (D). Staff Report — James Richards Appeal Application #10-03 September 15, 2003 Page 3 STAFF CONCLUSION FOR THE SEPTEMBER 30, 2003 MEETING: In the appeal application, the applicant acknowledges that he parks and repairs trucks on the property at 224 View West Lane. The applicant also indicates that tenants presently occupy the building on the property. These tenants, however, are not related to the trucking business activities on the 224 View West Lane property and are not the owners of the trucks that are parked on the property. Therefore, the truck repair and parking activities are not a permitted use in the RA Zoning District. 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. APPLICATION FOR APPEAL IN THE COUNTY OF FREDERICK, VIRGINIA MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT 1. The applicant is the owner X other . (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: James R. Richards NAME: ADDRESS 178 View west Lane ADDRESS: Clearbrook, VA 22624 TELEPHONE: (540) 678-4161 TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): 224 View West Lane, off Welltown Pike, west of Stephenson, Virginia 4. Magisterial District: Stonewall 5. 14 -Digit Property Identification No.: 43-7-10A 6. The existing zoning of the property is: 7. The existing use of the property is: Residential 8. Adjoining Property: USE ZONING North Residential East Residential South Residential West Residential RA 9. Describe the decision being appealed. (Attach a copy of the written decision.) The July 9, 2003 determination that I am conducting a home occupation at 224 View West Lane pursuant to Frederick County Code, Article XXII of the Zoning Ordinance 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) I am a truck driver for RAC Trucking in Gainesboro, Virginia. I drive my trucks to destinations I have dispatched to me by RAC Trucking. I park my trucks on my two lots on View West Lane and sometimes do work on them. I do not conduct an occupation "wholly within the principal building or structure" on my property. 11. Additional comments, if any: There are tenants living at 224 View West Lane. This is the primary use of the building on 224 View ti6st Lane 12. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the appeal is being sought, including properties at the sides, rear, and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notified by mail of this application: (Please list complete 14 -digit property identification number.) NAME SEE ATTACHED LIST Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # AGREEMENT APPEAL # � `0 3 I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions required by the BZA. I authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF SIGNATURE OF (if other than appli�___, ATE 7/30/03 c"v -OFFI E USE ONLY a BZA PUBLIC HEARING OF CTION: - AT - APPEAL OVERRULED APPEAL SUSTAINED Fik: KAWP\04MAPPLICATAPPEAL Rev. 1/97 SIGNED: DATE: BZA CHAIRMAN COUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/665-6395 CERTIFIED MAIL July 9, 2003 Mr. James B. Richards 178 View West Lane Clearbrook, VA 22624 RE: 224 View West Lane; :property Identil cation Number (P01):43 -7-10A Zoning District: RA (Rural Areas) Dear Mr. Richards: On June 11 and June 30, 2003, this office received complaints concerning tractor trailer parking and repair activities at the above -referenced property. On June 27, 2003, an inspection ofthe above -referenced property was conducted. The inspection revealed the presence of one truck and one trailer parked at 224 View West Lane and one tractor trailer rig (truck and trailer) parked at 178 View West Lane. On June 30, 2003, an inspection of the property was made revealing the presence of one trailer, one truck, and one rig all parked at 224 View West Lane. Staff from our office met with you at 224 View West Lane to discuss activities on your property. Per this discussion you indicated that you utilize the building at 224 View West Lane for repair of your tractor trailers on a frequent basis. You also indicated that the brown and white truck that was parked at 224 View West Lane was owned by Mr. Kerns, who you indicated lived in Maryland. In accordance with Section 165-50 of the Frederick County Zoning Ordinance, trucking businesses are not a permitted use in the RA (Rural Areas) Zoning District. In accordance with Section 165-50(H) of the Frederick County Zoning Ordinance, a home occupation business is allowed in the RA Zoning District. Home occupations are defined in Article XXII of the Zoning Ordinance: HOME OCCUPATION: An occupation or profession customarily carried on in a dwelling unit, which: A. Actually is carried on wholly within the principle building or structure; B. Is carried on by members of the household residing on the premises; C. Is clearly incidental and secondary to the use of the dwelling unit for residential purposes with no exterior display, no exterior storage of materials and no exterior indication of the home occupation or variation from the residential character of the principle building or neighborhood; D. Produces no offensive noise, vibrations, smoke, dust, heat, odor, glare, traffic hazard or congestion and does not adversely affect the surrounding properties; and, E. Requires no internal or external alterations or construction features or equipment or machinery not customarily in residential areas. 107 North Kent Street • Winchester, Virginia 22601-5000 Mr. James B.Richards July 9, 2003 Page 2 The trucking activities conducted at 224 View West Lane do not conform to the definition of a home occupation as defined above. The primary use of the building located on the property is a repair shop for tractor trailers and is not a structure used exclusively for human habitation, as the definition of a dwelling specifies in Article =1 of the Frederick County Zoning Ordinance. The trucking activities conducted at the structure at 224 View West Lane are not carried on by a person residing on that property. Therefore, in accordance with Section 165-50 of the Frederick County Zoning Ordinance, the presence of tractor trailer parking and the use of the building at 224 View West Lane as a truck repair facility constitutes a violation of the Frederick County Zoning Ordinance. This office will allow thirty (30) days from receipt of this letter to resolve this violation. Specifically, resolution of this violation may be resolved by discontinuing tractor t ailer f:arking and repair activities on the property. Failure to comply with the Zoning Ordinance it this time period will result in a criminal complaint being filed against you. You may have the right to appeal this notice of violation within thirty (30) days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable, if it is not appealed within thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165- 155A(1) of the Frederick County Zoning Ordinance. This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information you may want to submit, and a $250.00 filing fee. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. Please do not hesitate to contact Rebecca Ragsdale, the staff member assigned to this matter, regarding any questions that you may have at (540) 665-5651. Sincerely, Patrick T. Davenport, C.Z.A. Subdivision and Zoning Administrator PTD/RAR/bad U..,Rebeccai6'iolaft n IView WesIVBNOVRicha ds.wpd APPLICATION #11-03 OF HIGH VIEW ONE, LLC Staff Report for the Board of Zoning Appeals Prepared: September 15, 2003 Staff Contact: Patrick T. Davenport, Zoning Administrator This report is prepared by the Frederick County Planning Staff to provide information to the Board of Zoning Appeals to assist them in making a decision on this request. It may also be useful to others interested in this Zoning matter. BOARD OF ZONING APPEALS HEARING DATE: September 30, 2003 LOCATION: Seven and one half miles west of Winchester, located on the northwest side of Wardensville Grade (Route 608) and south of Glen Ridge Road; and parcels west of Glen Ridge Road and north of Manor Drive abutting Glen Ridge Road, Valley View Lane, Cadbury Heights Drive and Leeds Manor Drive. MAGISTERIAL DISTRICT: Back Creek PROPERTY ID NUMBERS: 60 -A -2B -A-2-26, 28-30, 33-38; 60A -C -B-1-8, 10-16, 20-24, 27-35, 37-48; 60A -E -B-1-25; 60A -D -B-1, 6-9,18-29; 60-A-43; 50-A-27; 60-A-44; 50-A-25 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) District Land Use: Vacant/Residential ADJOINING PROPERTY ZONING & USE: Zoned: RA (Rural Areas) District Land Use: Residential and Vacant VARIANCE REQUESTED: A variance of the RA (Rural Areas) zoning district setback requirements, and maintain the existing 20 foot or 30 foot front building restrictions lines for each lot as applicable, and apply RP (Residential Performance) District setback requirements of side yard: 10 foot and rear yard: 25 foot for each lot. REASON FOR VARIANCE: The application of the RA setbacks on existing platted lots render the lots unbuildable. STAFF COMMENTS: The plats for this subdivision, known as "High View Manor" were originally approved on September 10, 1962 in Deed Book 281, Page 671. The recorded plats illustrate front setback lines as 30' and 20'. However, no setback lines were illustrated for the sides and rear property lines. The current Rural Areas (RA) zoning district setback requirements are 50' on the sides and rear property lines if the adjoining use is residential and 100' if the property adjoins agricultural uses. These requirements were established as an amendment to the Zoning Ordinance on December 11, 1991. Since the recorded plats did not illustrate the sides and rear setbacks for the lots in High View Manor, the setbacks revert to the current requirements in accordance with Frederick County's vested rights policy statement (3A). Statement 3A reads: "The location of setback lines shall be vested if the appropriate terminology and numeric information is clearly depicted on a subdivision plat that is legally approved and recorded". Exhibit "1" illustrates the 126 parcels associated with the variance request. The average lot size of all but three of the parcels associated with the request are approximately 0.33 acre. An inspection revealed that six dwellings have been constructed in this subdivision. The roads platted to serve these lots have been constructed to minimum driveable standards or not constructed at all. Three specific parcels associated with the request (50-A- 27: 92 acres, 50-A-25: 175 acres and 60-A-44: 7 acres) contain areas which would allow for a single family dwelling without a variance. Exhibit "2" illustrates these three parcels. The applicant did not submit septic drain field locations for the parcels associated with the variance request. However, Frederick County does not have limitations regarding drain field easements and it is reasonable to presume that some of the lots will be consolidated or the drain fields will be situated according to the soil characteristics on adjacent parcels. The Frederick County Comprehensive Policy Plan and the Subdivision Ordinance (§ 144-20) discourages serving parcels outside future rural community centers located in the Rural Areas Zoning District with sanitary sewer systems. Therefore, prior to the issuance of a building permit for a lot in this subdivision, approval by the Health Department for appropriate onsite sewage disposal will be necessary. High View One, L.L.C. has recently filed a lawsuit against Frederick County seeking declaratoryjudgment due to a decision made by the Subdivision Administrator regarding this subdivision. The property owners submitted a boundary line adjustment and lot consolidation plat for the parcels, generally increasing the lot sizes. One of the review comments was to provide appropriate setback lines on the redrawn parcels. The lawsuit alleges among other charges, that the Subdivision Administrator incorrectly applied the current setback requirements of the Rural Areas (RA) Zoning District setback to the proposed plats. Unless applicable revisions are made to the zoning ordinance, Frederick County maintains that the setback requirements for the Rural Areas zoning district will continue to be applied to all vacant lots in accordance with the Frederick County Vested Rights Policy and the Zoning Ordinance. STAFF CONCLUSION FOR THE SEPTEMBER 30, 2003, MEETING: The Code of Virginia, Section 15.2-2309(2) states that no variance shall be authorized by the Board unless it finds that a) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity, and; c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. O:\Agendas\BZA\Staff Report\2003\High View One.doc When the existing side and rear setback requirements are applied to the subject parcels with the exception of the parcels illustrated on "Exhibit "2", no buildable area exists. Other properties throughout the zoning district have the same setback requirements (when the adjoining uses are similar). However, in this instance, strict application of the ordinance produces an undue hardship on most of the parcels associated with the variance request. Given the circumstances of the existing regulations, the granting of this variance as submitted would be appropriate with the exception of parcels: 50-A-27, 50-A-25 and 60-A-44. OAAgendas\BZA\Staff Report\2003\Iigh View One.doc Page l of - APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT 1. The -applicant is the owner X other (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: High View One, LLC C70 s Moore Lawson, sq. ADDRESS Lawson and Silek, P.L.C. 16 e er ive, Sui e 3 Winchester, VA 22603 TELEPHONE: (540) 665-0050 NAME: ADDRESS: TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): 7-5 mi 1 Pc kT^cf of Wi ilr`hacl or 7 a _ le Grade (VA Rt. 608) and South of Glen Rigge Road- and Parcels West of Glen Ridge Road and North of Manor Drive abutting Glen Ridge Road, Valley View Lane, Cadbury Heights Drive, and Leeds Manor Drive. 4. The property has a road frontage of feet and'a depth of feet and consists of acres. (please be exact) See plat to be provided under separate cover. 5. The property is owned by High View One, LLC as evidenced by deed from Walter L. & Linda S. Ritter recorded (previous owner) in deed book no. on page of the deed books of the Clerk of the Court for Frederick County. Attach a copy of the deed. See attached Exhibit "A". Page 2 of 5 6. Magisterial District: Back Creek Tract I:60 -A -2B -A-2-26 28-30 33-38; 60A -C 7. 14 -Digit 6 Prop eBr-t Idec�ntification No.: -B-1-8, 10-16, 20-24 '27-35, 37-48; 60A -B -B Trac;IVOASU-A- 5 13 1Q-29- Tractit „BAR al Areas -RA III: 50-A-27; 60-A-44 8. The existing zoning of the property is: 9. The existing use of the property is: Duly platted, recorded Subdivision lots 10. Adjoining Property: USE ZONING North East South West See Attached plats Exhibit "C" 11. Describe the variance sought in terms of distance and type. (For example: "A 3.5' rear yard variance for an attached two car garage.") A variance of the RA Rural Areas zoning district setback requirements, and maintain the existing 20' or 30' front building restriction lines for each lot as applicable, and apply RP Residential Performance District setback requirements of side yard: 10' and rear yard- 25' for each lot. Said Waiver is recommended for approval by Frederick County Planning Staff. 12. List specific reason(s) why the variance is being sought in terms of: - exceptional narrowness, shallowness, size or shape of property, or exceptional topographic conditions or other extraordinary situation or condition of property, or - the use or development of property immediately adjacent thereto The Application of the RA setbacks on existing platted lots render the lots unbuildable. 13. Additional comments, if any High View One, LLC files this variance subject to and specifically reserving all vested grandfathered rights that it has in the property. Said rights are more specifically set forth in its lawsuit which has been filed with the Circuit Court of Frederick County. The terms and allegations contained therein are specifically incorporated in this proceeding. page 3 of 5 14. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the variance is being sought, including properties at the sides, rear and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notifd by mail of this application_ NAME pack i.. & Violet Lynch Address ZTS-roX un e►m es �, 22602 Property ID# 60-A-42 NAME William Michael Robert Flagg Address 813 Olde Georgetown Ct. , Great Falls, VA 22066 Property ID# 50-A-24 NAME Clyde & Syl?ille Craft Address 416 Manor Dr. , Winchester, VA 22602 Property ID# 50-A-28 NAME Wales L. & Linda S. Ritter Address- 476 Old Charles Town Rd., Be* yville, VA 22611 Property ID# 50-A-26 NAME jaws Allan A►xlarcnn Address_ 117 Dogwood Rd., Winchester, VA 22602 Property ID# 50 -A -26A NAME_ Tomha S 7 S hi> 1 ly Address 1227 Rodes Cir. , Winchester, VA 22601 Property ID# 50 -A -30B NAME 71Prri Arml i a C'nrhran Address 274 Throughwood Trail, Winchester, VA 22602 Property ID# 49-A-27 NAME__SEE ATTACHED MgTIMLMgCE - Address Property ID# Adjacent Property Owners, continued: NAME Address Y.U. Box 36148 Greensboro, N.C. 27416 r��ohnson Property ID # 60A ID B 2,3 Address 7645 Logging Lane James E. Ludwick, II Indian Head, MD 20640 Property ID # 60A ID B 4,5 Address 130 Glen Ridge Road Lewis N. Kenney Winchester, VA 22602 Property ID # 60A IDB 10,11 Address P.O. Box 76 Willard H. Peyton Lincoln, VA 20160 Property ID # 60A ID B 12 Robert W. White Address 133 Valley View Lane Property ID # Winchester, VA 22602 Edgar F. Long Address 2801 Wardensville Grade Property ID # 60 ((2)) 2 Address P.O. Box 295 Mahlon B. Marcus Stephenson, VA 22656 Property ID # 60A 2B A 31 Address d 434 Singhass RZ2602 Owen S. Mayhew Winchester, V Property ID # 60A 2B 32 Address 242 Conner Lane Nancy Wallace Winchester, VA 22602 Property ID # 60 ((A)) 30 Address 497 Back Mountain Road Trevor S. Johnson Winchester, VA 22602 Property ID # 60 ((A)) 1 Address 2800 Wardensville Grade Trevor S. Johnson Winchester, VA 22602 Property ID # 60 ((A)) 2 Address HC 63, Box 840 Bernice R. Moyers Romney, WV 26757 Property ID # 60 ((2)) 2 B p #o L-1�Os oy, �s Q + �s / &,�4 P. / - C W"jcNa Diane B. Bross Address 514 Armourdale Drive Winchester, VA 22601 Property ID # 60 A 2B A 27 Civetta Corporation Address 123 Main Street Hingham, MA 02043 Property ID # 60 A 2A A4 Charles A. Spaid, Jr. Address 224 Manor Drive Winchester, VA 22602 Property ID # 60A 2A A 11, 12, 20-24 Peter Mark James Address 125 Crooked Back Loop Kitty Hawk, NC 27949 Property ID # 60A ID B 17 Glendon E. Whitley Address 454 Girard Street, Apt. 202 Gaithersburg, MD 20877 Property ID # 60A 1C B 36 Dennis M. Pascac Address 9496 Lynhall Place Alexandria, VA 22309 Property ID # 60A IC B 25,26 Kevin A. Shelly Address 135 Glen Ridge Road Winchester, VA 22602 Property ID # 60A 1 C B 17, 18, 19 Trevor S. Johnson Address 497 Back Mountain Road Winchester, VA 22602 Property ID# 60A IC B 9 CAy t Z–L�—' 6 c'j /1 E/( - p #o L-1�Os oy, �s Q + �s / &,�4 P. / - C W"jcNa Page 4 of 5 15. Provide a sketch of the property (you may use this page). Show proposed and/or existing structures on the property, including measurements to all property lines and to the nearest structure(s) on adjoining properties. Please include any other exhibits, dta"igs or photographs with this application - See Plat to be provided under separate cover. Page 5 of 5 AGREEMENT VARIANCE # // -03 I (we), the undersigned, do hereby respectfully make application, and petition the Frederick County Board of Zoning Appeals (BZA) to grant a variance to the terms of the Frederick County Zoning Ordinance as described herein. I agree to comply with any conditions for the variance required by the BZA. I authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I understand that the sign issued to me when this application is submitted must be placed at the front property line at least seven (7) days prior to the BZA public hearing and maintained so as to be visible from the road or right -0f --way until the hearing. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. r � SIGNATURE OF APPLICANT DATE i SIGNATURE OF OWNER D ATE (if other than applicant) -OFFICE USE ONLY- BZA PUBLIC HEARING OF0/AT 0� ACTION: E- APSIGNED: BZA CHAIRMAN DENIAL DATE: EXHIBIT "I" 00 rn w r r C� C o o �Li >o go y z =37 T T C m" 00 rn w r r C� EXHIBIT "2" 9 VESTED RIGHTS POLICY STATEMENT FOR FREDERICK COUNTY, VA The information set forth in this document is intended to define the requirements of the Code of Frederick Countv that maintain a vested right when provided on a legally approved development plan, or a legally approved and recorded plat. It is envisioned that these requirements be vested perpetually unless future legislative actions at the State or Federal levels mandate otherwise. 1) Master Development Plans: a) Overall land use plans shall be vested when depicted on an approved master development plan. b) Proposed residential densities, the type of residential dwelling, the number of residential dwellings within various development phases, and commercial or industrial floor to area ratios (FAR) shall be vested if the appropriate terminology and numeric information is clearly depicted on an approved master development plan. c) Proposed widths for required buffers shall be vested if the appropriate 'terminology and numeric information is clearly depicted on an approved master development plan. However, requirements for screening shall be required as mandated by the current ordinance. d) Percentages or acreage of required common open space and recreational areas shall be vested if the appropriate terminology and numeric information is clearly depicted on an approved master development plan. e) The number of recreational areas designated on an approved master development plan shall be vested. However, required recreational amenities and installation specifications shall be mandated by current ordinance requirements. 2) Subdivision Design Plans: a) The use of each parcel and the number of lots in each use shall be vested when depicted on an approved subdivision plan. b) The location and acreage of each parcel of land dedicated for common open space or for public use shall be vested if the appropriate terminology and numeric information is clearly depicted on the approved subdivision design plan. C) The location and width of all road right-of-ways provided on an approved subdivision plan shall be vested provided that the road classification and numeric information is clearly depicted. 3) Subdivision Plats: a) The location of setback lines shall be vested if the appropriate terminology and numeric information is clearly depicted on a subdivision plat that is legally approved and recorded. b) The location and design of proposed buffers and screening shall be vested if the appropriate terminology and numeric information is clearly depicted on a subdivision plat that is legally approved and recorded. c) The location and acreage of each parcel of land dedicated for common open space or for public use shall be vested if it is consistent with the approved subdivision plan, and if the appropriate terminology and numeric information is clearly depicted on a subdivision plat that is legally approved and recorded. d) The location and width of all road right-of-ways.shall be vested if the information is consistent with the approved subdivision plan, and if the appropriate road classification and numeric information is clearly depicted on a subdivision plat that is legally approved and recorded. e) The allowable density which results from future subdivisions of a parent tract shall be vested if the appropriate terminology and numeric information is clearly depicted on a subdivision plat that is legally approved and recorded. 4) Site Development Plans: a) All requirements provided on an approved site development plan shall be valid for five years from the official approval date of the plan. The requirements provided on an approved site development plan shall only be vested if building permits have been issued prior to the date of site plan expiration. b) Site plans shall be allowed to be approved for phased development. In the event that outstanding phases are not developed when the expiration date of a site development plan is realized, all requirements associated with the individual phases shall only be vested if building permits have been issued for the individual phases by Frederick County. c) Site development plans that have been submitted for review but have not received official approval from Frederick County shall not be vested from new design requirements or from new performance standards. VIRGR-,TIA: IN THE GENERAL, DISTRICT COURT FOR FREDERICK COUNTY HIGH VIEW ONE_ LLC Plain V. In Chancery No: BOARD OF SUPERVISORS OF THE COUNTY OF FREDERICK, VIRGINIA SERVE: Richard C_ Shickle 292 Greenspring Road Winchester, VA 22603 and THE COUNTY OF FREDERICK, VIRGINIA SERVE: Lawrence Ambrogi, Esquire County Attorney 107 N_ Kent Street. Suite 202 Winchester, VA 22601 Defendants. BILL OF COMPLAINT FOR pECLARATORY JUDGMENT AND OTPER RELIEF COMES NOW, High View One, LLC ("HVO'), the Complainant, by Counsel, and moves this Honorable Court for entry ofdeclaratory judgment, injunctive relief, and suchotherreliefagainst the Defendants as may be appropriate against the Defendants. As the basis therefore, HVO aver: as follows: I_ PARTIES 1. Complainant_ HVO, is a `'irginialimited liability company, organized undertne laws BSE—d Vl0/Vag d EVE -1 150VZz1aV5+ N3115 B NOSMVI-W01� m i t E002-80-80 of the Commonwealth of Virginia, and at all times relevant hereto possessing the requisite certificate of authority to transact its affairs therein. 2_ At all times relevant hereto, Defendant Patrick T. Davenport, ("Davenport") was the Zoning and Subdivision Administrator for the Department of Planning and Development for the County of Frederick Virginia (the "County'D. 3. The County ofFrederick is apolitical subdivision ofthe Commonwealth of Virginia, and is vested with the authority to implement and enforce the Zoning Ordinance of the County and related ordinances and regulations. 4. The Board of Supervisors ("Board''') is the legislative body of the County_ It is the administrative body charged with the responsibility of adopting, amending, and administering the Comprehensive Plan, the Zoning Ordinance, the Zoning Map, the Site Plan, and related ordinances and regulations of the County. The Board is joined in this suit for the purpose of bringing all parties before this Court to effect complete justice. IL ALLEGAA ONS 5. On or about September 10, 1962, High View Manor, Inc_ ("HVM") caused Deeds of Dedication for a subdivision known as Nigh View Manor ("Subdivision') to be recorded among the land records of the County, in Deed Book 281 at page 671 and in Deed Book 281 at page 682. The aforementioned Deeds of Dedication are attached hereto and incorporated herein by reference collectively as "Exhibit A" ("Deeds of Dedication') - 2 65E-� Y10/500'd EYE -i 150YZZ10Y5+ A311S 1 NOSMd1—WOJd E0:11 EOOZ-80-80 6. Simultaneous with the recordation of the Deeds of Dedication_ the Subditi:sion Plats were duly recorded among, the land records for the County. The aforementioned duly recorded approved plats are attached hereto and incorporated herein by reference collectively as `Fxhi oit .B " C'Subdi-vision Plats'). 7. The Subdivision Plats were approved by the sanitarian, health director, and Byron Brumbaek, the then Chairman of the Board for the County. Each such County official affixed his signature to the Subdivision Plats prior to the recordation of same_ 8. The Subdivision Plats are the most recent, legally approved and recorded Subdivision Plats regarding the Property_ 9_ The Subdivision Flats clearly depict all appropriate terminology and numeric information, including section and lot numbers and building setback lines impacting the property_ 10. Certain improvements have been made to the Subdivision ir, cluding the construction of roads and other improvements. The Subdivision has continuously developed over tune_ Numerous lots have been sold and homes have been comstructed on lots vrithin the Subdivision. Moreover, upon information and belief, over time. existing structures have been modified in a mamner where the structures abut lot lines, or encroach upon lot lines. 3 BSE -d bl0/900 d EtE-1 1SOtZZ10bS+ X311S B NOSlddl-woj� E0:11 E00Z-80-80 11. On or about February 14, 1990, the Board adopted a comprehensive amendment to the zoning ordinance. Neither the County, nor the Board, notified HVO's predecessor in interest that subdivision Lots would be adversely impacted by adoption ofthe 1990 Ordinance. The 1990 Zoning Ordinance ("1990 Ordinance") specifically repealed all prior zoning ordinances in effect prior thereto, including but not limited to the 1984 Code of Frederick County. Pursuant to the germs of the 1990 Ordinance, the real property owned by HVO within the Subdivision (the "Property's is located in a RA Rural Areas Zoning District. 12. The approval of the Subdivision Plats constitutes a significant affirmative governmental act, of which HVO is a beneficiary. HVO relied in good faith on the duly recorded, and legally approved, Subdivision Plats_ HVO and its predecessors in interest have incurred extensive obligations and substantial expenses in diligent pursuit of the development of the real property located within the Subdivision_ 13. HVO also relied in good faith on Davenport's oral representations to HVO that its continued development of the Property in accordance with the Subdivision Plats was acceptable and was not inconsistent with policies, regulations and ordinances of the County. 14 Upon information and belief; Davenport has approved other plats related to tracts of land and lots with circumstances similar in all material respects as HVO's circumstances. 15. At all times relevant hereto, HVO has relied upon the duly recorded Subdivision Plats, the representations of Davenport, and prior actions of Davenport regarding similarly situated lots - 4 65E-� ql0/100 d EYE -1 150VZZ10YS+ A311S V NOSMYI-WDJ� YO:II EDGZ-80-80 16 HVO obtained vested rights in the Property and Subdivision and complied fully with all laws and ordinances at the time of approval by Frederick County. HV O's rights, which became vested in 1962, cannot lawfully be affected by any subsequent ordinances. IT The use of the Property established on or about September 10, 1962- has remained consistent since the recording of the Subdivision Plats, and the use has not been discontinued for a period in excess of two (2) years or otherwise_ 18. HVO's current use ofthe Property was a lawful use existing on the effective date of the 1990 Ordinance. and the effective date of all other zoning ordinance amendments from September 10, 1962 to the present. 19. On July 11, 2003, Davenport indicated that setback requirements as enumerated in § 165-55, Frederick County Code, are applicable to lots in the Subdivision. See, "Exhibit C" which is attached hereto and incorporated herein by reference. 20. Section 165-55 (A), Frederick County Code, provides that setbacks fortraditional five (5) acre lots should measure sixty feet (60) from the property line, or right of Way of the street. road, or ingress/egress easement, and measure fifty feet (50') from the side and rear property Iines where the adjoining Iand use is vacant, or residential, or measured one hundred feet (100') from the side and rear property lines where the adjoining land use is agricnitoral (non -orchard). 5 65E -d #10/800'd EVE -1 15DVzzIOV5+ M311S 1 NosMbl-waif V0:21 EOOZ-8o-80 21. None of the Subdivision lots have an area of five (5) acres, and a substantial number of the lots in the Subdivision have lots widths measured at one hundred feet (100') or less_ 22. Applying the 1990 Ordinance to the Subdivision lots, or any ordinance enacted after the approval of the lots referred to in this pleading, is unlawful and leads to an absurd result_ 23. If the 1990 Ordinance is applied to the lots in the Subdivision, all of the Subdivision lots either are not "buildable" lots, or have buildable areas that are of such a nominal size as to effectively render them non -buildable lots. 24_ Davenport has taken the position that he will not authorize the issuance of building permits or other permits or licensure necessary to complete development because the lots do not comply with the requirements of the 1990 Ordinance. Such a refusal to authorize the issuance of bui ldingperm.its and otherpennits or licensure necessary to complete development is an antagonistic assertion and a denial of HVO's vested rights in the Property_ 25. The actions of Davenport and the County in refusing to authorize the issuance of building permits and other permits or licensure necessary to complete development is unwarranted, arbitrary and capricious, and contrary to law_ Said actions are an unreasonable and unlawful exercise of government authority, which bear no substantial relationship to the public hearth, safety, morals or general welfare. Such confiscatory actions deprive HVO of all economic,. beneficial, or productive use ofthe property_ Davenport's and the County's confiscatory actions are tantamount to a complete government taking depriving HVO oftheir property for public purposes without just 65E -d V1O/600"d EVE -1 1S0VZZI0V5+ x311S 1 WOSMYI-W01d V0:11 EOOZ-80-80 compensation therefore in violation of Art I, §11, Constitution of Virginia, 1971. 26. In the alternative. Davenport's and the County's confiscatory actions have damaged HVO'S property without just compensation in violation of Art I, §11, Constitution of Virginia. 27- HVO is the owner of real property within and adjacent to the Subdivision and more Particularly described in the Deed which is attached hereto and incorporated herein by reference as ' xhibit D". 28. Without the declaratory relief of this Honorable Court as to the effect of the 1990 Ordinance, HVO would be required to expend additional sums of money without relief from uncertainty associated with the continued controversy. 29. An actual justiciable controversy exists between the parties, and the Complainant has a justiciable interest in the resolution of the controversy_ COUNT ONE - DECLARATORY JT,TDGIffi'NT ESTED RIGHTS 30- The allegations set forth in paragraphs 1 - 29 above are incorporated herein by reference as if set forth herein in their entirety. 3 I _ HVO possesses vested rights in the property as defined in § 15.2-2307. Code of Virginia, 1950 as amended, and at common law which cannot be impaired by the confiscatory action. 7 65E-� V10/010 d EVE -1 1SOVZZLOVS+ M311S T NOSINVI-WD1� V0:21 EOOZ-80-00 32. The determination of the existence of HVO 's vested rights in the Property presents an actual justiciable controversy between the parties, and HVO has a justiciable interest in the resolution of the controversy. COUNT TWO _ ftqyEgSE CONDEMNATION 33. The allegations set forth in paragraphs 1 through 32 above are incorporated herein by reference as if set forth herein in their entirety. 34. The actions ofDavenport and the County constitute an unlawful tatting ora damaging Of HVO's property in violation of Art. I, § 11, Constitution of Virginia, 1971 _ At all times relevant hereto, Davenport was acting under color of government authority in performing his actions as a government official for the County which are at issue herein. 35. HVO has received no compensation for the aforesaid damaging or tang of the Property in violation of Art_ I, § 11, Constitution of Virginia, I971. 36. A contract should be implied between HVO and the County for just compensation which HVO would have been awarded had the property been condemned pursuant to §15.2-1900. et. sea.. Code of Virginia, 1950 as amended. 37_ " The unlawful actions of Davenport and the County have inflicted substantial monetary loss and injury on HVO. HVO's damages include but are not limited to the value of the lots, engineer fees, attorney's fees, costs and expenses associated with delay and other fees and other 8 p�c_J tin/lin 4 E'FE-1 IS"V?? 9tF-6 _ ,. ---- -- -- costs. HVO's damages will continue to accumulate until such time as HVO is justly compensated for the unlawful taking and damages inflicted. WHEREFORE High View One. LLC, prays that this Honorable Court enter judgment in its favor and award the following_ A Declare the existence of -High View One, LLC's vested rights in the Property Pursuant to §15-2-2307, Code of Virginia, 1950 as amended; B. Declare that the confiscatory actions of the Zoning and Subdivision Administrator in refusing to authorize the issuance of building permits, and other permits or Licensure necessary to complete development of the Subdivision are illegal, unwarranted, arbitrary and capricious, and in violation of High View One, LLC's vested rights in the Property; C- Declare that the Defendants be required to issue b7 Gilding permits, and provide such other Licensure as may be necessary to facilitate the completion of development of the Subdivision; D. Declare that High View One, LLC has been deprived ofits property resulting in a taking by the government for public use in violation of Art I, §11, Constitution of Virginia, 1971, without just compensation therefore; 0 65E-� V10/Z10 d ESE -1 iSOMIlays+ A311S W NOSIAVI-Woj� 5011 EGBZ-80-80 E. Determine that a contract should be implied between the parties and award damages in the amount that HVO would have been awarded had the property been condemned pursuant to §15-2-1900 et seg-, Code of Virginia, 1950 as amended, with pre- and post -judgment interest, its attorney's fees and costs expended, F. Award High View One, LLC`s damages including engineering fees, lost Profits, additional fees, costs and expenses associated with delay created by the acts alleged. and other fees and costs related to the development of the Property; G. Award High View One, LLC's reasonable attorney's fees and costs incurred in Preparing and prosecuting this action; and H- Award the Complainant such other injunctive, consequential, or other relief as may be necessary and proper for this Court to provide complete justice in this matter. High View One, LLC, reserves the right to seek any additional relief, assert any additional causes of action or claims, assert any additional alternative administrative remedies, join any additional paities as may be warranted based upon responsive pleadings or discovery responses served herein, or as may other<yise be discovered in the course of this action_ [H 85E-� fil0/ElO d EVE -1 ISOVzz101.5+ X311S W WOSMdI-Wai� 5011 E002-80-80 Ann K Crenshaw, Esquire Virginia Bar No. 19538 Todd D. Bunn, Esquire Virginia Bar No. 27546 Lawson and Silek, P_L.C. P.O. Box 2740 W-mchester, VA 22604 (540) 665-0050 Counsel for High View One, LLC 11 Respectfully submitted, HIGH VIEW Off, LLC By Counsel 65E -d k10/til0'd EVE -1 ISDVZZ10b5+ X311S T P10SMd1-moil 50:11 EOOZ-80-80 C '\ S a� N / c9 r'), '? fn LJ 3 t()\� USE 1 0 COURT SO, O EmDG. 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TO DEED j HIGH ti=ts MANOR, INC . THIS DEED, made this 27th day of June, 1959, between Mahlon B. 0 Na and Hilda B. Marcus, his wife, and Walter Peyton, Jr., single, of the one ii part, hereinafter called the Grantors, and High View Manor, Inc., a Delaware Corp - ,,oration, of the other part, hereinafter called the Grantee. ITITNESSETH: That for and in consideration of the sum of Ten Dollars cash in hand paid and other valuable consideration, receipt whereof is 'I hereby acknowledged, the Grantors do grant and convey, with General Warranty of Title, !•unto the Grantee, in fee simple, together with all rights, privileges and appur- ?tenances thereto belonging, all the following seven tracts of land situate near Mt.' Williams, in Frederick County, Virginia, and being more particularly described as e P follows: TRACT NO. ONE: All that certain tract of land situate approximately i Anne miles I -Test of Winchester near the Wardensville Grade, containing 4 3/4 acres, i; rmore or less, and being more particularly described as Tract No. 1 in that certain i. deed from H. E. Fauver, et ux to Beverley Grim, dated June 19, 1947 and recorded in Lthe Clerk's Office of the Circuit Court of Frederick County, Virginia in Deed Book 1.200, at page 522. is I TRACT NO. TWO: All that certain tract of land lying and being situate in Rack Creek Magisterial District, Frederick County, Virginia, containing 3 acres, more or less, and being the same property described as Tract No. 3 in said:; deed to Beverley Grim from H. E. Fauver, et ux. TRACT NO. THREE: All that certain tract of land lying and being situate in Back Creek Magisterial District, Frederick County, Virginia, containing 140 acres, 1 rood and 12 poles, more or less, and being the same realty described as Tract No. 4 La said deed to Beverley Grim from H. E. Fauver, et ux. TRACT NO. FOUR: All that certain tract of land lying and being situate in Back Creek Magisterial District, Frederick, County, Virginia, containing 60 acres, more or less, and being the same realty described as Tract No. 5 in said deed to Beverley Grim from H. E. Fauver, et ux. TRACT NO. FIVE: All that certain tract of land lying and being situate in Back Creek Magisterial District, Frederick County, Virginia along the Wardensville Grade, containing 20 -acres, more or less, LESS 2 acres, more or less, ;;conveyed by the said Beverley Grim, et ux to Garland F. Vincent, et ux, by deed dated 11 tiiay 27, 1949 and recorded in the said Clerk's Office in Deed Book 216, at page 128, �I Viand being a portion of the realty described as Tract No. 6 in said deed to Beverley t iiGrim from H. E. Fauver, et ux. i. i TRACT NO. S1.: A one-half undivided interest in all that certain if ':tract of land containing 10 acres, more or less, situate in Back Creek Magisterial i:District, Frederick County, Virginia one mile from Mt. Williams, adjoining the C. A. r. i:McIlwee Estate, Isaac Lamp and others, LESS 3 acres, more or less, conveyed by Beverley I. ;;Grim, et ux, to Francis M. Bayliss, by deed dated April 1.2, 1954 and recorded in said Clerk's Office in Deed Book 231, at page 315, and being a portion of the realty, ;conveyed to Beverley Grim by deed of H. E. Fauver, dated June 19, 1.947 and recorded r ,j „„ ...,;a ,,, T10 3 TI I, at _, 9F. nnrl hpinr, t.hp camp rpa.lty 6 .. ,ua, dated November 16, 1957 and recorded in said Clerk's Office in Deed Book 255, Ifat page 235. TRACT N0. SEVEN: All that certain lot of land situate near Mt. ;;Williams, in Back Creek Magisterial District, Frederick County, Virginia, being triangular in shape, fronting on the Western side of Virginia Secondary Highway No.4 608 a distance of 750 feet, and running in a Westernly direction contiguous on the ' v- ,North to Marcus 145 feet, the Western boundary of said lot being a line joining they �Isouthern boundary of same on Virginia Secondary Highway No. 608, and the Western i; end of the Northern boundary of same in the line of Marcus, containing 1 acre and - rods more or less beim bounded on the West by Williams, on the North i >9 square g d by I..'Lrous and on the Fast by Virginia Secondary Highway 608; and being a same to i realty conveyed to Mahlon B. Marcus and 'Walter Peyton, Jr. by deed of Beverley Grim;, I �et ded in said Clerk's Office in Deed Book 2551 ux, dated December 10, 1957 and recor at page 236. r This conveyance is made subject to the easements of record, if any ;i I' affecting the aforesaid realty. I'. The Grantors covenant that they have the right.to convey said realty to the Grantee; that the Grantee shall have quiet possession thereof, free from all a, encumbrances; that they have done no act to encumber laid realty, and that they will ii execute such further assurances thereof as may be requisite. .; WI`rNESS the following signatures and seals: MAHLON B.—MARCUS (SEAL) Pz•vMFUE STAMPS(SEAL) B MARCUS )SEL) jS,1265 Y CANC ":tom WALTER PEYTON JR. (SF -AL) 1: State of Virginia, County of Frederica, to -wit: I, Nancy B. Messall, a Notary Public of and for the State and County h aforesaid, do certify that Mahlon B. Marcus and Hilda B. Marcus, his wife, whose mamas are signed to the foregoing instrument, bearing date on the 27th day of June, X959, have acknowledged the same before me in my State and County aforesaid. e Given under my hand this 27th day of June, 1959. N;y commission expires 10/31/59. NANC-1f B .MESSALL o ary is State of Virginia, County of Frederick, to -crit: I, Nancy B. Messall, a Notary Public of and for the State and County aforesaid, do certify that Walter Peyton, Jr., whose name is signed to the foregoing instrument, bearing date on the 27th day of June, 1959, has acknowledged the same before ma in my State and County aforesaid. Given under my hand this 27th day of June, 1959. My commission expires 10/j1/59 - NANCY B. MESSALL ary c o )VIRGINIA H IT,EDJ7,-RICK COUNTY, {SCT. This instrument of writing was produced to me on the 2nd day of r :July 19 at 9:35 A. 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