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HomeMy WebLinkAboutBZA 07-20-04 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on July 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. ABSENT: Kevin Scott, Shawnee District STAFF PRESENT Patrick T. Davenport, Departing Zoning and Subdivision Administrator; Mark R. Cheran, Interim Zoning and Subdivision Administrator; and, Bev Dellinger, BZA Secretary CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. APRIL 20, 2004 MINUTES is On a motion by Mr. Rinker and seconded by Mr. Perry, the minutes for the April 20, 2004 minutes were approved as presented. Chairman Larrick asked the cut -off date for the next meeting and Mr. Davenport responded that July 23` is the cut -off. Mr. Davenport further stated that as of today, there are no matters on the docket. Chairman Larrick stated that he believed all the Board Members had received a copy of a Supreme Court Opinion that came down from the Virginia Supreme Court. Mr. Mitchell, the Board's attorney, wanted to come and discuss this with the Board today; however, he is speaking at a seminar. Chairman Larrick further stated that it is important that the Board understands that the Virginia Supreme Court came down with a ruling in late April that has, in Mr. Larrick's opinion, dramatically reduced the Board's discretion in variance cases. Essentially, what the Virginia Supreme Court has said is that the threshold question for the Board of Zoning Appeals is, can any house be built on a piece of property. The decision that went to the Virginia Supreme Court actually involved three separate cases. Chairman Larrick stated that the first question is whether or not, if the zoning rules are applied taken as a whole, do they essentially render a piece of property totally useless for any type of building? Not for any particular type of building, but the term the Court uses is all reasonable, beneficial uses of the property. The way the decision then reads is, if the Board can look at a piece of property and determine that there is a potential reasonable, beneficial useof that property, be it what the person's requesting in terms of a variance or otherwise, then the Board loses any authority to go any further. Once that threshold issue has been made, the Board cannot do anything else. Chairman Larrick again stated that the term the Court used is... all reasonable, beneficial uses of the Frederick Co. Board of Zoning Appeals Minutes of July 20, 2004 Minute Book Page /d- 4/ Page 2 property. The Court makes mention of the fact that the BZA is an administrative body, a creature of statute. The General Assembly prescribes the statutes for us and the Board can only grant a variance where... there is clearly a demonstrable hardship approaching confiscation as distinguished from a special privilege or a convenience sought by the applicant. Chairman Larrick remarked that the last variance the Board heard, if the Board had applied these rules to it, they would not have granted it. Chairman Larrick stated that he really didn't know if these rules had changed; the Court just made it more emphatic. The Court took these three cases, one from Pulaski, one from Virginia Beach and one from Fairfax, and combined them into one decision. Normally, when the Court does that, they're trying to make it clear that they're saying something and we are required to listen to them. Chairman Larrick asked if anyone on the Board had any questions or comments concerning this and Mr. Davenport stated that after the Board hears the scheduled variance request, Mr. Cheran can speak to this during the "New Business" portion of the meeting because he went to a Land Use Law Seminar last week. PUBLIC HEARING Variance Application #03 -04 of Dan Ryan Builders, Inc., for a 1.1 -foot rear yard variance for a residential dwelling. This property is located in Star Fort Subdivision, Section 4B, Lot 63, on the west side of Fortress Drive. The subject property is identified with Property Identification Number 54N- 2 -4 -63 in the Stonewall Magisterial District. ACTION -VARIANCE DENIED Mr. Davenport gave the background information. The property is located in the Star Fort Subdivision, Section 4B, Lot 63, located on Fortress Drive in the Stonewall Magisterial District. The property is zoned RP (Residential Performance) as is the zoning of all the adjoining properties and the uses are residential surrounding it. The applicant is requesting a 1.1 -foot rear yard variance for a residential dwelling. The plats establishing Lot 63 in Section 4B of Star Fort were approved on January 30, 2003, and this is labeled as "Exhibit A ". Dan Ryan Builders received a zoning approval for a single - family home on November 20, 2003, labeled "Exhibit B ". As part of this permit process, the applicant indicated the proposed setbacks for the dwelling to be as indicated in the report, which were 35.3' from the front, 102' from the left side, 10.4' from the right and 25.4' as a rear setback. The setbacks for a single- family dwelling on this lot size in the RP zoning district are 35' from the front, 10' on the sides and 25' rear. "Exhibit C" is a copy of the proposed house location where the building site plan shows the intended location of the dwelling. "Exhibit D" is the first setback report submitted by Marsh & Legge Land Surveying, which verified the footing foundation location. Instead of the second setback survey report, the applicant submitted a house location survey, labeled "Exhibit E ",illustrating the existing location of the dwelling as it sits now and also shows a rear setback encroachment of 1.1', which is related to the variance request. The applicant should have constructed the dwelling within the proposed setbacks as indicated on the building permit, and as the dwelling wasn't constructed according to the proposed setbacks, the rear setback violation resulted. A boundary line adjustment could be possible with the adjoining property to the rear to remedy this, but this was not a course of action chosen by the applicant. The applicant's failure to accurately construct a dwelling according to the information submitted on the building permit does not constitute a hardship in Staff s opinion. Therefore, denial of this variance would be justified. Frederick Co. Board of Zoning Appeals Minutes of July 20, 2004 Minute Book Page /Z'/d Page 3 Chairman Larrick asked if anyone had any questions at this time and there was no response. Chairman Larrick asked if there was anyone present to speak in favor of the variance. Mr. Jim Baker, Production Manager for Dan Ryan Builders for Winchester Division, approached the podium. Mr. Baker stated he received parts of the packet just described by Mr. Davenport. Mr. Baker further stated that he guessed his position on it is, there is no doubt that somebody on his end made a mistake. He has to believe that Marsh & Legge staked the house correctly, so either the concrete contractor was informed or instructed to do something slightly different by the Superintendent, or they just simply made a mistake and didn't form it correctly. Normally what is done, which obviously wasn't done in this case, is a wall check and they catch these kind of things much sooner than they did. Mr. Baker said their request would be that the variance be granted based on, what he is going to say is the "Letter C" of the letterhe received, 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 granting the variance. Mr. Baker further said it is over, obviously. It does very little, that he can see, to change the character of the community at all. It has no effect whatsoever on the grading; it doesn't create any kind of a drainage problem for the neighboring lots. It's simply a mistake that was made by somebody and he doesn't know who it is; Mr. Baker wasn't here then, but clearly a mistake was made. Going forward, rest assured, he has instructed his Superintendents to be doing wall checks and hopefully he'll never have to speak to a matter like this again. It did happen and they would ask that the Board consider it under "Letter C" of the staff conclusions. Chairman Larrick asked Mr. Baker if he understood the requirements - it's not that any one of them applies - you have to meet all three of the criteria. (Under Staff Conclusions, it 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.) Mr. Baker asked in order for the variance to be granted? Chairman Larrick replied, that's right. Mr. Baker said no, he didn't understand that. Chairman Larrick said it states and, not or, and you have to meet all the requirements. Mr. Baker said okay, then he misread the information. Chairman Larrick further stated that the Board's discussion earlier about the newest decision from the Virginia Supreme Court basically states if any house can conceivably be built on that tract of land, not the house you want to build, then that's as far as the Board 'of Zoning Appeals is supposed to go in their determination. The Board of Zoning Appeals cannot grant a variance unless it's determined first that there is no way anything can be built on the property, in which case there's a need to fashion some rules that allow for something to be built. Frederick Co. Board of Zoning ,Appeals Minutes of July 20, 2004 Minute Book Page /,,Vj Page 4 Mr. Rinker asked Mr. Baker if he had attempted to get a boundary line adjustment from the adjoining property owner. Mr. Baker responded no and Mr. Rinker asked if there was a reason they had not done that. Mr. Baker said his feeling is that they made a mistake and he really didn't want to do that first because they have to go to three or five different people and say we messed up and we need you to fix it for us. Mr. Baker said he wanted to go through this process first so they could handle it on their end. Because of the fact it was their mistake, they didn't really want to go to another buyer that is not even one of their customers and try to get them to buy into letting them do a property line adjustment to fix their mistake. Mr. Rinker stated that in the beginning this house could have been built on that property without having to have a variance. Mr. Baker said yes, absolutely, but for whatever reason it got twisted and moved back that one foot. It clearly fit within the building restriction line when it was originally sited. Mr. Rinker said it didn't have much to spare and Mr. Baker said no it didn't, it was awfully tight. Mr. Rinker stated that tells him it's going to be a tight fit so that's why you have to have that second survey once the walls are up. Mr. Baker stated that he agrees with Mr. Rinker. The Superintendent in charge at this point messed up and it's as simple as that. He should have done the wall check and he didn't. Had he done it, they would have discovered it at tliat point and wouldn't have a house sitting on top of a foundation. Chairman Larrick asked Mr. Baker what he would have to do to correct the problem, assuming that a) the Board can't grant a variance and b) they can't get any type of relief from the neighbor. Mr. Baker stated they would have to cut out part of the foundation and re- engineer something to carry that point load on that corner of the house. They'd have to cut out, he doesn't know how far back, presumably four to five feet, depending on what the engineer would tell them and in essence put a jog in that wall is the only thing he could think of to do. That's the only way to get that wall back within the building restriction line, is to cut a section of it out, and then they'd have to put some other type of structural beam inside the house to carry those floor joists which wouldn't have that wall to sit on anymore. Mr. Rinker asked if the cantilever would have to be addressed also. Mr. Baker responded it would have to be addressed by an engineer, which he is not, but had many, many homes where that's been done. They have houses now where they've got two to three -foot cantilevers on the back. Mr. Rinker asked about the cantilever being over the setback. Mr. Baker said he thought he was allowed a cantilever as long as the structure wasn't within the building restriction line. Mr. Davenport stated no, not a cantilever, which is decks. Mr. Baker said okay, that's another can of worms. Mr. Davenport stated if Board members will look to the photograph included in the agenda, they can see it's cantilevered from the second floor but this cantilever extends all the way to ground level and basically the little jog outward is in the encroachment. It's not just the cantilever that would really need to be modified, it's the entire piece from the second story down. E Frederick Co. Board of Zoning Appeals Minutes of July 20, 2004 Minute Book Page i Page 5 Ms. Mather asked if it's the cantilever, not necessarily the foundation, that has to be within the setback restrictions and Mr. Davenport responded yes. Chairman Larrick asked if anyone else wished to speak in favor of the variance and there was no response. He then asked if anyone was present to speak against the variance and again, there was no response. Chairman Larrick closed the public part of the hearing. DISCUSSION Chairman Larrick stated that technically, the mere fact they were able to get a building permit is an indication that a house could be built there. Basically, there was no room for error at all on this one, as indicated on the building permit, but it does show that a house could be built there. Ms. Mather asked at what point this mistake was discovered. Mr. Davenport responded it was brought to Staffs attention during the second setback survey. Mr. Perry asked if the surveyor brought it to Staffs attention and Mr. Davenport said yes. Mr. Perry asked if that was a requirement of them. Mr. Davenport responded yes, when the survey standards are required, will have to meet the survey setback reports, the second report will have to be satisfactory before they would get a Certificate of Occupancy. Ms. Catlett asked if that second report was not a wall check. Mr. Davenport said the zoning ordinance calls it the mid - construction survey and that's generally what everyone refers to as a wall check. Mr. Davenport further stated that it really shouldn't be done at the very last minute, it's supposed to be done when the framing is up. Ms. Catlett asked if it was done at that time and Mr. Davenport stated no, it was just brought to Staff s attention when the house was finished. The wall check was towards the end instead of in the middle. i Ms. Mather asked if the owner had received a letter from the ;engineering company saying that there's a problem. Mr. Davenport responded no, the first setback report was when they go put the stakes in the ground to show the builders where to build and then they would go back the second time to locate what was built. But at this point they located what was built that was practically finished. Ms. Catlett asked if they failed to comply with the County requirements and Mr. Davenport stated that as far as calling it mid - construction, it certainly was not a mid - construction report, but not too many people do it at mid - construction. Mr. Rinker asked if for County ordinances, mid - construction is just a target point and it's not required at that point. Mr. Davenport responded it's not required, but it says in the ordinance, mid - construction when the framing goes up. Generally, the idea of mid - construction is if you get the framing up and you do a wall check, then it may not be too late to modify it. Ms. Catlett stated that it amazes her how many builders will not spend the couple hundred dollars to get the wall checked when they know they're this close and then continue to build. Frederick Co. Board of Zoning Appeals j Minutes of July 20, 2004 Minute Book Page / ys Page 6 Mr. Perry made a motion to deny the variance request and Mr. Rinker seconded the motion. The motion passed by unanimous vote. NEW BUSINESS Mr. Davenport told the Board members that this Friday, July 23` is his last day as Zoning and Subdivision Administrator with Frederick County. Chairman Lamck asked where he is going and Mr. Davenport responded he's going to work for VDOT. Mr. Davenport introduced Mr. Mark Cheran as the Interim Zoning and Subdivision Administrator, appointed last week by the Board of Supervisors. Chairman Larrick stated that he had always found Mr. Davenport's information very helpful to the Board and they will miss him. All the Board members wished him well. Mr. Davenport stated that when Mr. Cheran went to Arlington for a Land Use Law Conference last week, he got some good information. Mr. Cheran discussed the three cases which were combined into one on which the Court made their ruling. Mr. Cheran further stated that in some jurisdictions, not ours, their BZA administers their special use permits. He gave the Board members a brochure from the conference. The Board members discussed this new ruling and what it will mean in terms of their ability to grant variances in the County. The consensus of the Board is that even though the construction market is so strong right now, it is no excuse to be making these mistakes and then coming to the Board to grant variances. As there were no other items to be discussed, the meeting adjourned at 4:10 p.m. by unanimous vote. Respectfully submitted, James L rick, Jr., Chairman 1 AV , _NFL Ll Frederick Co. Board of Zoning Appeals Minutes of July 20, 2004 Minute Book Page /Zqy