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BZA 11-16-04 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 November 16, 2004. PRESENT James Larrick, Jr., Chairman, Gainesboro District; Lennie Mather, Red Bud District; Robert Perry, Stonewall District; Theresa Catlett, Vice Chairman, Opequon District; Kevin Scott, Shawnee District; Robert W. Wells, Member -At- Large; and, Dudley Rinker, Back Creek District. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; and, Bev Dellinger, BZA Secretary j CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. OCTOBER 19.2004 MINUTES On a motion by Mr. Perry, the minutes for the October 19, 2004 meeting were unanimously approved as presented. Chairman Larrick asked the cut -off date for the next meeting and Mr. Cheran responded that November 24 is the cut -off date for the December 21" meeting. Mr. Cheran further stated that as of this date, there are no matters on the docket. PUBLIC HEARING (Tabled from the meeting of October 19, 2004) Variance Request 906 -04 of Richmond American Homes of Virginia, Inc., for a 4.1 -foot front yard variance for the corner of dwelling nearest Sesar Court. This property is located in Lynnehaven Subdivision, Section One, Lot 2, on the southwest corner of Sesar Court and Farmington Boulevard. The subject property is identified with Property Identification Number 55K- 01 -01 -2 in the Red Bud Magisterial District. ACTION - VARIANCE DENIED Mr. Cheran stated that the applicant is requesting a 4.1 foot front yard variance, and the reason is a hardship. The location of the property is Lynnehaven Subdivision, Lot 2, Section One in the Red Bud Magisterial District. The property is zoned RP, the adjoining properties are zoned RP and the land use is residential. Since the Board of Zoning Appeals' October 19, 2004 meeting, the applicant has attempted to overcome the setback violation and has submitted a proposed plat for Lot 2, Section One that includes a 1,015 square foot outlot, shown as Exhibit "E" in the agenda packet. Mr. Cheran further stated that staff would note that this proposed plat is not within the purview of the Board of Zoning Appeals as a submitted plat is a subdivision exercise. Any appeal to the subdivision ordinance shall be submitted in accordance with Subdivision of Land, Chapter 144 -5 of the Code of Frederick County and must be reviewed by the Board of Frederick Co. Board of Zonin Appeals Minutes of November 16, 204 Minute Book Page1257 Supervisors. Mr. Cheran stated that he would go into the background unless the Board wanted to pick up from last month; the agenda packet has not changed except for Exhibit "E ". is Chairman Larrick stated that there are two members present today that weren't present at the last meeting and they may have some questions of staff, or the applicant could come forward. As the Board members did not have any questions, Mr. Ian Williams came forward to speak on behalf of Richmond American Homes. Mr. Williams thanked the Board for tabling this application to enable them to explore an alternative without the necessity of the Board having to make a determination. They are still looking at those possibilities, and Mr. Williams understands that this Board does not have the authority to do what might be done alternatively. They thought they would go forward because if this Board does grant the variance, they don't have to do all that. What was said by Mr..Cheran earlier, that they had looked at putting an outlot to avoid the setback problem on the street, so that the distance would not apply to this lot, is one alternative. What they would like to do today is address the situation why they think that there is a hardship and why there is not a barrier in the consideration of that hardship in the self- inflicted argument that staff has set forth in its report. Mr. Williams stated that first of all, it is important to follow the progress of this application originally with the building permit that came through. IMr. Williams has three documents within the file that he thinks pertain to their very strong suggestion that a variance is appropriate. The first is the original plat of survey submitted with the application that was considered by the Building Department in granting the building permit. Secondly is the County's generated report that shows a compliance with the setback requirement. And finally is the building permit itself, obviously which would not have been issued if the County didn't think they were in compliance. Mr. Williams handed out these documents to the Board members. Mr. Williams stated that on the survey, he highlighted the front setback which is 49 feet, the side setback shown as 32 feet, and the side which has to be ten feet is shown as 13, and the backyard is shown as 48 feet. When the County entered that, shown on the second sheet handed out, it entered correctly 49 feet on the front, 13 on one side and 48 on the back, but they entered for some reason, 48 on the side. That was done, not by the applicant, not by Charles P. Johnson & Associates, not by Richmond Homes, but by the County. Mr. Wells asked Mr. Williams if on the back side, where the deck is, isn't that 29 feet instead of 48 feet. Mr. Williams said yes, that's right. Mr. Williams said that Mr. Wells' observation is a point well taken and one that he is trying to endeavor to make, that it got picked up incorrectly by the County, not entirely through the fault of the owner. Their position is that the building permit got issued based on the plat, based on the County's report, which indicates that the plat is compliant with the setback requirements. Chairman Larrick stated that in the Board's agenda they have the building permit application that was signed by someone from the applicant's side, he could not make out the signature. This is the one that has the back listed as 36 feet, which is his understanding is the actual concern. In other words, if it had been built at 36, they wouldn't be here today. Mr. Williams stated they were under the impression that it was the distance between the house and Sesar Court, not to the back line. Frederick Co. Board of Zoning Appeals Minutes of November 16, 2004 Minute Book Page 1258 Chairman Larrick stated they listed it as 25 feet by the Department, but it was going to be at 36 feet. To Chairman Larrick's understanding, the mistake the Department might have made was, they were viewing it as a side yard that had 25 feet rather than a front yard because it's on a corner. But if they built it the way that the permit said it was going to be built, it would have been within the building restriction line on all four sides. Mr. Perry stated that it looked to him that if they had positioned the footprint on the lot according to the setback report that Mr. Williams just handed out, we wouldn't be here. Mr. Williams stated that there is a second phase and this is where the County comes into the ingredients that have compounded the problem. It's not totally that the owner made the error; the owner did make an error and concedes that he made an error and this is certainly a blinking amber light to all of you as it was to the staff that it is a self - inflicted problem for which a variance should not lie. The question arises, and this is the issue this afternoon and the heart of their request, is that where the County comes along at a phase that could have saved it, where there was an inspection for the footings and an inspection for the foundation, where they could have saved it at that juncture and themselves wrote it down wrong, on the second report that Mr. Williams gave them. Chairman Larrick stated that the dimensions are the same on Mr. Williams' copy as they are on the one in the agenda packet; the agenda packet copy was signed by someone on behalf of the applicant. Mr. Williams said that it was signed after looking at this plat, which was not correct. Chairman Larrick asked which plat is that. Mr. Williams responded the one dated January 17, 2003. Chairman Larrick asked if that was the one Mr. Williams just gave them and he said yes. Chairman Larrick stated that the County didn't prepare that plat and Mr. Williams said no, but the County took specifications that were incorrect from that plat. i Chairman Larrick said that was January of 2003 and Mr. Williams said the County took those specifications in June of 2003. Chairman Larrick stated it was still calling for 36 and it wasn't 36, it was 32. Chairman Larrick further stated that all this is, is a permit, permitting the building to be built assuming the building is built with these dimensions. Mr. Williams stated that the County has an inspection which is, one, to look at the footings and the other to look at the foundation. They wrote down that those inspections appeared to indicate that the plat was compliant, and it was not compliant. Chairman Larrick asked Mr. Williams if he was saying it's the County's job, not the builder's job. Mr. Williams stated no, he is saying that both parties have a role in what's going on that ultimately leads to the building permit and the construction of the premises within that permit. Mr. Williams is saying that had the County looked at the plat, it would have seen that the actual distance to Sesar Court was non - compliant. But they wrote it down that it was. Mr. Williams stated what he is asking for is a comparative negligence test as opposed to the owner gets all the responsibility. Frederick Co. Board of Zoning Appeals Minutes of November 16, 2004 Minute Book Page 1259 Chairman Larrick stated that on top of all this, there is the Cochran case. Mr. Williams stated he knows, but he doesn't know if this argument is not inconsistent with that. Chairman Larrick asked Mr. Williams if he is denying that the house could be built on that lot and that the effect of the zoning ordinance is to interfere with all reasonable uses of the property. Mr. Williams responded that the house could be built on that lot. As to the rest of the question, Mr. Williams started to respond when the speaker system malfunctioned. It was several minutes before communication continued. Chairman Larrick reiterated his question, is Mr. Williams denying that there is some reasonable use that can be made of that property. Mr. Williams asked if he meant besides the house that is there. Chairman Larrick stated that to him the issue in the Cochran case and what the Supreme Court was saying to them was first of all, undue hardship basically means that the effect of the zoning ordinance is that no reasonable use can be made of the property. It doesn't look into what was already done and quite frankly, based on what they have in front of them, it's quite clear that some house could be built on that lot. And then the Supreme Court says that as soon as they decide that some reasonable use can be made of the property, the Board loses all power to grant a variance. Chairman Larrick stated that he would agree if Mr. Williams was to say it's a harsh rule. Mr. Williams stated that getting to that point may be the challenge. Mr. Williams further stated if you conclude that there is some reasonable evidence that there is some use of that land therefore, you don't even get to the discretionary decision - making authority, then he thinks Chairman Larrick is correct. But the question is, he believes they do have discretion before they get to that point, to decide what that test is; what are the facts that they need to discern. In the Cochran case, they weren't alleging that the county had anything to do with it. Mr. Williams further stated that he thought they could take the position that the 110 construction of a $400,000 house four feet off, that nobody passing by would note, you wouldn't be able to tell that the house is in the wrong place or is in any way non - compliant. If you take your four prong test of whether to grant a variance and work backward: does the character of the district change, no, you can't tell; would the variance be of substantial detriment to the adjacent property, no; and, is the hardship not shared generally by other properties, no, it's not. Chairman Larrick asked Mr. Williams if he was saying that the fact that it's on a comer makes it different from the other lots on the street. Mr. Williams stated that there is a two front yard test. Chairman Larrick said right, but any comer lot is going to have the same two front yard test. But Mr. Williams stated he did not know if it automatically plugs itself in and Chairman Larrick stated he thinks it does. That's the heart of what created the problem in the first place — it's on a comer. Mr. Perry asked if the engineer who prepared this knew what the normal setbacks are for a corner lot. Mr. Williams responded that the engineer who originally prepared that is not even involved in it. Mr. Perry asked if that is not where it started and Mr. Williams stated it probably is. Mr. Perry asked how you can hold the Frederick County Building Inspector responsible for that. Mr. Williams stated he is not saying that the building inspector is solely responsible. He is saying they were involved in the mix that allowed this thing to keep bouncing along far beyond what would have been a reasonable opportunity to move it at the footing stage or at the foundation stage before they had done everything that got done. Mr. Perry asked if there was a written responsibility in the building inspector's list of duties to check those items over and above whether the footings were being put in the correct depth or the correct amount of rebar. Is it the inspector's responsibility to go out there with a transit and check the corner pins to be sure they're in compliance? Mr. Williams stated that all he knows is this: that in the building permit, when you look at that, it does have the checklist for those Frederick Co. Board of Zoning Appeals Minutes of November 16, 2004 Minute Book Page 1260 inspections. But more importantly, for the point that Mr. Williams is trying to make, the description of the print -out document from the County is a setback report. The County picked up, looking right at the same plat you're looking at, 32 feet and ignored it. Mr. Perry asked Mr. Williams if he was talking about the document that Mr. Perry had in his hand and Mr. Williams said yes. Mr. Perry further stated if the building had been built within those constraints, it would be compliant. Mr. Williams stated that the plat was already in their hands when they did that: that's the argument he's trying to make. The County had that when they wrote down, you're in compliance, you don't have to worry about it. The County at that juncture said don't worry about it, we've looked at your plat and you're in compliance and we're putting these numbers to show you're in compliance. But the plat they were looking at was wrong. Ms. Mather asked Mr. Williams where the numbers come from, on the setback report. Mr. Williams responded the County got those numbers from the plat that he just gave to the Board. Mr. Perry asked how different numbers got on the building permit that's signed. He further stated that his understanding of the last time they met, the County did in fact realize that there was a mistake and they wrote on the building permit in hand the correct numbers that were required. Mr. Williams stated he didn't think that was until the house was already up. Mr. Perry asked how you would have built the house without the building permit. Mr. Williams stated that the building permit that they have is dated July 29` The Board members concurred that's the date they have, the one that shows it's going to be 36. Chairman Larrick stated there was handwritten in there the 25 which was incorrect, it should have been 35. But 36 would have still been in compliance if they had built it based on this permit, it would have been compliant. They went four feet beyond what the permit said they could go. I Mr. Williams stated that the Board pointed out one error, but there were multiple errors. Chairman Larrick said he's going back to the initial issue that his belief that the Cochran case says if something can be built there, the Board stops listening at that point. Chairman Larrick stated they do not have the power to grant a variance. Mr. Williams stated one thing is for sure - nothing can be built there with what's on there now. Chairman Larrick stated something can be built there, but something would have to be torn down first. Mr. Williams said he knows, but you can't build it now. But he thinks you have a right to take the property the way it is. Chairman Larrick said if that was true, anyone could just build any house and say it's built now. Mr. Williams said that would imply you have some automatic right to then change it. He's saying he has a different tact on that. The house got built with the mistaken understanding by the original engineer, coupled with a document from the County that initially, reading the plat they submitted, they were in compliance when they weren't and therefore, this structure got built. Because it's there, you can't come along and Frederick Co. Board of Zoning Appeals Minutes of November 16. 2004 Minute Book Page 1261 build something else. Mr. Perry asked who set the comers on the house. Mr. Williams stated he didn't know. Mr. Perry said if the applicant was responsible for setting the comers, then the 30.9 feet that the right front comer is, is not any one of the numbers. Mr. Perry asked why is that not the applicant's responsibility. What does the building inspector have to do with that phase of construction? Mr. Williams responded because the County does require an inspection on the footers and on the foundation. Mr. Perry said he would like to see where it says that it's the County Building Inspector's responsibility to take a transit out there and two or three men and check those corners. Mr. Williams asked what's the reason for the inspection? Mr. Perry said his understanding is, to be sure the footers are the correct width and depth and the stone was in them right. Mr. Williams asked why wouldn't the County have an interest at that juncture, and it seems to him it would be a great benefit to the County not to have a problem arise after a $400,000 house is built but rather at the level where they're checking the foundation. Mr. Perry said if that was their responsibility, the Inspection Department would have to be ten -fold the personnel that they have today. Mr. Rinker asked isn't that why we require a mid - construction survey? So that those points are pulled before the house is really constructed. It should be done when the walls are being placed. Mr. Perry stated he didn't believe you can expect any building inspector that goes to the number of footing inspections that he has in this County a day, and take time and set up a transit and pull the lines to be sure the corners are set correctly. Mr. Williams stated the fact that he doesn't have the time to do that doesn't mean that isn't part and parcel of what the County's reason for doing the inspection is in the first place is. Mr. Perry stated, as he said before, the inspector's inspection is to be sure that the footers are put in correctly, not in the correct place. Mr. Perry believes that's the owner/builder responsibility that those corners need to be put in, checked and rechecked. Mr. Williams said he thinks that the purpose of the inspection is placement and location. He thinks location is necessitous because that is the heart of the entire ordinance as far as where you put something. Mr. Perry stated if the County was going to get the profit off the sale of the house, it would be their responsibility. Mr. Williams stated he didn't know why the County was in the inspection business unless it needs to know where something is. Mr. Williams stated he didn't mean to beat a dead horse, but he doesn't think the County had nothing to do with the fact a plat that showed it was short, the first plat they got in showed it was short, and they wrote it down that it wasn't short. As a matter of fact, they had a document on file upon which they moved forward and did other inspections showing that it was wrong. Mr. Perry asked where they wrote it down that it was correct. Mr. Williams stated on the print out. Chairman Larrick said it was the application for a building permit. Vice Chairman Catlett stated she thinks what they wrote were the requirements. Vice Chairman Catlett asked if the applicant performed a wall check. Mr. Williams responded no. Mr. Bacon, on behalf of the applicant, stated yes they did and the information was given to the County. 0 Mr. Williams stated all they seek is for you not to have to get to the point of use; if you Frederick Co. Board of Zoning Appeals Minutes of November 16, 2004 Minute Book Page 1262 can get to the point that there was at the very least a County participation in the compounding of the problem that made it go a lot further than it otherwise would have gone. This problem would have been much easier to cure at a phase where there was nothing there except a footer or a foundation. Mr. Williams further stated that it wouldn't be contrary or inconsistent to say that while it's the duty of the owner to comport with the regulations of the County, the County could nevertheless put him into position at some point early in the phase as they suggest what converts this into a hardship through a mistake or an incorrect entry, or both. Chairman Larrick asked if there was anyone else present to speak, in favor of the appeal, and no one responded. He asked if anyone was present to speak against the appeal, and no one responded. Chairman Larrick closed the public part of the hearing. Chairman Larrick asked if any member of the Board had any questions for the Department. Mr! Rinker asked when the subdivision was originally approved and the lots were laid out, were the setbacks put on the plat at that time and were they correct. Mr. Cheran stated they were !put on at that time and they were correct. Chairman Larrick asked if Mr. Cheran knows of any code or ordinance that puts the responsibility on the inspectors as the buildings are being built to take the responsibility for compliance on the setbacks. Mr. Cheran responded that is the responsibility of the party who applied for the permit. Also, these are sealed copies from surveyors or engineers in the Commonwealth of Virginia, and we don't accept it unless they are sealed. He's putting his seal on this and verifying it's right. The only thing the building inspectors are looking for is that the footer or the wall is built to specification in the Building Code. DISCUSSION Chairman Larrick stated that he believes the Cochran case applies in this particular application. Even the Virginia Supreme Court makes reference to the desires of the owners, supported by careful planning, to minimize harmful effect, probable aesthetic improvements to the neighborhood, probable increase in tax value, greater increase in expense for the owners if it's not granted. None of that is any more viewed as a reason to grant a variance. The threshold question for them is whether the effect of the zoning ordinance upon the property as it stands interferes with all reasonable beneficial uses of the property and if the answer is no, the BZA has no authority to go any further. Chairman Larrick stated he didn't believe that the effect of the zoning ordinance in this case prevents all reasonable uses of this property. What happened here is, the house was built and it was non - compliant; it doesn't mean something couldn't have been built on that property. And if that is something that anyone else agrees with, then that's it. They don't have any authority to go any further. Mr. Rinker asked if it was tabled last time because of some possible boundary line adjustment. Chairman Larrick stated he thought there was some hope that a lot of property could maybe be donated to the Homeowners Association. In effect, there was an attempt to redefine that so it wouldn't be a front yard, it would be a side yard and it would have been in compliance. But apparently, that didn't work. Mr. Cheran stated that this Board cannot take any action on that, it has to be Frederick Co. Board of Zoning Appeals Minutes of November 16, 2064 Minute Book Page 1263 through the Board of Supervisors. It's a subdivision ordinance requirement. Mr. Perry stated that based on the material that has been presented, he moves for denial of the variance. Mr. Rinker seconded the motion and it passed unanimously. NEW BUSINESS Mr. Cheran stated that he has a Memorandum from the County Administrator, which he handed out to each member, for them to disclose their real estate holdings. Tlie form is due to the Administrator's office by January 15, 2005. Mr. Cheran also told the members that we have a prospective replacement for Chairman Larrick, who will be leaving the BZA as of December 31, 2004. As there were no other items to be discussed, the meeting adj at 4:10 p.m. by unanimous vote. Respectfully submitted, n U v 11 Jame l arri, Jr., JJ Chairman O— Bev Dellinger, Secretary Frederick Co. Board of Zoning AppealsMinutesofNovember16, 2R4 Minute Book Page 1264