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BZA 04-20-04 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia April 20, 2004 3:25 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of January 20, 2004 PUBLIC HEARING 3) Variance Request #01-04 of Robert D. Brown, for a 35 -foot variance of the east side yard to enable an addition to the existing dwelling. This property is located at 678 Lake Serene Drive. The subject property is identified with Property Identification Number 3113-1 -18 in the Gainesboro Magisterial District. 4) Variance Request #02-04 of Valley Building Systems, Inc., for a 7.1 -foot front yard variance (along Clydesdale Drive) for an attached stairs, stoop and porch. This property is located in Canter Estates, Section 3, Phase 1, Lot 248, at the intersection of Clydesdale Drive and Lariat Court. The subject property is identified with Property Identification Number 7613-1-3-248 in the Shawnee Magisterial District. 5) Other There will be a Closed Session in Accordance with the Code of Virginia, 1950, as Amended, Section 2.2-3711, Subsection A, (1) and (7), to discuss legal issues. FILE COPY Bev Dellinger BZA Secretary 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 January 20, 2004. PRESENT: James Larrick, Jr., Chairman, Gainesboro 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; Mark Cheran, Planner I; and, Bev Dellinger, BZA Secretary CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. NOVEMBER 18, 2003 MINUTES: On a motion by Mr. Perry and seconded by Vice Chairman Catlett, the minutes for the November 18, 2003 minutes were approved as presented. Chairman Larrick asked the cut-off date for the next meeting and Mr. Davenport responded that Friday, January 23`d, is the cut-off. Mr. Davenport further stated that as of this date, there are no matters on the docket. Chairman Larrick stated that since this is the first meeting of the year, officers have to be elected for the Board. The officers are Chairman, Vice -Chairman and Secretary. The rules do not require that the Secretary be a member of the Board. Chairman Larrick asked for a motion on this matter. Mr. Perry made a motion that the present slate be re-elected. Mr. Wells seconded the motion and the vote was unanimous. Chairman Larrick announced that Mr. Malcolm resigned and is no longer on the Board. Also, for the Board's information, Chairman Larrick stated that this is his last year on the Board. His term runs out in December and he does not plan on coming back for a third term. PUBLIC HEARIN Appeal Application #13-03 of Hodgson Construction, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to permitted uses in the B3 zoning district. This property is located at 221 Commonwealth Court, and is identified with Property Identification Number 63 -A -91C in the Shawnee Magisterial District. ACTION - APPEAL DENIED, ZONING ADMINISTRATOR'S DECISION UPHELD Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1222 Page 2 Mark R. Cheran, Planner I, gave the background information. Mr. Cheran stated that this action is to appeal the decision of the Zoning Administrator concerning permitted uses in the B3 zoning district. The reason for the appeal is that the applicant contends that physical therapy, a chiropractic center, massage therapy, restaurant/snack bar and an outdoor soccer field are accessory uses to the sportsplex and fitness facility which is located at 221 Commonwealth Court in the Shawnee Magisterial District. This property is currently zoned B3 Industrial Transition District and the uses are an indoor sports complex, referred to as sportsplex. The adjoining property to the north is zoned M2 Industrial General and its land use is a dairy. The land west and south is also zoned B3 Industrial Transition and is currently vacant and undeveloped. The land to the east is Interstate 81 and does not have any zoning. Mr. Cheran further stated that staff had received a letter from the applicant seeking a determination of allowed accessory uses with the proposed indoor sports facility. An indoor sports facility is classified under Standard Industrial Classification code as Group 7999 Amusement Recreational Services. This is an allowed use in the B3 zoning district. The applicant submitted a site plan that was approved by staff on November 6, 2002. This site plan does not address any of the accessory uses that the applicant is appealing. Staff, in determining the uses in a zoning district, uses the Standard Industrial Classification (SIC) Manuel with the Frederick County zoning ordinance as it relates to commercial industrial districts. The uses that are being appealed are physical therapy, which is SIC code 8049 and under the SIC code is Offices and Clinics of Physical Therapy, which is Major Group 80 - Health Services. The health services in Frederick County are allowed in the B2 General Business District and the MS Medical Support District. The chiropractic center is SIC code 8041, which is Offices and Clinics of Chiropractors, and is also a Major Group 80 - Health Services. This is an allowed use in the B2 General Business District and the MS Medical Support District respectively. Massage therapy is classified in the SIC code as 7299, Miscellaneous Services, Not Elsewhere Classified (Massage Parlors). This is Major Group SIC 72, Personal Services, which are allowed in the B2 zoning district. Personal services also are allowed in the B 1 Neighborhood Business District and the MS district. Under the SIC code 72, laundromats and barbershops are also covered, but massage parlors alone are just allowed in the B2 zoning district under the Frederick County zoning ordinance. Staff provided a positive response in allowing the restaurant/snack bar accessory use. A full-service restaurant is a SIC code 5883, Eating Places and it's a Major Group 58 - Eating and Drinking Places. These are allowed in Frederick County in the B 1 Neighborhood Business District, B2 General Business District and the MS Medical Support District. Outdoor soccer fields are considered a commercial sports and recreation and are only allowed in the B2 zoning district or the RA zoning district with a conditional use permit. Staff is seeking to affirm the Zoning Administrator's determination that the uses listed in this appeal application by the applicant are not permitted in the B3 Industrial Transition District at this site. Chairman Larrick asked if all these requests are still on the table today or have any been resolved. Mr. Hodgson approached the podium and identified himself. Chairman Larrick stated for the record that the members were just presented with a package with revised site plans and other information by Mr. Hodgson, none of which Chairman Larrick has seen prior to this moment. Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1223 Page 3 Mr. Hodgson stated that, unfortunately, the 30 people that were here at the last BZA meeting were convinced that all the issues were resolved before that meeting and it was tabled. Unfortunately, the issues have not been resolved. Mr. Hodgson further stated that some of them have been resolved: the physical therapy office, the chiropractic office, and massage therapy have been scratched from his site plan and he has no intention of putting those facilities within his property. Chairman Larrick stated that this leaves them with the restaurant/snack bar and the outdoor soccer field on appeal today, and Mr. Hodgson stated that is correct. Chairman Larrick reiterated that the physical therapy, the chiropractic center and the massage therapy is no longer part of the appeal and Mr. Hodgson again stated that is correct. Chairman Larrick asked Mr. Hodgson if there was anything other than the restaurant/snack bar and soccer field that the Board needs to know about. Mr. Hodgson stated that there is an issue with parking. Chairman Larrick stated that the parking issue is part of the zoning and planning process, but obviously that is part of the County's concern also. Mr. Hodgson stated that basically what's happened with the parking is they have come to an agreement that he would need shared parking to have any special or large events; for example, the Chamber of Commerce dinner that is supposed to take place this Friday. They expect 700-800 people there. Mr. Hodgson said that his site, when finished, will be equipped with 250 spaces with approximately 155 spaces available at CarQuest, which is part of Commonwealth Business Park, and another 15-20 spaces available at Michael Prelip's business. Mr. Hodgson was requested by Zoning to get shared parking agreements by them, which he did. He talked to the General Manager/Operational Manger of CarQuest who signed a letter that it was okay for Mr. Hodgson to use off-site parking on his premises as long as they are not open for business. That seemed to be suitable for everybody, and also with Michael Prelip. Mr. Hodgson brought that letter back to Zoning and Mr. Cheran informed him that according to code, the letter has to be signed by the owner of the property. Mr. Hodgson further stated that the owner of the property could be the President of G.E., he does not know. The person in control of that property and the parking is the General Operational Manger of CarQuest, who signed a letter, which is enclosed in the packet just given to the members. Mr. Hodgson said he is not saying this is impossible, just a little bit impractical to contact the owner. Obviously, Mr. Cheran has looked it up and the owner is not a resident of Virginia, so his interest in allowing parking on this property would not be there. As far as the outdoor soccer field, Mr. Hodgson stated that he understands in the ordinance it does not provide for outdoor soccer fields; however, there is a need in this community for outdoor soccer fields. Mr. Hodgson has a retention pond that is as big as an outdoor soccer field and if it stays dry in the spring and summer, he would like the community to use that. There is actually no way for Mr. Hodgson to generate fees from this, this would be a service to the community and to the kids of the area to use this field. Mr. Hodgson stated that he is just kind of bewildered by the common sense of this, that we build a multi-million dollar sports complex and we can't put an outdoor soccer field even though it's already there - it's a hole in the ground covered with grass. Mr. Hodgson would like the Board to take a look at that. Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1224 Page 4 Mr. Hodgson further stated that as for the restaurant, when he originally started developing this project some five years, he sat down and had many meetings with Michael Ruddy, the Zoning Administrator at the time, to make sure that all his is were crossed and is dotted. Parking was a big issue. Mr. Hodgson explained to Mr. Ruddy exactly what was going on in the facility, he gave him a brochure and a diagram of the building, including the restaurant. Mr. Hodgson brought in several site plans from other facilities in Virginia, Maryland and Michigan, showing the different site plans and the parking availability based on the equivalent size he was proposing. After several meetings, they came to a determination that 250 parking spaces would be enough to accomplish what he needed to do, with the exception of the event center and assembly use. At that point, nothing was ever mentioned about snack bar/restaurant and the B3 zoning. Mr. Hodgson stated that he pleads ignorance, he didn't know that restaurants weren't allowed in B3, so we can call it a snack bar. The issue at this point is that he has a facility that can accommodate over 1,000 people and Zoning and Planning have determined that 30 seats in that restaurant should be enough. There is no way that you can have a 30 -seat snack bar or restaurant and accommodate 1,000 people at one time. Mr. Hodgson is looking to the Board, hoping for some common sense in seeing that he has a facility that needs to accommodate more than 30 seats. The snack bar is designed to accommodate 115 seats. He originally requested 100 seats and then he talked to Eric Lawrence about this. Mr. Hodgson asked for some detail in how they came up with 30 seats, and Mr Lawrence stated that he thinks this is reasonable for a snack bar. Mr. Hodgson has not found in any ordinance what a snack bar is and what a restaurant is. Mr. Hodgson further stated that it would be a huge hardship to not only the patrons, but the person that's running the snack bar and the whole facility. Mr. Hodgson read a letter from Dave Holliday of Holliday Construction, in which Mr. Holliday supported Mr. Hodgson's appeal. Chairman Larrick asked Mr. Hodgson if he is challenging the actual determination made by the Planning Department and asking the Board to ignore those issues. Mr. Hodgson responded no. Chairman Larrick stated that the Board is not empowered to change the zoning laws. The only issue before the Board is whether the determination made by the Director was wrong. Mr. Hodgson stated that is he challenging the 30 seats. Chairman Larrick stated that basically what Mr. Hodgson is saying is that he hasn't been able to find a good distinction between a snack bar and a restaurant, but he is not challenging whether or not it's okay to have a snack bar but not have a restaurant. Mr. Hodgson responded that there is a fine line; what is the difference between a snack bar and a restaurant. Mr. Cheran stated that the number of seats was determined by the fact that a restaurant with 100 seats, staff felt, would be a primary use at that site. Staff thought that 30 seats would be enough and yet not overburden the parking requirements, and it would not become a primary use. Commonly a snack bar is treated as an accessory use and usually has a smaller footprint than would a 100 -seat restaurant. Mr. Cheran concurred with Mr. Hodgson there is not a definition in Frederick County zoning for a restaurant or snack bar, other than where food and beverages are prepared and consumed, and it is the determination of the Zoning Administrator. Chairman Larrick stated if that is the only thing that defines serving of food is restaurant, then anybody serving food would come under that sole definition. Mr. Cheran said that is the definition of the Frederick County zoning ordinance, but he pointed out that if you look at the Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1225 Page 5 different zoning districts that we do have and rate a restaurants - for seating and capacity - we consider one seat per 250 square feet. Mr. Cheran moved forward to the soccer field issue. Outdoor soccer fields are classified under the Frederick County zoning ordinance as outdoor recreational. This facility is an indoor recreation facility. This was what it was set up for and the 133 zoning district allows for indoor, but not outdoor, recreation. That is the distinction. Had this been in a different zoning district, we could have probably accommodated it through the site plan process. Also, outdoor recreation facilities are allowed in the RA zoning districts with a conditional use permit. Chairman Larrick asked when the original site plan was approved, was this outdoor recreational facility part of that plan. Mr. Cheran responded no, it wasn't. The only thing on the original site plan was the square footage of the building and the parking requirements. Chairman Larrick asked when Planning first found out there was going to be an outdoor soccer facility. Mr. Cheran stated that when staff met with Mr. Hodgson two months ago, staff found out about these additional uses. At that time, staff cautioned Mr. Hodgson that these uses were not allowed in the 133 zoning district. Mr. Hodgson then sent a letter asking for a determination of these accessory uses and staff responded. Mr. Perry asked how many of Mr. Hodgson's requests are covered under B2 zoning. Mr. Cheran stated that just about every one of his requests could be approved in the B2 zoning. The parking requirements would need work. Mr. Perry asked if it would be a viable option to go for a zoning change to 132. Mr. Cheran responded that it would be, but this particular development is already master planned for that. Staff could look at that issue but it probably would not happen because it's master planned for industrial transition at this time. Chairman Larrick asked if we don't call it an accessory use, do we have to call it a restaurant. Mr. Cheran said we would have to look at the definition of accessory use or primary use, and staff feels that 100 seats exceeds an accessory use. Mr. Hodgson stated that the ordinance does say that snack bars are permitted in an indoor sports complex; unfortunately, Frederick County does not address what a snack bar is. His concern is there is no definition of a snack bar and there is no written ordinance or law that recognizes a snack bar and accommodates the seating issue. Mr. Hodgson stated that he is willing to compromise, but 30 seats is ridiculous; his concern is the hardship for the spectators and the parents and everyone else that's hanging around there. Chairman Larrick asked Mr. Hodgson about his outdoor recreational facility, if he had anything to add. Mr. Hodgson responded that obviously it is not permitted in 133 and that's fine and dandy. It doesn't make any difference to Mr. Hodgson, he just wanted to have a place for children to play. (Note: Mr. Rinker arrived at 3: 37.) Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1226 Page 6 Discussion returned to the restaurant/snack bar issue. Mr. Hodgson stated that he did not envision people driving off I-81 or Route 11 coming in to eat dinner. Mr. Rinker asked if it would be a sit- down type eating place and Mr. Hodgson responded there will be no waiters or waitresses. It's all self -serve with no take-out or delivery. Chairman Larrick asked if anyone else was there to speak in favor of the appeal, and no one responded. He then asked if anyone wanted to speak against the appeal, and again, no one responded. DISCUSSION Ms. Mather stated that she felt this project is something the area needs and maybe they should try a little bit harder to accommodate some of the things Mr. Hodgson needs. Ms. Mather further stated that she did not think the restaurant/snack bar issue was much of a problem because there's a big difference between a restaurant and a snack bar. Chairman Larrick stated that if the Board is being asked to approve a restaurant that seats 100 people, that is a fairly good sized restaurant. If the Board does not grant his appeal request, it doesn't mean Mr. Hodgson can't have a snack bar, he just can't seat 100 people. Mr. Rinker stated that based on the percentage of area, this is a small fraction of the area, and he thinks 100 seats would be in line, whether you call it fast food or a restaurant. It's basically going to be snack food being served. Vice -Chairman Catlett stated she is assuming they are only dealing with the square footage and not the issue of having special events or birthday parties. Mr. Cheran stated that special events were part of the appeal process. The parking ratio is one for three (one parking space for three people). If they have a special event there without the shared parking agreement, which is not before the Board, they would have to shut everything in the facility down and just have that one event; and a special event, as of today with the parking situation, can't happen. Vice -Chairman Catlett stated she wasn't addressing the parking issue as much as she was saying Mr. Hodgson is going to serve food to this many people. When he is advertising for birthday parties, 1,000 people for dinner, special events, banquets, how does that fall into this restaurant category. Mr. Cheran responded that would come under Special Event Category, but the seating arrangement does fall into that with 100 seats and cuts into parking requirements that are already there. Mr. Perry asked who is going to police the intermingling of all the various uses that take place in the building with regard to the 250 parking spaces. Mr. Cheran responded that when the site plan came in, staff was looking at it as only sporting events, not these other uses. That's why the Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1227 Page 7 parking was set at 250. Obviously, with all these uses, the applicant would need more parking. Mr. Cheran stated, to answer Mr. Perry's question, we have not gotten to that point yet with this appeal. Mr. Perry asked the capacity of the building as far as the Fire Marshall is concerned and Mr. Cheran responded that the occupancy is still being worked out right now. Mr. Cheran stated that he thought 450 for each of the athletic fields. The snack bar/restaurant use, however, is still pending, and the mezzanine level is also still pending because the floor plan is still in the Building Department. Ms. Mather stated that if people don't come there just to eat, then people will be coming to the events and just getting a hot dog or french fries or a soda, so she's not sure that the parking usage for just the restaurant portion is as critical. Mr. Cheran stated that is a point. However, looking at the worst case scenario, the parking requirements as they are today satisfy the facility, but if 100 people show up to eat at the snack bar, which is unlikely but possible, 250 parking spaces are not enough. Ms. Mather asked if it is possible to add any more land to this to get more parking. Mr. Cheran answered that right now, as the applicant pointed out, he is in the process of getting a shared parking arrangement which is allowed under the Frederick County zoning ordinance but has to meet certain levels, and we have not gotten there yet. If that did come about, the two properties that Mr. Hodgson mentioned would suffice the parking requirements to have all these uses. As of today, we don't have the parking agreements submitted in the proper form, so we have to go with 250 spaces. Mr. Rinker stated that with 250 spaces, three people per space, Mr. Hodgson has a capacity of 750 to use the facility. Mr. Cheran stated that the case scenario worked out with the applicant was, if you are going to have a special event, everything else would have to stop. Chairman Larrick stated that we are at the discussion point of the meeting, but he recognized Mr. Hodgson. Mr. Hodgson stated that the parking is not the issue here. Ms. Mather brought up a good point, whether it be 30 seats in the restaurant or 100, the people that are there for an event are the people that are going to be using the food service area. So whether they're watching an event being played or in the snack bar area getting something to eat, is really irrelevant. Chairman Larrick stated that he thinks it's relevant because of people just going there to get dinner. Mr. Hodgson stated they are not soliciting that. Chairman Larrick asked Mr. Hodgson if he could guarantee whoever runs the snack bar isn't going to be soliciting that. Mr. Hodgson stated that nobody can. Chairman Larrick said he feels the concern the County ultimately has is that there will be cars parked along Route 11 because there's not enough parking, causing accidents and injuries, and then people will be asking Planning how did you let this happen. Mr. Rinker asked Mr. Hodgson who is going to be running his food service and put it in their contract that they cannot have a Super Bowl party or advertise such parties. Mr. Hodgson responded that one of the vendors from Anthony's Pizza, and they have already been instructed there is no delivery and no take-out there. Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1228 Page 8 Chairman Larrick stated that is sounding more like a restaurant to him. They can't take it out, they have to stay there to eat. Mr. Wells asked if the food would be allowed out of the snack bar area, and Mr. Hodgson responded certainly. Mr. Wells stated that he was thinking that there will be sporting events with young people going there because it will become the place to be. It will be a nice place to go and "hang out". Mr. Wells further stated that he believes there will be a lot of traffic of young people just coming there because it's a place to watch their friends or just to sit around and talk. Mr. Hodgson responded that is not the intent of the facility and Mr. Wells said he understood that is not the intent. Mr. Wells said his concern is the definition and what is he approving. Mr. Wells asked Mr. Davenport if there is a definition of a snack bar and Mr. Davenport responded no. Mr. Wells stated the Board is being asked to make a judgment on something they don't even know what it is. Chairman Larrick stated that what they have going is the term "accessory use", and if the Board upholds the decision and does not uphold the appeal, it does not mean Mr. Hodgson can't still have the restaurant. He can have 30 seats and that's not a problem, but apparently he wants more than that. Chairman Larrick further stated that the Board does not have to act on anymore than just saying they grant or deny the appeal and it will be up to them to determine how many seats are okay. It might come back to the Board, but the Board doesn't have to draw that line today. Mr. Perry asked if the Board upholds the Administrator and he says 30 seats, then that's what Mr. Hodgson has to abide by, and Chairman Larrick responded yes. Chairman Larrick asked if there was any more discussion and stated that he would have a separate vote on the outdoor field, because they're two separate issues. Chairman Larrick asked for a motion just with reference to the appeal on the determination that the proposal is a restaurant and hence is not viable in this zoning district. Vice Chairman Catlett made a motion to uphold the determination by the Zoning Administrator, Mr. Wells seconded this motion. Mr. Rinker and Ms. Mathers voted no, and the rest of the Board members voted aye. Chairman Larrick asked for a motion on the outdoor soccer field. Mr. Wells made a motion to uphold the determination by the Zoning Administrator, Mr. Rinker seconded the motion, and the Board members voted unanimously to approve this motion. (Note: There was a five minute recess at this time.) PUBLIC HEARING Variance Request Application #15-03 of Clifford Staton fora 40 -foot variance for each side yard on the north and south sides, and a 25 -foot front yard variance from the 20 -foot ingress/egress easement. This property is located near the intersection of Front Royal Pike and Clydesdale Drive, and is identified with Property Identification Number 76A-1-32 in the Shawnee Magisterial District. Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1229 Page 9 ACTION -VARIANCE APPROVED PUBLIC HEARING Variance Request Application #16-03 of Clifford Staton for a 40 -foot variance for each side yard on the north and south sides, and a 25 -foot front yard variance from the 20 -foot ingress/egress easement. This property is located near the intersection of Front Royal Pike and Clydesdale Drive, and is identified with Property Identification Number 76A-1-34 in the Shawnee Magisterial District. ACTION -VARIANCE APPROVED Mr. Davenport presented the staff summary. Mr. Davenport stated that this staff report is a combined staff report for both variance application requests. Both variance applications are for Clifford Staton and submitted for Property Identification Numbers 76A-1-32 and 76A-1-34. Both properties are zoned RA (Rural Areas) and both properties are currently vacant. The subject properties were subdivided on March 24, 1947, as evidenced by Exhibit A, the deed and plat included in the agenda. When these original lots were created, each lot contained about one quarter acre in area and the setbacks for these properties are currently 60 feet from the front and 50 feet for the sides and rear, when the sides and rear adjoin residential uses. Mr. Davenport pointed out Exhibit B in the agenda as a plat for a lot consolidation that was approved on December 20, 2003, which consolidated lots 32, 33 and 34 into two new lots, which are the subject properties, lots 32 and 34. Mr. Davenport did not require the building restriction lines to be depicted on the plat because there was still no buildable area, even after the lot consolidation. The applicant is requesting three variances for each lot as illustrated on Exhibit C in the agenda. Two variances of 40 feet side yard variances are requested for the north and south sides of each lot. The result of this request would enable a ten foot left and right side setback for each lot. For each lot, one front yard variance of 25 feet is requested for the front of the lots from the 20 foot ingress/egress easement that was established on the lot consolidation plat. No variance is requested from the other front that is adjacent to the right-of-way for Front Royal Pike. When existing side and setback requirements are applied to lots 32 and 34, there is still no buildable area on these lots. Other properties throughout the same zoning district have the same setback requirements, but in this instance strict application of the ordinance produces an undue hardship. Mr. Davenport stated further that given the circumstances of our existing regulations and the relatively small area of the subject property, the granting of these variances would be appropriate. Mr. Davenport reminded the Board that even though this is a combined staff report, separate votes are required for each variance. Chairman Larrick asked if anyone was present to speak in favor of the variance. Mrs. Lorraine Staton approached the podium and asked if the variance had been granted for the two lots. Chairman Larrick stated that the Board has not voted yet. He asked Mrs. Staton if she heard the report that Mr. Davenport just gave and Mrs. Staton responded yes. He asked Mrs. Staton if there was anything she disagreed with and she responded no. Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1230 Page 10 Chairman Larrick stated that one question the Board would have, and that she needs to think about, is that on the exhibits there's an area marked "proposed single-family dwelling", on hath lot. 32 and 3d Chairman L arrit.lr aclrerl i f that wac a .tiially what wac gning to hP hilt_ Mrs. Staton stated yes, that somebody will use this to go by. Mrs. Staton said she can't sell the land until she knows if she has buildable lots, and there is no proposed dwelling at this time. Chairman Larrick stated that the Board knows they need a variance; the question is how much of a variance is needed. If a smaller dwelling was going to be built, they wouldn't need as much of a variance, so what the Statons are proposing becomes important to the Board because they don't want to give more than is needed, but they need to know what is needed. Mrs. Staton stated that she needs 52 feet, whether it's built to that size or not. Mr. Wells stated that it appears to him that maybe Mr. Artz has put a proposed size on therein relationship to housing directly behind and adjacent to those lots. That is the approximate size of most every house there, with a garage, that's pretty much standard footprint. Mr. Davenport stated that is correct, that's about a standard footprint for Canter Estates. Chairman Larrick asked if there was anyone else present to speak in favor of these applications. Juanita Taylor approached the podium and stated that she owned the property next door to Mr. Staton. Ms. Taylor stated she did not have any problem with him getting a variance, she believes she is going to be in the same boat; she will probably need a variance, too, but she has a house existing on her property. Ms. Taylor stated that the house has a "pump and haul" septic system. There's water and sewer practically next door so she would like to have an easement to hook onto the sewer. Chairman Larrick asked Ms. Taylor if she was asking the Board to give that to her. She stated yes, that and the variance. Chairman Larrick stated to start off, she should talk to the Health Department or Sanitation Department. Chairman Larrick stated that the only issue here today is whether the Statons will be granted a variance on the size of the house that will be built and what the setback requirements would be. Mr. Davenport stated that he would like to help with Ms. Taylor's request. She has reviewed 2309 in the State Code about..."the Board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary in the public interest". Mr. Davenport stated this is similar to what the Board may have done in the past about saying this variance might be appropriate, except for a mobile home. Ms. Taylor might be asking if it could be appropriate to grant an easement across the Statons' property to. help alleviate a public interest need. Chairman Larrick stated there is no request in the application for the Board that has anything to do with any request for an easement. He doesn't know if the BZA Board has the power to dictate that an easement be granted to a third party, who isn't even party to what is before the Board today. Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1231 Page 11 Mr. Rinker stated that is a private issue. Ms. Taylor said she was thinking since the Statons' land and their sewer lines are going to be close to her property, if she could just get the right to put that little pipe in there, it would settle a lot of problems on her property. Chairman Larrick asked Ms. Taylor is she already had an existing septic system and she responded yes, a pump and haul septic. Chairman Larrick asked if there was anyone else present to speak in favor of either application and no one responded. He then asked if anyone was present to speak against the applications, and there was no response. DISCUSSION Mr. Perry stated that he thinks the Board has the same problem now that they have faced many times before in exactly how much variance is needed to be granted. He is very much opposed to granting what he calls a carte blanche variance to cover any possible situation. Mr. Perry further stated that he understand the Staton's problem with trying to sell a piece of property without having a buildable site, but he is concerned about setting a precedence. Mr. Rinker asked if the Board had granted something similar to this on Route 636 four or five months ago. Chairman Larrick stated that he could remember one, maybe at Canter Estates. Vice Chairman Catlett said it was the old Macedonia Church Road. Chairman Larrick stated at that time the Board essentially went with what Stephens City was doing anyway, which was the 35/25/10, essentially turning it into a Stephens City type lot. Chairman Larrick remembered the lots off of Wardensville Grade before the Board recently that is still on appeal. The Board did not grant that request for the reason that in that case they were asking for a large number of lots, and they didn't have any proposal. Here at least, there is a proposal and Mr. Davenport has pointed out this looks to be fairly standard. Vice Chairman Catlett asked Mr. Davenport if the lots as they existed previously were three lots, were they subject to current setbacks. Mr. Davenport responded yes, they're still subject to current setbacks. The only way they would not be subject to current requirements is if they meet the County's vested rights policy, which would mean that the setbacks were properly illustrated on the recorded plats at that time, which obviously they weren't so it reverts to the current standards. Chairman Larrick asked if there was any more discussion. Receiving no responses, he asked for motions. On variance request #15-03, Lot 32, Mr. Rinker made a motion to grant the variance request with the stipulation that no manufactured or mobile homes be built on the property. Vice Chairman Catlett seconded the motion and the vote was unanimous with the exception of Ms. Mather, who abstained. Chairman Larrick asked for a motion on variance request # 16-03, Lot 34. Mr. Rinker made a motion to grant the variance request with the stipulation that no manufactured or mobile homes be built on the property. Vice Chairman Catlett seconded the motion and the vote was unanimous with Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1232 Page 12 the exception of Ms. Mather, who abstained. Chairman Larrick asked if there was any new business. For Mr. Rinker's benefit, he stated the Board had voted on the officers for this year, and that Mr. Malcolm has resigned from the Board. Mr. Davenport stated that he is trying to get Dr. Chandler to come up and give a presentation through a Certified Board of Zoning Appeals. Mr. Davenport would like to invite several local jurisdictions. Dr. Chandler has a program set up now where it is basically two nights in Charlottesville and another all -day session in Richmond, and we don't have anywhere near close to the budget to send even one person there. So Mr. Davenport is trying to get Dr. Chandler to come up here and just give basically an update and a refresher course. Mr. Davenport asked if anyone is interested in doing this. Chairman Larrick responded yes. Mr. Davenport asked if there were any days of the week that were not convenient. The Board discussed their possible available days and came up with any day of the week, except Thursday, would be convenient. As there were no other items to be discussed, the meeting adjourned at 4:50 p.m. by unanimous vote. Respectfully submitted, James Larrick, Jr., Chairman Bev Dellinger, Secretary Frederick Co. Board of Zoning Appeals Minutes of January 20, 2004 Minute Book Page 1233 VARIANCE APPLICATION #01-04 ROBERT D. BROWN Staff Report for the Board of Zoning Appeals Prepared: March 22, 2004 Staff Contact: Patrick T. Davenport 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: April 20, 2004 - Action Pending LOCATION: 678 Lake Serene Drive. MAGISTERIAL DISTRICT: Gainesboro PROPERTY ID NUMBERN: 3113-1-18 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) District Land Use: Residential ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) South: RA (Rural Areas) East: RA (Rural Areas) West: RA (Rural Areas) Use: Ingress/Egress; Residential Use: Lake/Residential Use: Residential Use: Residential VARIANCE REQUESTED: The applicant is requesting a 35 foot variance of the east side yard. REASON FOR VARIANCE: Exceptional narrowness and size and shape of property. Property has 140 foot frontage on the lake and narrows to 55 feet at the back property line. STAFF COMMENTS: The subject property was approved by the Board of Supervisors on August 10, 1969 and subsequently recorded on August 13, 1969. The property was recorded as part of a subdivision known as "Lake Serene"("Exhibit A"). Most of the lots contain approximately 1 acre in area. The applicant is proposing to construct an addition to the existing dwelling as indicated on "Exhibit B". According to "Exhibit B" submitted by the applicant, the addition is proposed to extend to a point approximately 21.4 feet from the side (eastern) property line. This property located within the RA (Rural Areas) Zoning District requires, per § 165-55A, the following setbacks: 60' for the front and 50' for the sides and rear. This requirement was established as an amendment to the Zoning Ordinance on August 9, 1993. Section § 165-152 Legally Non conforming lots of records states that: "Any lot or record at the time of the adoption of this chapter, which is less in area or frontage than the requirements of this chapter, may be used for uses allowed by this chapter when yard and setback requirements are met. The current setbacks for the particular Zoning District in question are to be applied for all lots, unless the most recent legally approved and recorded plat of the property clearly depicts all appropriate terminology and numeric information for different setbacks." Since the setbacks for the property were not illustrated on the plat in accordance with the Frederick County Zoning Ordinance, the minimum setbacks revert to the current standard. Section §165-151C permits an expansion of a legally non conforming uses or structure. "Exhibit C" is an illustration prepared by staff to depict the buildable area the applicant currently has under §165-151C without the need for obtaining a variance. STAFF CONCLUSIONS FOR THE APRIL 20, 2004 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. The subject lot has a fairly narrow width and when applied in conjunction with two front setbacks, the lot is not able to be improved to the owner's desire. Strict application of the zoning ordinance in this case does not produce an undue hardship because the property contains an area that may be expanded into without a variance. Additionally, the subject property has already been developed to its intended use, a single family dwelling. The inability to construct an addition does not constitute an undue hardship. Since the criteria specified in §15.2-2309(2) are not fully met, denial of this variance would be justified. APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA -OFFICE USE ONLY - Variance .Application No. Submittal Deadline: l Submittal Date: For the meeting of Foe Paid: yes i initials: Sign Deposit Yes MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT 1. The applicant is the owner other . (Check one) 2. APPLICANT(: NAME: ADDRESS 7 ��� 41;?. TELEPHONE: ��O _ Ste - IM -e OCCUPANT: (if different) NAME: ADDRESS: TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): �//w.r•.�/:s� -. 'TTS.. ��l!"..'J. \ �%/i :✓%�'.f '7 JG//J^-d.�2%Y��.�i�.`Y��t � ✓� �.i"-� • �L,�,i B 4Al 77 Ae r The property has a road frontage of S feet and a depth of feet and consists of 4�e acres (please be exact). Page 5 of 9 5. The property is owned by iC;21- %1-- ��� as evidenced by deed from . ®.Q% recorded (previous owner) in deed book no. on page 7 of the deed books of the Clerk of the Court for Frederick County. Please attach a copy of the recorded deed. 6. Magisterial District: d4/14*�ae4 7. Property Identification No.: 3 / j9 --/ `e 8. The existing zoning of the property is: 124 9. The existing use of the property is:A_Z5 pEr+lVL<14Z 10. Adjoining Property: USE North 14W.,4W East South 4A45- WestG° ZONING 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.") 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 Page 6 of 9 13. Additional comments, if any: C�,&_, _��� 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 notified by mail of this application: REM Page 7 of 9 AddressS' Property ID # 13l B 041 / B1l dj�%loll ...1�. Address 4M' _ Wyk Property ID # _ t3 tie ' 00,!�, I VO Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Page 7 of 9 U Z �Z O U �W Z G �z ry� �.mom 1� 11 -.- IIS► ---momm ------ :::.:::::: -----...... MMOMM MMOMEM mom ON 0 MOMMM OM IS ------ ...mom .ME 111f`�1�1111'IIIIP� , -.�... �► �•./�, .III U Z �Z O U �W Z G �z rn o � 0 zz 71 Q \ \ q v.- = 1 \ o Z 50 GOU71 NN SETBACK \ \ O 1 \\ \ 1 \ 25' GOVENAM SETBACK \ cNn \ Brown Addition - Scheme 3 ZWim ' m po = CO-- r- — r^ 678 Lake Serene Drive, Winchester, VA 22603 pp O W A MAIN STREET ARCHITECTURE, P.C. 120 WEST MAIN STREET BERRYVILLE VIRGINIA 22611 540.955.1669 FAX 540.455.4614 15. Provide a sketch ofthe property (you may use this page or attach engineer's drawing). 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, drawings or photographs with this application. Page 8 of 9 AGREEMENT VARIANCE # 6191-0 (Number to be assigned by the Planning Dept.) 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-of-way until the hearing. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF APPLICANT`° DATE -� -72�P— d ' SIGNATURE OF OWNER DATE (if other than applicant) -OFFICE USE ONLY- BZA PUBLIC HEARING OF ACTION: - DA E - APPROVAL SIGNED: BZA CHAIRMAN DENIAL DATE: Page 9 of 9 #1695 LAKE 3ERENE • INSTRUMENT .. sw�rxx+��rarr�araa+�r �r+. a*rr�rar�+r■a#tarx ��r a*..aF - , Bov 35S PALE 1.47 0921. THIS INSTRUMENT, made and dated this day of July, 7/31/69 DGS/clh 1969, for recordation contemporaneously and along with the attached plat of lots entitled "Lake Serene", located about 1.2 miles West of Cedar Grove, and situate in Gainesboro District, Frederick County, Virginia, which plat is made a part of this instrument and incorporated herewith by reference. WHEREAS, Lake -Serene, Inc. is the owner of certain lots of land, private roads and roadways, private lake, and shore areas as described and set forth on the attached plat; being the same realty conveyed to Lake Serene, Inc. by deed. of H. W. Butler, Jr., et als, dated July 8, 1969, and of record in the Clerk's Office, Circuit Court of Frederick County, Virginia, in Deed Book 3A, at Page ,f Z; and WHEREAS, the said Lake Serene, Inc., pursuant to its by-laws, does intend and does hereby restrict the said lots on the attached plat, which plat has been approved by the Frederick County Board of Supervisors and the Frederick County Health Department. NOW, THEREFORE, WITNESSETH: That the said lots of the said Lake Serene, Inc. described on the attached plat shall be subject to and conveyed subject to the following restrictive covenants, which covenants shall be binding on the Grantees of the said Corporation, their successors,,heirs, distributees, personal representatives and assigns: 1. That neither the Corporation, its successors, or the Grantees of the Corporation, their heirs or assigns, will request the Board of Supervisors or the Virginia Department SCULLY & SIMPBON W.MC"ECTEIIT V. of Highways that said streets be taken into the highway system Exhibit "A" �5S F,�rE t48 assigns and Grantees as follows: 1. That the said Lake Serene, Inc. does reserve the fee simple absolute title in all of the streets, roads, roadways, bridges, lakes, streams, runs, dams, and that portion of the shoreline of said lake between the waterside lot line and the water line of the lake, and to, all other land of i the Corporation. i 2. It is not the intention of the said Corporation, and the said Corporation does not deed or vest any title in any of the areas mentioned in the preceding provisions to either the public, the Commonwealth of Vir-ginia, or the County of Frederick, Virginia, but expressly reserves the same, it being the intention of the Corporation to reserve as private lands and appurtenances the said streets', roads, roadways, bridges, lakes, streams, runs., dams, and that portion of the shoreline situated between the waterside lot lines and the water line of the lake and all other lands of the Corporation. 3. The Corporation does by this instrument give its Grantees an easement of right of way to use the roads, roadways and bridges of the said Corporation for the purpose of ingress, egress and regress to such Grantees and their invitees. 4. It is further the intent of the said Corporation to reserve the shore property lying between the waterside lot lines and the water line of the lake, and it is not intended that the Grantees from the Corporation or lot owners acquire SCULLY & SIMPSON any title or right in and to the said property lying between -0-8.-LAW wm....T... V, the waterside lot lines and the water line of the lake. -3- C.;LLv & S-PSON „LY,EAT v.. BOOK 356 VALE 148 until the lot owners have brought the said roadways described on said plat up to the specifications of the Virginia Depart- ment of Highways and the Board of Supervisors of Frederick County, Virginia. 2. No building may be erected upon any lot nor may any lot or improvements thereon be used for any purpose other than residential. 3. No temporary buildings or outbuildings, or mobile homes shall be permitted. 4. No building may be erected upon any lot nor may be used except for a single-family dwelling. 5. A sanitary disposal system shall be erected and maintained upon each lot by the lot owner, which sanitary disposal system shall be erected and maintained in accor- dance with the Sanitary Code of the State of Virginia and the County of Frederick, Virginia. 6. No house or cottage may be built upon any lot within 25 feet of the lakefront property line or within 10 feet of any side boundary line. 7. No house or cottage shall be erected upon any lot at a cost of less than $10,000.00, exclusive of sanitary systems and water systems. 8. The Corporation or its successor retains a lien upon each of the lots to secure the payment of all dues, rents and other sums of money which may be levied by the Grantor upon the land owner. It is further intended, and by this instrument, the said Corporation does hereby bind itself, its successors, -2- r i 1 ' I E I1 BOOK 35f)' a+q 150 5. That each of the covenants and agreements herein contained are severable, and in the event that any one or more such agreements and covenants shall be found illegal or unenforceable in law, the remaining legal and enforceable i covenants shall be binding upon the Corporation, its successors and assigns and/or the Grantees from the Corporation, and their successors, heirs, distributees, personal represen- tatives and assigns. The above and foregoing instrument and attached plat is with the free consent and in accordance with the desires of the undersigned owner. WITNESS the following signature of Lake Serene, Inc., by its President,- H. W. Butler, Jr., and its seal duly affixed and attested by its Secretary, David G. Simpson, on the day and year first above written: LAKE SERENE, INC. By PRESIDENT ATT E SECRETARY (SEAL 1 3TATE OF VIRGINIA 'OUNTY OF FREDERICK, To -wit: I, Constance L. Hicks, a Notary Public in and for -4- Exhibit "A" ■o6K :355 pace -155 ,Y;- �.�.{ '`. Imo; ' -" ,• !. •,; � � �� �����J fid„ ,�$� iii 41 'sv 1 1 In-Ps M W � S n- ZD YJ Ellvu d' � a rd I 2200 a YZW ta°j ac 0 a cc Exhibit "A" 156 / 1 / / / I / I / / I PROPOSED ADDITION / /' ` / / I /' 87'-9 118'• m � eROQ�R� % j Z I Q CIO 0 / — to PROP05ED GARAGE i ' NEW DECK I� / 50-'c- C)'jW 5 I / I / / I / I � EXI5TING DECK I / J 1-51 ING EXI5TING HOU5E / / WELL NEWjS6R£EN PORCH ON DECK O PKO�iY `i �O0-1 'm i STING TOOL SHED EXI5TING SEPTIC TANK 51TE PLAN O 10 20 30 40 50 GO FE Exhibit "B" Exhibit "C" PPOP05ED GARAGE PROPOSED ADDITION 25'-0" T 0 N E ECK -,L- FOPCM ON DECK 0 0 —5rISTING TOOL 5HED EX15T]NG\ SEPTIC TANK SITE FLAN 6d 6d 6d 6d 6P,9, pq P97 4pg—pg— 50 P9( F 9- 2�d 30 0 5GO 70 FE ( c'd James T. Anderson, Jr. 686 Lake Serene Drive Winchester, Virginia 22603 March 22, 2004 Department of Planning and Development Board of Zoning Appeals 107 N. Kent Street Winchester, Virginia 22601 Dear Sir or Madam: This letter is in reference to Robert D. Brown's request for a variance at 678 Lake Serene Drive. This is to advise that I have reviewed this application and the plans and support the requested variance. Sincerely, ell - James T. Anderson. Jr. Greg Rhodes Kimberly Rhodes. 654 Lake Serene Drive Winchester, Virginia 22603 March 22, 2004 Department of Planning and Development Board of Zoning Appeals 107 N. Kent Street Winchester, Virginia 22601 Dear Sir or Madam: This letter is in reference to Robert D. Brown's request for a variance at 678 Lake Serene Drive. This is to advise that we have reviewed this application and the plans and support the requested variance. Sincerer , 1 Greg 'hodes Kimberly Rhodes VARIANCE APPLICATION #02-04 VALLEY BUILDING SYSTEMS, INC. Staff Report for the Board of Zoning Appeals Prepared: March 25, 2004 Staff Contact: Patrick T. Davenport 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: April 20, 2004 - Action Pending LOCATION: Canter Estates, Section 3, Phase 1, Lot 248, at the intersection of Clydesdale Drive and Lariat Court. MAGISTERIAL DISTRICT: Shawnee PROPERTY ID NUMBER(S): 76B-1-3-248 PROPERTY ZONING & USE: Zoned: RP (Residential Performance) District Land Use: Residential ADJOINING PROPERTY ZONING & USE: North: RP (Residential Performance) Use: Residential South: RP (Residential Performance) Use: Residential East: RP (Residential Performance) Use: Residential West: RP (Residential Performance) Use: Residential VARIANCE REQUESTED: The applicant is requesting a 7.1 foot front yard (from Clydesdale Drive) variance for an attached stairs, stoops and porch. REASON FOR VARIANCE: The attached porch with two stoops was not apparent to the surveyor in computing the house stakeout because the porch was built on piers and was not part of the structural footing detail. The primary living space is well within all setback requirements; however, the covered porch encroaches into the setback area. STAFF COMMENTS: The final subdivision plats establishing Lot 248 in Section 3, Phase 1 of Canter Estates, were approved on November 12, 2002. Valley Building Systems received zoning approval for a single- family home building permit (#946-03) on May 6, 2003, as illustrated by "Exhibit "A". As part of the permit process, the permit applicant indicated the proposed setbacks for the dwelling to be constructed. Lot 248 is a corner lot and requires two front setbacks. The permit applicant indicated proposed setbacks of 56.18' front (along Lariat Court), 38.86' left/other front (along Clydesdale Drive) side, 20.43' right side, and 25.97' feet in the rear. The Zoning Ordinance §165-23H(1) provides the survey location requirements for primary structures. It states that: "A surveyor licensed in the Commonwealth of Virginia shall establish the location of any primary structure that is five feet or less from any minimum setback requirement." The setbacks for a single-family dwelling in the RP Zoning District on this lot size are 35' for both fronts, 10' side, and 25' feet rear (§165-65C). "Exhibit B" is a copy of the foundation plan that apparently depicts the piers and beam specifications for a porch. "Exhibit C" is the first setback report submitted by Greenway Engineering which verifies the footing foundation location. This setback report did not appear to reflect the existence of the porch feature. The variance applicant has indicated that after the footing foundation was located and construction began on the dwelling, the porch features were added and were subsequently constructed in a location that exceeded the minimum front setbacks. The applicant submitted a house location survey labeled "Exhibit D", which illustrates the existing location of the dwelling and front setback encroachment. The portion of the porch constructed into the front setback is the reason for the variance request. STAFF CONCLUSIONS FOR THE APRIL 20, 2004 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. The applicant should have accurately indicated the proposed setbacks on the building permit. Since the applicant did not situate the dwelling within the proposed setbacks, the subject front setback violation and subsequent variance application resulted. The applicant constructed a dwelling in a location not consistent with the information submitted with the building permit. The applicant's failure to provide accurate setback information at the time a building permit was sought does not constitute a hardship. Therefore, denial of this variance may be justified. 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 other x. (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: Greenway Engineering NAME: ADDRESS 151 Windy Hill Lane ADDRESS: TELEPHONE: 540-662-4185 TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): Canter Estates, Section 3, Phase 1,Lot 248 At intersection of Clydesdale Drive and Lariat Court 4. The property has a roWfrontage of 220 feet and a depth of 155 feet and consists of 14_958 sF (please be exact). Clydesdale Drive road frontage 128.00' Lariat Court road frontage 92.00' Page 5 of 9 5. The property is owned by valley Building Systems, Inc. as evidenced by deed from Jasbo, Inc. recorded (previous owner) inx*&xMmk instrument no. 030009306 on page 0384 of the deed books of the Clerk of the Court for Frederick County. Please attach a copy of the recorded deed. 6. Magisterial District: Shawnee 7. Property Identification No.: 76B -((l))-(3)-248 8. The existing zoning of the property is: RP 9. The existing use of the property is: Single-family dwelling 10. Adjoining Property: USE North Single-family East Single-family South Road West Riad ZONING RP RP 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 7.1' front yard variance for an attached stairs, stoops, and porch 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 attached porch with 2 stoops was not apparent_to the survevor in computing the house stakeout because the porch was built on piers and was not part of the structural footing detail. The primary living space is well within all setback requirements, however, the covere porch (see attached photos) encroaches into the setback area. The cantilever truss system for the porch roof is attached to the roof truss system for the main house. Page 6 of 9 13. Additional comments, if any: See attached photos and architectural plan 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 notified by mail of this application: NAME Canter Estates Section 3, Phase 11 Lot 247 Address property ID # 76B -((I))-(3)-247 Canter Estates Section 3, Phase 11 Lot 249 Address Property ID # 76B-((1))-(3)-249 Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Page 7 of 9 15. Provide a sketch of the property (you may use this page or attach engineer's drawing). 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, drawings or photographs with this application. Page 8 of 9 AGREEMENT VARIANCE # — C `% (Number to be assigned by the Planning DeDt.) 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-of-way until the hearing. I hereby certify that all of the statements and information conrein are, to the best of my knowledge, true. r. a{ SIGNATURE OF APPLICAN DATE 3116110+ SIGNATURE OF OWNER (if er than appli ) -OFFICE USE ONLY- BZA PUBLIC HEARING OF � b O ACTION. - DA E - APPROVAL SIGNED: BZA CHAIRMAN DENIAL DATE: Page 9 of 9 00 .S � _ M o �E (D W a o » co F. a m� N 0 w N N .�- W 5 mom°® m M sy I d eDr \ Cl des m y Q W n e9 W \ \_ � k J \/ \ i County of Frederick ~-----�IT BUILOINS PERMIT NUM8FK; 0000946 - 2OO� Winchester VA 22601 iBC: 1996 LIEN ASE0T� ��NANDOAH VA'LlEY TlTlf 54O-667-7760 APR-IC4rI[t"I MnE-' 4/16/2003 2113 VALl1--Y WINCH]91;-ER VA 226O1 ' ISSi���� DA7�� � -���'�� ~^ ^' m�oa�� DATE� � ' DATE� 5/06/2003 _-___-______---_______--_--__---______-_______-_=__-_-___-_--_--------__' OWNERNAME/ADDRF3G NAME/PIOORESS - VALLEY 0]I1 -DING SYSTEMS' DdC VALLE-f 8UILDI.K!G SYSTEMS Clydesdale Drive 7735 Main Street 7735MAIN61� Canter Estates' Lot 248OOOOO Middletoun, VA 22645 MIDJLETDWN' VA 2264� R -0--F-': 54(*,,,-B69-73,'XX) PH0NE. 540 869 78OO ----------------------------------------------------------------------'- RE A%011'n't` 41165 DE3CRIP7ION OF C[k1SrRUCJIO11 iIK%ffION ' '--' ' ''------'------------------------ TAX MAP N(].1 76B 1 3 248 _---_______--____--_____-_-___-_-_-_--- LOTt 24@ Bi -""'."CK; ---_--____-----_-'_--'----_---_'_ SEI3ION'. � � - ' �� '~�/� HEALTH PERMIT NO, � DISTRICT� /(,7RIGHT!. 20' LEFT: 39'3 5 Ai- Fredericktoune 2DNE� Residential P, ` ornla-nce [;�JR / FRT0E.*/ RIGi{7-(F*'-Wr S/E CdP NO., 8I7E FLAN: ' _---------___________________--_-_______________--_____--______---_--_ OIRECTI0+-� TO SITE; Take Tasker .� Road, follow to White Oak Road` follow to Canter Estates Mast*� � /��. Plan Number ^,q��./ ,~' � Book Map »« a Pge 261' G' id B-2 ----------------------------------'---------------------------------------------------------------------------------- i�E GROUP: Use Group "R" Residential USE C[}DE: SinyleFamily Duelling SQFIET; 1769 (�K��.TYPE� Ne� __--_-_-__________---_-_-____-_--__--_--___---____-____-_-_---_-____--__ NATD��WRK� - uam/ Type.Co�� Girder uearzny p/ ` 0]D -DING PERMIT 62 X 43 ES 1 1/2 # 3 i0� 1769 ` TUD�. # 1114 9 +' Footing Foundation Walls Header '�.�Snmke Get. Egress NOTE GAR1-4]E 4OO SQ. FT. ^NOTE F�X�' POR�1 NO*OE <jP�Q�IRS k07� ----------------------- J-0, ________________J-B VALi�� � PER�IT�EE� S 1ocharse ' ------------------------------------------------------ i -1,51D. i 000. "AD -----------------------------------------------------15O,OOO.00 466.34 4,66 > # BATHROOM 2 + 1 R -IN Fir. Joist Roof E ���AREA (---_---___----__--___--'_----__-----__--__--__--_____- { I hereby agree to cf.)mp-Iy with all provisions of the Virginia � Uniform Statewide Building Code and the Zonino & Subdivision ( Ordinances as adopted by the County of Frederick. � 1 & 2 FAMILY 0WE1LING [O[KE:-*: or BCK1-Y\ MATION�' 0]IL11ING O]DE � � SURVEY STANDARDS REE�]IRED? NO INITIA0yx/d � 0�lAILE0 SITE PLAN INTII�- -------------------------------- ------------------------------------------ ------------------------------ -_- -����--- ---_ ����--- 44. --- qd'--~- ~--_-- ��zm�yCoUe��czal Zoningr tf MP -�r- ---------------'----- -----`~'--------------- Darrov-%/p --------------------- ~ Exhibit "A" +I 1 y o , (� GLYDESD LE /DRIVE q++�� C2 — x=x— i S ji,5j — -- U ow w � i SLOT 248 14 �o I 04 1523 15 25 GAR.= BURIED i t I F.F.= 17.50 + I ; B.F.=07.50 f x O 12 10' B.R.L o 15D� �ji X V7 ! ! L 140 � x I —x—x—x =x— mi=x=x =x= x SF x`"20`32'42" W 155. 13' I / 10' B.R.L. \ �1} 9 30 0 30 7 \ S� GRAPHIC SCALE (IN FEET) PROPOSED HOUSE GRADING PLAN LOT 248 �PLTH oF�/�� CANTER ESTATES- SECTION THREE SHAWNEE DISTRICT,FREDERICK COUNTY, VIRGINIA ? TONG KUSUMA SCALE: 1 " = 30' DATE: MAY 27 , 2003 ➢ No. 026715 ia� GREENWAY ENGINEERING 512� `03 151 WINDY HILL LANE Engineers WINCHESTER, VA. 22602 SS/ONAL EAG Surveyors TELEPHONE: (540) 662-4185 FAX: (540) 722-9528 Founded in 1971 www.greenwayeng.com 2291V 7igFFT 1 nF 9 � \] �A¥d ]� w � lm � 2 !QQ{ \ | _ _ Z �� q! f NVIdQNflO]1NWS8 'VqA � \] �A¥d ]� w � lm � 2 22 _ _ Z �� NVIdQNflO]1NWS8 'VqA � \] Countv of Fr��nic� Se�bad/ Xeport PERTIIT NUN` R- OOO6 - 2003 Winchester VA 226O1 iBBC� 1996 LIE@AGEMT' APR7CATION D�R�� 4/�6/2<X� IS��N�CE COOnE` RE4�k�' DArE� \ ` OATE� OWNER NAME/AODRESS SITE �Ub�3S C{��RCDR NAME/AODRESS VAL1J�' B�Il'DING S\'SYEMaC OWNER Clydesdale Drive 7735 MAINST Canter Estates` Lot248 OOCNO MIO[U."T{K-IN, VA22645 PFKX��� 54O -869-780O n��a� ------------------------------------------------------------------------------------------------------------------- -It'll RE AC�T#� 41165 DE3CRJPTION OF �]N�[RUCrION Lo( -A- ION TAXI, M.A�lNO2'aP LOT 2P "'W"K� II!� ----------------------- ------'-------------------------------------------------------------------------------------- SET -8��KS� F��-7H PERMIT NO.� QISTRICT' F. 1,� 56' ��� �' R'DOGP�IN� �8-DIVISIf*v;��R B�TB RIGHT� 2�' LEFT/ 39' AREA� Fredericktoune ZONE� Residential Peryo/nmnce FRTIGE: KI. U., -il-�YSAE CUP NO.SITE PLAN/ ---------------------------------------------------------------------------------------------------------------'- DIRE�[I0YS TO TakeTasker Rvad' follou to WhiteOak Road, follou to Canter Estates Master Plan NunrL)eo` Map Book Pase261, Grid B-'2 -----------------------------'-----------------^------------------------------------'------------------------------- USE UseGroup "R" Residential il.sECOOE- SinyleFamilv Duelliny SQ FI]�T' CNST.TYPE: Now - ------------------------------------------------------------_-------------------------_--------------------'_----- } Setback Report * MIN. SET'8ACK FRONT 10' '2- 0,�� * A, + * A. --------------------------------------- .08 VALUE! � -------------------------------------- PE��ITFEll- / i-------------------------------------------------------------------------i SURVEYOR INFORM�|ION ( � ( � qW �� �� � ' w�PAOZn�' ~~^ F�]�[�S«a�� BRIX, Z(o.0 ( OF ��— � RI��!^: ( -- `- - ( | � ( ( ( TOTAL FEES� ___---_----___-_- ____- 0�O0�STf 1--AffDr� OFjy�82 MERIO #p200 IN5T' 6' FENCE TELE. o. IRF PED. \ 715.1 SUMP PUMP 715.3'_cf LOT 249 20' SAN. SEWER EASEMENT—i INSTR. 1020019782 5 � 11i W S 20"3242," ti� I o /RS I 7,-155.13 / tiC1 _ _n N 10' BRL� 1 l �� o IRS —716— \ x7124' 714.8' u, 715.2' LOT 247 v1 a? GARAGE m1 10' GAS LINE I 1 &� 25.7 EASEME47Y,- 7 INSTR. #0200197 1 �L; ,)—IRF- -IRF--- IRF _IRF CONC.N 20'00'50" E 15" WATER LINE EASEMENT S/W 3351 ' INSTR. 1020019782 CLYD� E DRIVE 52' R/W _ NOTES, LEGEND, AND DWEWNG DETAIL SEE SHEET 2 FOR CURVE DATA, 30 0 30 GRAPHIC SCALE (IN FEET) HOUSE LOCATION SURVEY LOT 248 CANTER ESTATES SECTION THREE — PHASE l SHAWNEE MAGISTERIAL DISTRICT, FREDERICK COUNTY, VIRGINIA SCALE. • 1 JO'- I I DATE. MARCH 11, 2004 GREENWAY ENGINEERING 151 Windy Hill Lane Engineers Winchester, Vuginia 22602 Surveyors Telephone: (540) 662-4185 FAX- (540) 722-9528 _ www.greenwayeng. com Exhibit "D" /V VVI ' MARK D. SMITH No.002009 2291V SHEET 1 OF 2 w 16.3 ( I � ONCoCO 715.0'I 2 S70R LOT 248BRICK do FRAME 714.719558 SQ. fT.W DBASEMG GM 1 300 POSTED/FF--717.9 , IBF=709.0 x712.7'714.8' /35;BRL56 . 0 1 IRF�STNCONC. SN -SAC �L; ,)—IRF- -IRF--- IRF _IRF CONC.N 20'00'50" E 15" WATER LINE EASEMENT S/W 3351 ' INSTR. 1020019782 CLYD� E DRIVE 52' R/W _ NOTES, LEGEND, AND DWEWNG DETAIL SEE SHEET 2 FOR CURVE DATA, 30 0 30 GRAPHIC SCALE (IN FEET) HOUSE LOCATION SURVEY LOT 248 CANTER ESTATES SECTION THREE — PHASE l SHAWNEE MAGISTERIAL DISTRICT, FREDERICK COUNTY, VIRGINIA SCALE. • 1 JO'- I I DATE. MARCH 11, 2004 GREENWAY ENGINEERING 151 Windy Hill Lane Engineers Winchester, Vuginia 22602 Surveyors Telephone: (540) 662-4185 FAX- (540) 722-9528 _ www.greenwayeng. com Exhibit "D" /V VVI ' MARK D. SMITH No.002009 2291V SHEET 1 OF 2 w MEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Heid in the Board Room of the ]Frederick County Uministration Building, 107 1V. Kent Street, Winchester, Virginia, or. August 20, 2002. PRESENT: James Larrick, Jr., Chairman, Gainesboro District; Thomas Malcolm, (representing Shawnee District);Dudley Rinker, Back Creek District; Lennie Mather, Red Bud District Robert Perry, Stonewall District; Theresa Catlett, Opequon District and Robert W. Wells, Member -At -Large STAFF PRESENT: Patrick T. Davenport, Zoning Administrator; Carol Huff, BZA Secretary CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. July 16, 2002 MINUTES The minutes for the July 16, 2002 meeting were approved by unanimous vote after a motion by Mr. Perry and a second by Mr. Wells. PUBLIC HEARING ACTION - APPROVED Mr. Davenport presented the background information and explained that when the building permit was obtained, a setback survey was not required based on the layout the builder presented. The single family dwelling that is the subject of the application was constructed in a location that would have required a setback survey if the initial layout had shown that. Since the applicant constructed the dwelling in a manner that was not consistent with the layout presented on the building permit, denial of this variance would be justified. Mr. Wells asked what constitutes a hardship in this case, and what would the consequence be if the application was denied. Mr. Davenport replied that "making a mistake" does not constitute a hardship and that if the variance was denied, the house would have to be modified to meet the setbacks. Frederick Co. Board of Zoning Appeals Minutes of July 16, 2002 Minutes Book Page 1154 Board members discussed the scenario that some of these types of situations may be done with idea that once the house is completed, surely the BZA would not require them to destroy it. Chairman Larrick recommended that they continue by opening the public portion of the hearing. Mr. Darren Foltz, of Greenway Engineering, was present to represent Manning & Ross Builders, Inc. Mr. Greg Bancroft, Vice President of Manning & Ross Builders, Inc. was also present to answer any questions. Mr. Foltz told the Board that Greenway Engineering had done all of the survey work for Manning & Ross Builders in the Sovereign Village Subdivision, and they had not had problems until now. He said they believe that a subcontractor may have "adjusted a few things on the lot" and that's how the mistake was made. When asked to clarify that statement, Mr. Foltz said that they think a subcontractor disregarded the stakes that were in the field. Board members asked how an eight -foot mistake could have been made, and at what point the building permit was obtained. Mr. Foltz stated that the house plan was "flipped" which resulted in reverse setbacks. Further discussion ensued regarding who was responsible for changing the original layout of the house, why had no one taken responsibility to make sure the house was placed the way it was supposed to be, and whether this really was a mistake or was perhaps done intentionally to increase the profit margin. Questions were presented regarding the `envelope' of the house and why flipping the design would create a change in the envelope. Mr. Bancroft came to the podium and told the Board that he thought what happened in this case was that someone may have run over the stake. He stated that he has built several hundred homes in this area and this was the first time he had ever been in front of the Board of Zoning Appeals. Mr. Bancroft acknowledged Mr. Wells' earlier comment on contractors disregarding setbacks on purpose but assured the Board that this was not the case. He admitted that an error had been made. He stated that in the future, if they do both the building restriction lines and have the automatic setback report, that will help when they pour the footers or build the wall. Mr. Bancroft said that he has seen builders purposely disregard setbacks but reiterated that they had not done that. Questions were raised as to how long Mr. Bancroft had been building houses in this area, who obtained the building permit, when was it discovered that a mistake had been made, and how many houses in the subdivision were set up so as to require a setback survey. Several Board members expressed their displeasure at the Board's being put in the position of being "the heavy" and needing to approve or disapprove something that was clearly someone else's mistake. Several more questions were posed as to why the plans were changed [flipped] after the building permit had been obtained and whether anything could be done to prevent this from happening in the future. There was no one present to speak against the variance request. DISCUSSION Frederick Co. Board of Zoning Appeals Minutes of July 16, 2002 2 Minutes Book Page 1155 Chairman Larrick told the Board that he was impressed with the fact that Mr. Bancroft's company had built hundreds of houses and this was the first time they had been before the Board of Zoning Appeals. Mr. Davenport said that anyone, whether they be from the public or a building firm, etc. could submit a letter to the Planning Department or Development Review and Regulations Subcommittee requesting stricter setback survey requirements. There was some further concern regarding possible legal ramifications that could occur if the Board reaches the point of "enough is enough" and actually denies one of these requests. The concern was that they will have to hear about all of the other ones that were previously approved. Chairman Larrick pointed out that the Virginia Supreme Court is very clear on this point and has ruled that each case is handled on a case-by-case basis and a decision on one case does not set a precedent for future cases. The Board's consensus on this application was that it did not appear to be intentional malfeasance; however, a very stern warning was issued to Mr. Bancroft to not appear before the Board again with a request like this. On a motion made by Mr. Malcolm and seconded by Mr. Wells, Variance # 13-02 was approved. The vote was unanimous; however, it is noted for the record that the decision was arrived at with `great prejudice.' There being no further business at hand, the meeting adjourned at 4:25 p.m. by unanimous vote. Respectfully submitted, James Larrick, Jr., Chairman Carol I. Huff, Secretary Frederick Co. Board of Zoning Appeals Minutes of July 16, 2002 3 Minutes Book Page 1156 .,��►� l�I.I�ili illill� � ��i' ���f 4 I * ON lip x s I Y �p iv Aa a