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BZA 09-30-03 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on September 30, 2003. (Note: The regular meeting scheduled for September 16, 2003 was rescheduled to September 30, 2003 due to member vacations.) PRESENT James Larrick, Jr., Chairman, Gainesboro District; Thomas Malcolm, Shawnee District; Dudley Rinker, Back Creek District; Lennie Mather, Red Bud District; Robert Perry, Stonewall District; Theresa Catlett, Vice Chairman, Opequon District; and, Robert W. Wells, Member -At- Large. STAFF PRESENT Patrick T. Davenport, Zoning and Subdivision Administrator; Rebecca A. Ragsdale, Planner I; Bev Dellinger, BZA Secretary CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. AUGUST 19, 2003 MINUTES On a motion by Mr. Rinker and seconded by Mr. Perry, the minutes for the August 19, 2003 minutes were approved as presented. PUBLIC HEARING Appeal Application 410 -03 of James R. Richards, presented by Stephen L. Pettler, Jr., Esquire, to appeal a violation 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. ACTION - APPEAL DENIED AND DECISION OF ZONING ADMINISTRATOR AFFIRMED Patrick T. Davenport, Zoning and Subdivision Administrator, gave the background information. He told the Board that the Department had 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 zoning 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 that is not allowed in the Rural Area Zoning District. Mr. Richards was fined and advised by the Court to abate this violation. The zoning violation was not abated and staff, once again, began receiving complaints of the same nature in January 2003. These complaints were found to be valid, as tractor - trailer truck Frederick Co. Board of Zoning Appeals Minutes of September 30, 20 Q Minute Book Page 1204 Page 2 parking and repair activities were confirmed by staff to be occurring on the subject property. A criminal complaint was filed and the property owner was brought back to Court because the violation was never abated. Due to the failure to correctly notify the property owner prior to the Court action, the case was dismissed on June 3, 2003. In response to complaints received in June 2003, the Planning Department did investigate trucking activities on 224 View West Lane. Located on this property is a shop building and a dwelling where tenants are apparently residing. Immediately adjoining 224 View West Lane is 178 View West Lane, which is owned by the applicant and where he resides. Staff confirmed tractor - trailer parking, including two to three trucks and trailers, and repair activities, occurring on the property at 224 View West Lane. Trucking businesses are not allowed in the Rural Area Zoning District, nor do trucking activities carved on by the applicant meet the definition of a home occupation. A notice of violation was sent to the property owners on July 9, 2003. This notice specified that tractor - trailer parking and repair activities are not allowed in the Rural Areas Zoning District and, also, that the criteria of a home occupation was not being met. This trucking business was not carried on by persons residing on that premises, and who were the proper owners, There were external indications of the trucking business and the activities occurring adversely affect surrounding properties. In the appeal application, the applicant acknowledges that he parks and repairs trucks on the property at 224 View West Lane. The applicant also indicated that tenants are presently occupying the building on that property. These tenants, however, do not appear to be related to the trucking business activities at 224 View West Lane; they are not the owners of the trucks parked on that property. Therefore, the truck repair and parking activities are not a permitted use in the Rural Areas Zoning District. Mr. Davenport presented several slides of the subject property, and an aerial photo taken in March 2001, showing tractor - trailers parked in the subject area. Chairman Larrick asked when the first violation was cited in 1997, what was done to put some teeth into that violation. Mr. Davenport responded that not much has happened. Chairman Larrick asked if they came before this Board and Mr. Davenport stated, to his knowledge, they did not. Mr. Davenport stated that his belief is that it was temporarily abated, the case was closed and then it reoccurred and started over again. Chairman Larrick asked if the definition of a home occupation came out of our ordinances and Mr. Davenport replied yes, that's in our zoning ordinance. Mr. Davenport added that we would not allow this type of business as a home occupation. Chairman Larrick asked if it was only trucks owned by the owner of the property, and he wanted to work only on his truck, would it be allowed? Mr. Davenport stated that typically, we have allowed, for someone living in the Rural Areas Zoning District, if they're a trucker, to have one truck to drive home, but repair activities of multiple trucks would for a zoning violation. Vice Chairman Catlett asked how the 2002 violation arose. Mr. Davenport stated it arose through continued complaints that the Department received. Mr. Rinker stated that the property is listed as Kerns, but Mr. Richards is the one being cited. Mr. Davenport responded that to the best of his knowledge, Mr. Richards owns both of the Frederick Co. Board of Zonin Appeals Minute Book Page 1205MinutesofSeptember30, 20 Page 3 properties. Mr. Davenport noted that someone had submitted some information they would like to be distributed and it is on the podium for them to distribute when they speak. Chairman Larrick asked if anyone wanted to speak in favor of the appeal, to please come forward. Steve Pettler, Esquire, with the firm of Harrison and Johnson, came forward on behalf of the Richards. Mr. Pettler stated that both pieces of property identified by Mr. Davenport are owned by Mr. Richards, Patrick Kerns and Helen Richards, Mr. Richard's mother, as tenants -in- common. Since 1996, Patrick Kerns resided, off and on because he is a trucker, at 224 View West Lane and parked his truck on this property. Mr. Pettler stated that may be the violation that is referenced in 1997. Mr. Richards didn't have any ownership interests in the property until August 2002. Mr. Pettler further stated that Mr. Richards does not operate a trucking business on the property and that is what they are here for today. The determination made in the July 9, 2003 letter, from the Planning and Zoning staff, indicates that there is a trucking business being operated by either Mr. Kerns or Mr. Richards, it is not clear. Mr. Richards runs a truck for RAC Trucking out of Gainesboro. He meets his supervisor on the road where they then dispatch where they are going to go that day. He has a dump truck for hauling, and he is dispatched, does all the business off -site and brings his truck back home when he's not running. The same goes for Mr. Kerns. Mr. Pettler further stated that the suggestion they are running some sort of repair business on the property is also not the case. Mr. Richards is a mechanic and can do work on his truck when he needs to do it, on the property. Mr. Kerns also does work on his truck on the property. Mr. Pettler pointed out that both of them own both parcels; they are both owned by Mr. Richards, Mr. Kerns and Mr. Richards mother. The determination that has been made is there is a trucking business that is being run, and that is not the case. There has been some suggestion that the Court matter in November 2002 made some kind of adjudication of the fact that there was a trucking business operating on the property. That was in fact General District Court, and Judge Whitacre did fine Mr. Richards $25.00. That was after a lot of deliberation and what he said was, "Mr. Richards, just comply with what the Planning Staff tells you ". The Planning Staff, in the person of Mr. Davenport, was contacted by Mr. Kerns and Mr. Richards asking what could they do. Mr. Davenport told them what he told you today, that they can each park one unit on their property when they come home. Ever since November 2002 they have made sure that they weren't ever both on the same lot. The second time this came up, in January 2003, Mr. Pettler represented Mr. Richards and the matter was dismissed out of hand by Judge Whitacre. This is all the result of one particular neighbor who lives down at the end of the road and doesn't like the trucks going up and down the road. She has made a concerted effort to bring this to the attention of staff over and over again, to Mr. Pettler's clients and has caused a lot of strife. Mr. Pettler stated that the letter that was left on the podium by Mr. Davenport is from one of the neighbors, Mrs. Jenkins, who couldn't be here because she drives a bus. She lives closest to the Richards and she's written a letter that she has no complaints and never had any trouble with the Richards whatsoever. Mr. Pettler stated again that we're here on the determination of whether or not there is a trucking business in violation of the RA Zoning Ordinance for permitted use on this property, and I submit to you that simply driving your truck home at night and doing work on it, because you can - it's your property, is not a trucking business. Mr. Frederick Co. Board of Zoning Appeals Minute Book Pa e 1206MinutesofSeptember30, 20(J3 g Page 4 Pettler urged the Board to come down in favor of the Richards and overrule the determination made by staff. Chairman Larrick stated there seems to be two issues going on: one is whether or not there is actually a business being run, where someone is paying money for some service; but then a second issue is the number of vehicles on the property could constitute a violation. Mr. Davenport stated they are one and the same. More than one vehicle would constitute an illegal land use. Staff has allowed for one person to bring one truck home to their property and it is staff's determination that more than one truck has been brought to that property and been worked on. Mr. Tom Dawe came to the podium. He stated that he lives on Lot 11, Welltown and View West Lane. Mr. Dawe stated that very seldom does he hear the trucks come and go, he may see them when he's outside. He does not have noise complaints, and he does not see the Richards creating any problems, and he would be the one to complain because they have to drive through his land to get to theirs. Mr. Dawe has no problems with the activities there. Chairman Larrick asked Mr. Dawe if he remembered any occasion when there were more than two tractor - trailers on their property. Mr. Dawe responded he was not sure. He could remember physically viewing three tractor - trailers hooked up as one unit. He stated that two is what he usually sees. Chairman Larrick asked if there was anyone else who wanted to speak for the appeal and there was no response, so he asked if anyone wanted to speak against the application. Mrs. Pamela Payne approached the podium as the spokesperson for the subdivision, and stated she resides at 358 View West. Mrs. Payne said this action is in total violation of not only the County ordinance, but the Deed to the property that he owns. Mrs. Payne stated that the tractor - trailers that have been parked and worked on at the lot in question has been an on -going problem since 1997. It is loud, it is a nuisance, it is destructive and it is a violation. Mrs. Payne spoke at great length against the appeal, citing noise and trash. The activities are not restricted to just Mr. Richards' and Mr. Kerns' trucks; they work on regular vehicles, parts of vehicles and race cars. The edges of the paved road have been eaten away by the rigs cutting across the pavement. This project was expensive and it took a long time to pay for. They have held three neighborhood meetings regarding this problem. Mr. Richards and Mr. Kerns did not attend any of them. Many items have been found left on the road, and Mrs. Payne has some of these items with her today: pieces of metal, tubing, nuts, bolts, glass, nails, cigarettes. Mrs. Payne used to walk the length of the driveway every day after putting her daughter on the bus, but she stopped because there was a paving company that was there also. The paving company would leave in the morning. This activity went on for three to four months in the Fall of 2002. Mrs. Payne presented a video displaying some of these activities. Mrs. Payne stated that the next problem is the shop. It's being used as a residence. Mrs. Payne said she had a folder for each Board member in which she placed a copy of the Deed. The Deed has now been transferred as a gift to Mr. Richards, which she just discovered on September 23'. The tax records in the Treasurer's Frederick Co. Board of Zoning Appeals Minute Book Page 1207MinutesofSeptember30, 20113 g Page 5 Office indicate that this property is owned by Mr. Richards and Mr. Kerns. It also indicates that the building in question is taxed as two shops. The property meets none of the restrictions of the Deed, the tax papers indicate no water or sewer. Mrs. Payne asked the Board to consider this appeal carefully. If this had been taken care of six years ago, the property value would be untouched, the road wouldn't be damaged, tax payers money wouldn't have been wasted, personal feelings would not have been aroused. Mrs. Payne handed out the documents she had for the Board members. Vice Chairman Larrick asked Mrs. Payne, in the last 30 to 60 days, how many actual tractor - trailers or dump trucks, had she seen on a regular basis. Mrs. Payne responded at least three. On occasions, on the weekends, from Friday night through Sunday, they work on them. It can be as many as five or six or more. Mrs. Payne said the activity had calmed down since this appeal started. Chairman Larrick asked Mrs. Payne if she had any knowledge, of her own or first -hand, of anyone that has actually hired them to do work repairing vehicles, where money has changed hands. Mrs. Payne stated that she would not even begin to guess that. Mr. Gary Payne, Mrs. Pam Payne's husband, approached the podium. Mr. Payne stated that there are approximately seven more lots in the subdivision that will eventually be for sale at some point. The trucking business does hurt the property values. Mr. Rinker asked Mr. Payne how it was decided who would pay for the maintenance on the road. Mr. Payne stated there is no Homeowners Association. The bulk of the road that was asphalted came out of Mr. Payne's pocket, his father's pocket and his brother's pocket. The other owners that were there at the time chipped in what they could, but the biggest part came out from the Paynes. Mr. Payne and his brother have been removing snow for the last 25 years. Mr. Rinker asked who was going to pay for the damage that has been done to the road. Mr. Payne responded that at this point in time, if the trucks are allowed to stay, it's going to be paid by somebody else. Chairman Larrick stated that the applicant, through his attorney, indicated that the only truck repair work that is done there is either done on Mr. Kern's or Mr. Richards' vehicle. He asked Mr. Payne if he had ever seen any trucks there that he knows who the driver is or is not a vehicle belonging to one of those two individuals. Mr. Payne responded that he did not, but he knew there have been more than two trucks. They worked on paving equipment and that equipment was there for two or three months. They work on all types of pickups and trucks. Mr. Jim Stonestreet approached the podium and initially spoke for Mr. Richards He resides at 205 View West Lane. However, when the first of the neighborhood meetings was held, Mr. Stonestreet went to the Payne house and there was a pothole that was 6' x 8', maybe 8' x 10', maybe 10' x 12', right at the edge where obviously the trucks go in and out. The issue that really bothers Mr. Stonestreet is the number of trucks. What the neighbors do directly affects the value of his lot, should he have to sell it. Mr. O. L. Payne approached the podium. He has owned property in View West Subdivision for 28 years. Mr. Payne stated that those trucks are absolutely ruining everything and it's Frederick Co. Board of Zoning Appeals Minute Book Page 1208MinutesofSeptember30, 20tfS 8 Page 6 is not a family business. They are absolutely operating a trucking business there. Chairman Larrick asked Mr. Payne if he had any proof that someone actually is paying money to have repair work done on that property. Mr. Payne responded that if he took a truck there, they'd take his money. But he does not have any proof. He's just saying what he believes to be 100% right. Mr. Charles DeHaven approached the podium. Mr. DeHaven stated there has been, he believes, a chronic and long- standing attempt to circumvent the intent and the uniform enforcement of our ordinance. Mr. DeHaven encouraged the Board members to uphold the Zoning Administrator's determination. Mr. Davenport presented more slides of the subject property taken January 2003, April 2003, and one taken yesterday. Mr. Wells asked Mr. Davenport if he had seen more than the one or trucks being parked there and worked on. Mr. Davenport responded affirmatively. Chairman Larrick asked if the Board upholds Mr. Davenport's decision and rej ects the appeal, will Mr. Richards still legally be capable of having two trucks on the two parcels of land. Mr. Davenport responded one vehicle per parcel, and since one person owns both parcels, that doesn't mean two vehicles could go to one parcel - one vehicle on each parcel. Mr. Pellett came to the podium and stated that he takes issue with any sort of insinuations that there is any sort of wrongdoing being done. Mr. Pellett stated that all they are asking for is that the status quo be maintained. They need to take their trucks back to their house so that they can work on them there. They would like to continue to be able to do so. The race car is Mr. Richards and it is not raced for profit. The violation is that they're running a business in a Rural Areas, which is not an allowed use. That's what they're here to determine today. Their position is there is no business being run there, both parcels are residences and parking the trucks there is the proper use. Mr. Wells asked Mr. Pellett if he had any knowledge of friends coming over and bringing trucks to work on or whether money is changing hands. Mr. Pellett stated that his direct knowledge is the situation is more along the lines of his friends are coming over and helping him work on his trucks. Mr. Wells asked if Mr. Richards is an independent driver, has his own company, or does he drive for someone else. Mr. Pellett replied that Mr. Richards owns his truck and gets paid as an independent contractor. Mr. Malcolm asked Mr. Pettler if he was saying unequivocally that there is no business, meaning there is no transaction for money there, and that is his position for his client. Mr. Pettler replied yes sir, absolutely. Mr. Malcolm asked if it is your position and you admit that in the last 12 months, there may have been more than two vehicles, three or more, at any one given time. Mr. Pettler replied yes sir. Do you acknowledge on behalf of your client that there have been at least three or more over the last 12 months at any one given time. Mr. Pettler stated that he believes that is correct. Frederick Co. Board of Zoning Appeals Minutes of September 30, 20US Minute Book Page 1209 Page 7 Chairman Larrick closed the open portion of the hearing. Mr. Davenport asked to clear up a policy statement concerning allowed uses and the ability of someone to bring home a tractor - trailer. He may have mentioned that we would look at permitting one vehicle per property, and he meant to say one vehicle per residence. That would mean if you have a vacant piece of lot with just a garage or a non - residential structure on it, that would not be permitted. We would allow someone to bring their truck home to their residence at the place where they reside and own that property, one vehicle. DISCUSSION Mr. Perry stated that what we're down to now is, there's only going to be one vehicle allowed on the parcel that contains the residence, not the shop. Mr. Davenport responded yes sir. The parcel that these activities are occurring on, it would appear, may not even be a legal residential use. Mr. Perry said that even if there was somebody living there, that wouldn't pertain because the condition of a home occupation is: "....Carried on by members of the household residing on the premises ". Mr. Davenport responded that is exactly right. Mr. Perry said even if there were someone living in that shop, they don't own the vehicle. Mr. Davenport responded it would have to be the persons' truck that is residing there. Mr. Malcolm made a motion to deny the appeal and affirm the decision made by the Zoning Administrator. Mr. Perry seconded the motion, which passed by majority vote. BE IT RESOLVED, THEREFORE, That Appeal Application #10 -03, presented by Stephen L. Pettler, Jr., Esquire, on behalf of James R. Richards, to appeal a violation 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 is hereby denied and the decision of the Zoning Administrator affirmed. This property is located at 224 View West Lane, and is identified with Property Identification Number 43 -7 -10A in the Stonewall Magisterial District. Variance Application #11 -03 of HighVtew i71 "C, 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. ACTION VARIANCE REQUEST DENIED Frederick Co. Board of Zoning Appeals Minutes of September 30, 20 (13 Minute Book Page 1210 Page 8 Mr. Davenport gave the background information. Mr. Davenport stated that this is a request for a variance of the Rural Areas Zoning District setback requirements. The plats for this subdivision, known as "High View Manor ", were originally approved on September 10, 1962. The recorded plats illustrate front setback lines at 30' and 20'. However, no setback lines were illustrated on these plats for the sides and rear property lines. The current Rural Areas Zoning District setback requirements are 50' on the side and rear property lines if the adjoining use is residential and 100' if the if the property adjoins agricultural uses. 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 we have on the books today. There are 126 parcels associated with this variance request. The average lot size of all but three of the parcels are about one third of an acre (0.33). Staff inspection revealed that six dwellings have been constructed in this subdivision since it was developed and the roads platted to serve these lots have been constructed to minimal standards. Some of the roads that may be illustrated on the plats do not really exist at all or they might just be in the form of a trail. There are three additional parcels associated with these requests which are identified by tax map 50, section A, parcel 27, which is 92 acres; tax map 50, section A, parcel 25, which is approximately 175 acres; and, tax map 60, section A, parcel 44, containing about seven acres. These parcels would contain areas which would allow for a single - family dwelling without this variance. The applicant did not submit septic drain field locations for the parcels associated with this variance request. However, it is Frederick County's policy that we do not have limitations regarding drain field easements and it is reasonable to presume that some of these lots may be consolidated or the drain fields could be situated on these larger tracts, which will be according to the soil characteristics on that property. That is why the drain field locations for all these being that they own so many parcels.applicant did not submit parcels The Frederick County Comprehensive Policy Plan and the Subdivision Ordinance discourages serving parcels outside future rural community centers located in the Rural Area Zoning District with sanitary sewer systems. Therefore, prior to the issuance of a building permit for any lot in this subdivision, approval by the Health Department for appropriate onsite sewage disposal would be required. High View One, LLC, has recently filed a lawsuit against Frederick County seeking declaratory judgment due to a decision made by the Subdivision Administrator regarding this subdivision. This arose from the applicant submitting a boundary line adjustment and lot consolidation plats for these parcels, which generally increased the lot size, and one of the review comments was to provide the appropriate setback lines on these redrawn parcels in accordance with the subdivision ordinance. Unless the revisions are made to the zoning ordinance, the Frederick County Zoning Administrator will maintain that these 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. When you apply the existing side and rear setbacks to these parcels, with the exception of the specified parcels mentioned earlier, obviously no buildable area exists. Other properties throughout the RA Zoning District do have the same setback requirements when the adjoining uses are similar, but in this instance, strict application of the ordinance produces an undue hardship on these parcels associated with the variance, and given the circumstances of our existing regulations, the granting of this variance would be appropriate with the exception of the specified three aforementioned parcels. Mr. Perry asked Mr. Davenport how the Board could award a variance for this number of lots. Mr. Perry stated it would appear, from past experience, that the Board has awarded variances based on a single lot and not as a whole subdivision. Mr. Davenport responded that Staff consulted Frederick Co. Board of Zoning Appeals Minute Book Pa e 1211MinutesofSeptember30, 20(33 g Page 9 with the County Attorney and came to the decision that in lieu of bringing 126 separate applications to the Board, that it would be appropriate to handle this as one variance application. Mr. Perry stated that, looking at the three specified lots, it doesn't appear that they need a 40' side variance. He further stated that he would be uncomfortable in allowing, hypothetically, a builder on those lots to put two residences on there that happen to be 20' apart. Mr. Perry further stated that he is concerned about possibly setting a precedent on granting an amount of a variance on those three lots that's not necessary. Mr. Davenport agreed and stated that in our past variances we have been looking really closely at where they're going to be situating their houses and those were associated with where the drain field would be. This is a very unique request and due to the number of lots that are involved in this, we were looking for some type of uniformity as a variance trying to correct the subdivision in its entirety. With our drain field requirements, they would be able to have drain field easements onto other parcels if the soil characteristics determine that. Mr. Perry asked Mr. Davenport if he felt the problem is covered by the drain field requirement and Mr. Davenport responded affirmatively. Chairman Larrick asked if anyone was present to speak in favor of the requested variance. Mr. Ty Lawson, Esquire, approached the podium on behalf of the applicants. Mr. Lawson asked the Board members if they had the plat that shows the imposition of the building restrictions and the plat that depicts the RP setback, which they did. Mr. Lawson emphasized for the purposes of the record that they have filed a lawsuit that goes back to the imposition of any setbacks on lots that were grandfathered or vested, and that, generally, is the crux of the their lawsuit. For the purposes of the record, they want to reserve all the rights that they have claimed under that lawsuit and they recognize that this is an attempt to avoid that lawsuit and go forward with a compromise -type decision. Mr. Lawson pointed out that there are existing homes within this development. It is an existing development and the current owners bought this with that understanding. As they proceeded, they were told they did not have buildable lots as a result of the setbacks. The document that's recorded in the land records, not only does it have front setbacks of 20' and 30', which the County recognizes, it also makes reference in the Covenants to setbacks, which are 10' side and rear. What is being proposed here, as Mr. Lawson understands it, is a 10' side and 25' rear, so it's getting somewhat closer to what was in the land records and what was approved by Frederick County in 1962. It is intended to the extent it is possible to grow these lots through consolidation into more traditionally -sized lots. But unfortunately, because of the restrictions of roads, etc., there's only so far they can go. To address Mr. Perry's comments, they have looked into various configurations, combinations, consolidations of lots, and in imposing the RA setbacks, it simply doesn't work. They still end up with unbuildable lots. Chairman Larrick asked Mr. Lawson if they were requesting this for all the lots that they have ownership for. Mr. Lawson responded yes. Frederick Co. Board of Zonin Appeals Minutes of September 30, 20( Minute Book Page 1212 Page 10 Chairman Larrick asked if anyone was present to speak against the requested variance. Mrs. Sybille Craft approached the podium. She resides in High View Manor with her husband, Clyde. Mrs. Craft is concerned that if drip irrigation is put in, what would it do to the water table of Hogue Creek. Chairman Larrick responded that this is a Health Department issue and Mrs. Craft said she is aware of this. Mrs. Craft stated that the land will not perk and, also, that Route 608 would be unable to withstand the traffic. Mrs. Craft feels they really don't need all the homes that are planned. Chairman Larrick explained that, assuming the lots are not buildable, the Board has to come up with a solution that is fair but also recognizes their rights that each one of the lots are buildable, and that's where this Boards's hands are tied. Mr. Clyde Craft approached the podium. Mr. Craft has livestock and he's afraid if they set the variances right up against his fence, there's going to be trouble between the kids and the livestock. Mr. Dan Magaschak spoke as a resident of High View Manor. Mr. Magaschak is concerned about the number of houses planned to be built and, also, that there is only one way in and one way out of the development, right past his house. He would like to see this put on hold and see if they could come up with a better way to develop this instead of just approving all these lots. Ms. Donna Bredbenner approached the podium. She lives on Route 608. Ms. Bredbenner feels it is not doable to build homes on all these lots. The people who buy these lots, hoping they can build, are the people who are going to suffer the hardship. Mr. Jack Lynch, whose property adjoins High View Manor, stated that the land has to perk before you can build a house. Mr. Lynch would hate to see a subdivision come in. Mr. Lawson returned to the podium. The two owners of High View Manor are present today, and they actually intend to build their homes there and live there. Mr. Lawson stated that Chairman Larrick pointed out that they bought approved lots. This setback has been thrust upon them and they do reserve all the issues they have raised in their lawsuit, but they do commend the County for working with them on this issue and coming up with what they think is a compromise. Mr. Lawson asked that the Board grant the variance. Chairman Larrick closed the public comments portion of the hearing. DISCUSSION Mr. Perry stated that he understands the situation and he doesn't have any problem with granting variances to provide buildable lots, but he does have a problem with a blanket variance for 126 lots. 0 Frederick Co. Board of Zoning Appeals Minutes of September 30, 20U3 Minute Book Page 1213 Page 11 Vice Chairman Catlett said that she, too, has a problem with this. There was a great deal of discussion among the Board members, and Mr. Davenport, on issues regarding undue hardship and the precedence of a blanket variance. Chairman Larrick stated that a blanket response is a little bit of an over response, but he gathers from the Department that this is something that Frederick County is encouraging the Board to do as part of a compromise or some type of a settlement to the law suit. Mr. Davenport responded that only in the sense that we're considering these all at once instead of on an individual basis. Mr. Perry stated that he did not think we could justify that, each one of them has to stand on its own merit, just like all the others they listen to. Vice Chairman Catlett made a motion to approve the variance as requested, with the exception of those three specified parcels. Chairman Larrick asked for a second to the motion. None of the Board members responded and the motion died for lack of a second. Mr. Perry made a motion to deny the variance as requested. Ms. Mather seconded the motion and it passed by majority vote. BE IT RESOLVED, THEREFORE, that 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 is hereby denied as presented. OTHER BUSINESS As there were no other items to be discussed, the meeting adjourned at 5:55 p.m. by unanimous vote. Respectfully submitted, L James L rick, Jr., dairman Bev Dellinger, Secretary Frederick Co. Board of Zoning Appeals Minutes of September 30, 2003 Minute Book Page 1214