BZA 10-19-04 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
October 19, 2004
3:25 p.m. CALL TO ORDER
1) Determination of a Quorum
2) Minutes of July 20, 2004 and Minutes of Executive Session of August 24, 2004
PUBLIC HEARING
3) Appeal Application #05-04 of Dianne Lasky, to appeal the decision of the Zoning
Administrator in the administration of the Zoning Ordinance pertaining to lot size in the
RA (Rural Areas) Zoning District. This property is located at 7221 Middle Road, and is
identified with Property Identification Number 83-A-12 in the Back Creek District,
4) Variance Request #06-04 of Richmond American Homes of Virginia, Inc., for a4.1 -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.
5) Other
FILE COPY
MEETING MINUTES
OF THE
FREDERICK COUNTY BOARD OF ZONING APPEALS
Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street,
Winchester, Virginia, on 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:
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 23rd 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 use of 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
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 BEARING
Variance Application 903-04 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 Staffs opinion. Therefore, denial of this variance would be justified.
Frederick Co. Board of Zoning Appeals
Minutes of July 20, 2004 Minute Book Page
response.
Page 3
Chairman Larrick asked if anyone had any questions at this time and there was no
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 letter he 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
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 that 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 he's 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.
Frederick Co. Board of Zoning Appeals
Minutes of July 20, 2004 Minute Book Page
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 Staff s attention during the second setback survey. Mr. Perry asked if the surveyor
brought it to Staff's 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, they 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.
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
Minutes of July 20, 2004 Minute Book Page
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 23rd, is his last day as
Zoning and Subdivision Administrator with Frederick County. Chairman Larrick 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 Larrick, Jr., Chairman
Bev Dellinger, Secretary
Frederick Co. Board of Zoning Appeals
Minutes of July 20, 2004 Minute Book Page
FREDERICK COUNTY BOARD OF ZONING APPEALS
EXECUTIVE SESSION
Held in the first floor conference room of the Frederick County Administration Building, 107 N.
Kent Street, Winchester, Virginia, on August 24, 2004.
PRESENT: James Larrick, Jr., Chairman, Gainesboro District; Dudley Rinker, Back Creek District;
Lennie Mather, Red Bud District; Theresa Catlett, Vice Chairman, Opequon District;
and, Kevin Scott, Shawnee District
ABSENT: Robert Perry, Stonewall District; Robert W. Wells, Member -At -Large.
STAFF
PRESENT: Eric R. Lawrence, Director of Planning; Mark R. Cheran, Zoning and Subdivision
Administrator; and, Diane Walsh, for Bev Dellinger, BZA Secretary
CALL TO ORDER
The meeting was called to order by Chairman Larrick at 3:30 p.m. Mr. Rinker made a
motion that the Board go into Executive Session, and the motion was seconded by Vice Chairman
Catlett. The vote was unanimous.
Mr. Rinker made a motion that the Board come out of Executive Session, stating that
there was nothing discussed in the Executive Session that the Board was not authorized to discuss.
Mr. Scott seconded the motion. The roll call vote was as follows: Mr. Rinker, aye; Mr. Scott, aye; Ms.
Catlett, aye; Ms. Mather, aye; and, Chairman Larrick, aye.
The meeting was adjourned at 4:15 p.m. by unanimous vote.
Respectfully submitted,
James Larrick, Jr., Chairman
Bev Dellinger, Secretary
Frederick Co. Board of Zoning Appeals
Executive Session of August 24, 2004 Minute Book Page
APPEAL APPLICATION #05-04
DIANNE LASKY
q Staff Report for the Board of Zoning Appeals
w ° +
Prepared: September 28 2004
� e Staff Contact: !Mark R. Cheran, Zoning .Administrator
This report is prepared by the Frederick County Planning Staff to provide information to the
Board of Zoning Appeals to assist them in making a decision on this request. It may also be
useful to others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
October 19, 2004 - Pending
LOCATION: The property is located at 7221 Middle Road
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER(S): 83-A-12
PROPERTY ZONING & USE: Zone:
Land Use
ADJOINING PROPERTY ZONING & USE:
Zone:
Land Use:
Zone:
Land Use:
Zone:
Land Use:
Zone:
Land Use:
RA (Rural Areas) District
Residential
North: RA (Rural Areas)
Residential
West: RA (Rural Areas)
Residential
South: RA (Rural Areas)
Residential
East: RA (Rural Areas)
Residential
APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Zoning
Ordinance pertaining to lot size in the RA (Rural Areas) Zoning District.
REASON FOR APPEAL: Applicant is requesting consent to create a lot that is one and three
quarters of an acre rather than the required two acres in the RA (Rural Areas) Zoning District.
Applicant has attempted to purchase an additional one quarter acre from adjoining property owners
without success.
Appeal Application #05-04, Dianne Lasky
September 28, 2004
Page 2
STAFF COMMENTS: The applicant is appealing the decision of the Zoning Administrator in the
administration of the Frederick Zoning Ordinance as to lot size in the RA (Rural Areas) Zoning
District. The applicant is requesting to create a parcel from a family division which would result in
the creation of a lot less than two (2) acres in size. Section 165-54 B of the Frederick County Zoning
Ordinance allows the creation of family lots as small as two (2) acres. Furthermore, Section 165-53
of the Frederick County Zoning Ordinance states that the minimum lot size in RA Zoning District
shall be two (2) acres in size.
STAFF CONCLUSIONS FOR THE OCTOBER 19, 2004 MEETING: Staff is requesting to
affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning
Ordinance, Section (s) 165-53 & 54 B pertaining to minimum lot size and family division in the RA
(Rural Areas) Zoning District.
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08/19%2004 11:26 54066b63Sb t—HLD Uu �°LiaobNINU J
APPLICATION FOR APPEAL
IN THE
COUNTY OF FREDERICK, VIRGINIA
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SEP 7 2004
FREDERICK COUNTY
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I.. The applicant is the owner other .1 . (Check one)
2. APPLICANT: OCCUPANT: (if different) \\
NAME: ,�t,n�►c_ ` Y s NAME:�e,� ale
ADDRESS ADDRESS: Z.�-i, •���� °��
TELEPHONE: q'S5-��1 TELEPHONE:
3. The property is located at (give exact directims and include State Route numbers)
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6. The exist g zoning of the property is: C."IA �re�
7. The existing use of the property is: 'Ce.SIc�t-n�.Y�
8. Adjoining Property:
Zp G
North
East�'e A
South 1t A (es,�,�.,�C•Y� A
West At 'F cc.S4ec "xk
9_ Describe the decision beiog appealed. (Attach a copy of the writtendecision.)
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10. Describe the basis of the appeal, indicating your reasons) for disagreeing with the decision.
(This may be provided on s�eeppara`te- sheet.) `I
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11. Additional comments, if any:
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12. The following names and addresses are all of the individuals, firms, or corporations owning
property adjacent to the property for which the appeal is being sought, including properties at the
sides, rear, and front of (across street from) the subject property. (Use additional pages if
necessary.) These people will be notified by mail of this application: (Please list Property
Identification Number.)
NAME
Hawkins, Carroll and Mary
See additional map, page 1
Address
7189 Middle Road, Middletown VA 22645
Property ID # 83-A-7 Rec # 24698-1
Hawkins, Carroll and Mary
See additional map, page 2
Address
7189 Middle Road, Middletown VA 22645
Property ID #83-A-7 Rec # 24698-2
Hahn, Peggy O
See additional map, page 3
Address
102 Rid ecrest Ct., Winchester VA 22601
Property ID #83-A-11 Rec # 24703-1
Hahn, Robert Jr. and Gail
See additional map, page 4
Address
7011 Middle Road, Middletown, VA 22645
Property ID #83-A-11 B Rec # 27722-1
Klein, Casey G.
See additional map, page 5
Address
123 Minebank Road, Middletown, VA 22645
Property ID #83 -A -12A Rec # 35856-1
Cirrani, Thomas and Janet
See additional map, page 6
Address
121 Minebank Road, Middletown, VA 22645
Property ID #83-A-1 2D Rec # 36186-1
Donatoni, Susan
See additional map, page 7
Address
7219 Middle Road, Middletown, VA 22645
Property ID #83 -A -12F Rec # 40734-1
See Location map, page 8
Address
ProDertv ID # 1
Address
ID #
--Property
Address
Property ID #
Address
Property ID #
Address
Property ID #
08/19/2004 11:26 5406656395 FRED CO PLANNING DEP PAGE 08/11
AG"EWNT
APPEAL # 05 —
I (we), the undersigned, do herebyrespectfally petition the Frederick County Board of Zoning
Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as
desczibed herein. I agree to comply with any conditions required by the BZA.
I authorize the members of the BZA and Frederick County officials to go upon the property
for site inspection purposes.
I hereby certify that all of the statements and information contained herein are, to the best of
my icaowledge, true.
SIGNATURE OF APPLICANT �s. --L DATE
SIGNATURE OF OWNER DATE
(if other than applicant)
-OFFICE USE ONLY-
BZA PUBLIC HEARING OF / 04/0 ACTION:
LiAPPEAL OVERRULED
on= iAPPEAL SUSTAINED SIGNED:
BZA CILAIRAMN
DATE:
Plc. O.Vmd Use APdImUv�+ADDN�Oo Fmml��PPEAL
yXopr� 01/140
Dianne _'Al. fas(y
1671 Loc(es _MiCCRoad-
Berryville, TA 22611i H1
September 2, 2004
To Whom It May Concern:
May I briefly introduce myself to you?
CSCjW,E f,
SEP 7 2004 .
FREDERICK COUNTY
I have been employed with Clarke County Public Schools since 1994 and I
lived with my sister and her family until 1996. Since then I have been renting in
Clarke County for the past eight years.
I am requesting permission to create a lot in the Rural Areas Zoning
District that would be one and three-quarters acres in size. This would leave my
sister and her family five acres. In my initial letter I indicated that I attempted to
obtain the additional one-quarter acre required from the neighboring properties
and I was not successful.
In preparing the information required with the application, I noticed that
property PIN 83-A-7 is under the two acre minimum.
Patrick Davenport, the previous Zoning Administrator, informed me that I
would need a perc done prior to submitting the application for appeal. Please
find the site and soil evaluation done by Greenway Engineering attached along
with a check for the two hundred -fifty dollar filing fee.
I look forward to hearing from you regarding the public hearing date and
time.
Sincerely,
Dianne M. Lasky
Enclosures
CC: Daniel and Kathleen Yoder
7221 Middle Road
Middletown, VA 22645
u
FREDERICK COUNTY
72
FEET
600 IIW ItlW �<W
RENSED: 10--OI-2002
BACK CREEK DISTRICT Q -3
SECTION CJ
;4
-. - -- - .-.___ .i
VARIANCE APPLICATION #06-04
RICHMOND AMERICAN HOMES OF VIRGINIA, INC.
Staff Report for the Board of Zoning Appeals
Prepared: September 28, 2004
Staff Contact: Mark R. Cheran, Zoning Administrator
This report is prepared by the Frederick County Planning Staff to provide information to the Board
of Zoning Appeals to assist them in making a decision on this request. It may also be useful to
others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
October 19, 2004 - Action Pending
LOCATION: Lynnehaven Subdivision, Section One, Lot 2, on the southwest corner of Sesar Court
and Farmington Boulevard
MAGISTERIAL DISTRICT: Red Bud
PROPERTY ID NUMBER(S): 55K-01-01-2
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 4.1 -foot front yard variance for the
corner of the dwelling nearest to Sesar Court.
REASON FOR VARIANCE: Hardship
Variance Request #06-04, Richmond American Homes of Virginia, Inc.
September 28, 2004
Page 2
TT lAT T.NTa. 'ivsion plats establishing LVtGi« Section oFT
ynnehavenam rr CONIENi e final subdL
Subdivision were approved on April 14, 2003, with building setbacks of 35'front and right side,
10'left side, and 25'rear. The recorded plat indicates this lot to be a corner lot located within the RP
(Residential Performance) Zoning District, as defined by Section 165-23 D of the Frederick County
Zoning Ordinance. The applicant received zoning approval for a single-family home, building permit
(#00881-2003), on June 2, 2003, as part of the permit process; the permit application indicated the
proposed setbacks for the dwelling to be constructed. The setbacks on the application indicated
proposed setbacks of 49' front, 36' rear, Wright side, and 13' left side. The Zoning Administrator
required a setback survey which identified a corner lot with setbacks of 35' front and right side,
10' left side, and 25'rear.
Section 165-23H (1) Frederick County Zoning Ordinance 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." Exhibit "A" is a sealed survey copy of the proposed house location/building plat that
depicts the intended location of the dwelling. The building setbacks on this survey show the setbacks
35' front, 25' right side, and 10'feet left side and rear. Exhibit "B" is a sealed survey copy of the
setback plat for this variance. This plat illustrates the existing location of the dwelling with setbacks
for a corner lot, with a front encroachment of 4.1'. Exhibit "C" is the recorded plat showing Lot 2 to
be a corner lot with setbacks. The portion of the dwelling constructed into the front setback is the
reason for the variance request. Exhibit "D" is a sealed setback survey with the minimum setback for
a corner lot.
STAFF CONCLUSIONS: The Code of Virginia, Section 15.2-2309(2), states that no variance shall
be authorized by the Board unless it fmds 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 constructed the dwelling within the proposed setbacks indicated on the
recorded plat and building permit. Since the applicant did not situate the dwelling within the
proposed setbacks, consistent with the information submitted with the recorded plat and building
permit, the subject front setback violation and subsequent variance application resulted. The
applicant's failure to accurately construct a dwelling according to the information submitted on the
recorded plat and building permit does not constitute a hardship. Therefore, denial of this variance
is justified.
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HOUSE LOCATION SURVE
LYNNEHAVEN
SECTION ONE
LOT 2
#500 FARMINGTON BOULEVARD
RED BUD MAGISTERIAL DISTRICT
FREDERICK COUNTY, VIRGINIA
WV
Le x 6:
00-10002.D WG
Exhibit "A"
Plotted: 4/29/04 13:13
CHARLES D. FARMER
,�,'}No. , 1724
/ 7 04o.g9' /� 642.67 13,9820
GS/ �/ x 6gsY90 yL� BF x
/ 6477445 qe 1 a • �� O.H.
WOOD
644G6,( G `rJ0 �� DECK
I pK �� CONC. O 651.67
`STOOP / FFs
•��. �\CONC.WAL 1
_7_ GS S 1
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..9 300.
�O A=60.05'
648.48
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o i
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0 x 650.73
48.82GS
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AA 649.53
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ItO
X
I§ 647.0'
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ALL EASEMENTS ARE RECORDED
IN INST.# 030007982 UNLESS
THIS PROPERTY LIES WITHIN A H.U.D. OTHERWISE NOTED.
DESIGNATED "C" FLOOD HAZARD AREA THIS PROPERTY IS ZONED RP
DETERMINED TO BE OUTSIDE A 500 YEAR
FLOOD PLAIN, AS DELINEATED ON COMMUNITY FINAL PROPERTY CORNERS HAVE
MAP NO. 510063 0120 B. DATED JULY 17, 1978. NOT BEEN SET.
WALL CHECK Drn. By : JJS FINAL SURVEY Drn. By : JJSRECERT Drn. By
Date : 1/21/04 Chk By : RTD I Date : 4/27/04 Chk By : JADd Date : Chk By
SURVEYOR'S CERTIFICATE
I hereby certify that the position of
all existing improvements on the above
described property has been carefully
established by a transit—tape survey and
that unless otherwise shown, there are
no encroachments and no title report
has been furnished.
Crj
Charles P. Johnson & Associates, Inc.
RAKM ExrNM tuDSrAMAR��IEeTs WRQ M
J99 PENDER DRIVE SUITE 210 FAIRFAI[ NRCINIA 22030 (703)785-7555
SILVER SPRING. YD FM(707)273-9595
Reference Scale File No.
INST.#
030007982 1" = 30' 02-561-72
/x 644.34
WOOD
641GSX/,,
��F� G-.-,
64 85
FENCE /
I
640.08
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/
CSX /' /
64585— _
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647.07
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5.48',IP.
Xv645.89
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/ 7 04o.g9' /� 642.67 13,9820
GS/ �/ x 6gsY90 yL� BF x
/ 6477445 qe 1 a • �� O.H.
WOOD
644G6,( G `rJ0 �� DECK
I pK �� CONC. O 651.67
`STOOP / FFs
•��. �\CONC.WAL 1
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..9 300.
�O A=60.05'
648.48
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0c 648.09
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X( GS
0 x 650.73
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GS
AA 649.53
X GS
ItO
X
I§ 647.0'
GS
ALL EASEMENTS ARE RECORDED
IN INST.# 030007982 UNLESS
THIS PROPERTY LIES WITHIN A H.U.D. OTHERWISE NOTED.
DESIGNATED "C" FLOOD HAZARD AREA THIS PROPERTY IS ZONED RP
DETERMINED TO BE OUTSIDE A 500 YEAR
FLOOD PLAIN, AS DELINEATED ON COMMUNITY FINAL PROPERTY CORNERS HAVE
MAP NO. 510063 0120 B. DATED JULY 17, 1978. NOT BEEN SET.
WALL CHECK Drn. By : JJS FINAL SURVEY Drn. By : JJSRECERT Drn. By
Date : 1/21/04 Chk By : RTD I Date : 4/27/04 Chk By : JADd Date : Chk By
SURVEYOR'S CERTIFICATE
I hereby certify that the position of
all existing improvements on the above
described property has been carefully
established by a transit—tape survey and
that unless otherwise shown, there are
no encroachments and no title report
has been furnished.
Crj
Charles P. Johnson & Associates, Inc.
RAKM ExrNM tuDSrAMAR��IEeTs WRQ M
J99 PENDER DRIVE SUITE 210 FAIRFAI[ NRCINIA 22030 (703)785-7555
SILVER SPRING. YD FM(707)273-9595
Reference Scale File No.
INST.#
030007982 1" = 30' 02-561-72
Ault -u' 0/z3/u'+ I I: uJ
VARIANCE PLAT
LYNNEHAVEN SUBDIVISION Exhibit "B"
SECTION 1
LOT 2
RED BUD MAGISTERIAL DISTRICT
FREDERICK COUNTY, VIRGINIA
C Charles P. Johnson & Associates, Inc.
MICS MEMS LAM9SCIPE AROfIECIS SAtYEM
3959 PERM MVE SURE 210 PAIRFAK MGM 51030 (70.3)785-7555
Associates SLYM S'RNG. MD FAx(703W3-8595
30 0 15 30 60
I _ o 11 q
SCALE 1" = 30'
EX. WOOD /
FENCE
i
�I
' 'EX. BSM' 1982 55 u' I
6RL• ENT.
tP
\1\ \\ STOOP
00 l
\ � 2
9� \
/5'
em-
'pig FSM•tigC
G goo,
A=60.05'
NOTES:
EX.
i
EX. CONC.
WALK.
�g2 fo
SESPR Rawl
I. THE PROPERTY OEUNEATED ON THIS PLAT IS LOCATED ON FREDERICK COUNTY TM 55K-1-1-2
THE PROPERTY IS CURRENTLY ZONED RP.
2. THE SITE IS SERVED BY EXISTING PUBLIC WATER AND SEWER SYSTEM.
THIS PROPERTY IS ZONED RP Scale File No.
Drn. By : KAK BUILDING SETBACKS:
FRONT: 35'
Chk By : HMF SIDE: 10' 1" = 30' 02-561-701
REAR: 25'
Exhibit "C"
i"1553
" E23.93'38'44
0
00
7"I 4
7.
17 5'
S 01'16
173.81
1
1 rte- i -rte-'� I ry ov-1U 7/-- E I 13'4649-
7M.- 55—((A))-206
LYNNEHAVEN, L. C. EASEMENTS SEE
DB. 843 PG 415 SHEET 13
FURIRE ZONE.- RP '
LYNNEHAVEN DR, USE- VACANT 15SANITARY `
SEWER EASEMENT
DPMINAGE �c8\7
EASEMENT
295.0 i
INGT
FARM
WARD
177. 0'N 48*'47" _
X376.03
20.2'
35'`8RL 4
IM
LOT 2
I� 13982 SQ. FT. �I
CO m� 2
�� of
J
1
r
i i U. tr j 86.0_7'
I
mla
W
00
DoT 1 j
I,
12551 SQ. FT.
I
--7
it
1
i i U. tr j 86.0_7'
I
�0I
15.0' `�
_JS' W 196.89'
--7
I
LOT 3
y/
13857 SQ. FT.
N 3844'07" W _
LLJ
ei
149.557
JO' BR[
Q:
LOT 4
13062 SQ. FT.
�.�
.N 70,
��BRC
4
OUTLOT ';4 "
SEE SHEET 1
TER
G 00`33" ' J 50 0 JPO
/ /20.7' I4g 59 ` p�
LOT 5 GRAPHIC SCALE
SEE SHEET 4 (IN FEET)
RNAL SUBDIVISION PLAT
L YNNEHA VEN
SECTION ONE
RED BUD DISTRICT — FREDERICK COUNTY VIRGINIA '
SCALE: 1" = 50' DATE: NOVEMBER 26, 2002 4
GREENWAY ENGINEERING
151 WINDY HILI, LANE
t711—Engineers WINCHESTER, VA. 22602
Surveyors TELEPHONE: (540) 662-4185
FAX: (540) 722-9528
Founded in 1971 www.greenwayeng.com
MARK D. SMITH
No. 022837
Vb-
�6NVAL Y y
yr
s
�
County of Frederick
Setback Report
PERMIT 1 - 2O03
Winchester VA 226O1
USBC: 1996
LIE0AGE%[,
' �
_ EXHIBIT "D"
AppLICA[I[W DA7E: 4/29/2003
Iuyu*wcE OATF-,;
`
IVY RE 6/O2/2003
-----------------------------------------------------------
OWNER NAME/ADDRE�S
SIT� AODRE3S �
---
- -----------
O]NTRACR]R NAME/ADDRESS
Richnmnd Ane/'ican H�mes of VA, Inc.
3701 Peod
nston 8vulevard
Faix`yax` VA 2203O
Lvnnhaven, Lot 2 O0O00
rnan��
_... ... ... __________________________________________________________
RE N.C(M.NT#41375 DEBIT7PTI[YA QF LDCATlW,
--------
TAX MAP NO., 55K 1 1 LOT/ 2 Eel1p","K'
SED1 ION8DG ND.,
SET-8ACKS�
����Ul PERMIT NO
OSTRICT� REID 8UO
FR01Ti 49' LACK:
36' Fll@OR-AIN: �
��8-OIVISION! LYNNHAVE@
RI0f[! 48' LEFT:
13' AREA� Senseny
ZONE! Residential Performance
[NNTR FRT�E
RI0f[t�K
G/E CUP NDSITE PLAN!.
DIREI�IONS 7D SITE/
Take Route 657, Left on C�annins Drive, Left on
_________ ------------
Farmington Boulevard,
Master Plan # 32-20O3
Map Book 205. A-1
�
----------------------------------------------------------------------
USE GROUP! UseGroup "R"
Residential USE CO0E, SineleFamily Doellins
SQ FEET! ----------------
CNTf.TYVIE, New
�
NA,RjRE/WRK: Single Family Duelling
_-_---_-----__-~--�____---__--�_---___---___----_-_-_-----_---__---_----_^__-------------_--
Setback' Rrpvrt
MIN.
* SE[BACKS * FROK7 35' * V. K 25'
* RIGHT 35,
+ LfFT 10' *
�
*
* *
*
*
* *
*
*
-------------------------------------------------------------------------------'-----'-
PERMIT FBE!
(---__-------_--------------------------------------/
/ SURVEYOR INFDRMATIO@
(
`
Charles D
(
FRONT:4g^8' BACK�35^8� (
( DATE OF3URVEY! 09/00/03
�13^9'
/
TDTAL R]E.."S:
<
_______--____-----_____-_-----------_-----__—___--
... __--____--_'_-
kE�] RED SIGNA7D��
Page l of APPLICATION FOR VARIANCE
IN THE
COUNTY OF FREDERICK, VIRGINIA
-OFFICE USE ONLY -
Variance Application No. t�-O
Submittal Date __V17 0
Fee Paid P
Sign Deposit es
Submittal Deadline
_ For the meeting of 86�
initials:
Sign Return Date:
MUST BE
TYPED OR FILLED
OUT
IN INK -
PLEASE PRINT
1. The applicant
is the owner
XX _
other
(Check one)
2. APPLICANT:
OCCUPANT: (if different)
NAME :.Richmond American Homes of_ NAME:
-----------
Virginia, Inc. -----------
ADDRESS 3701 Pender Dr., #200 ADDRESS
Fairfax, Va. 22030
TELEPHONE: 703-385-7555 TELEPHONE:
3. The property is located at (give exact directions and include
State Route numbers):
Red Bud Zlagisterial District, just north of Senseny Road, Lynnehaven Subdivision
Section One, Lot 2, on the southwest corner of Sesar Court and Farmington Blvd.
From Winchester take Senseny Road,St._Rt. 657 east to Channing Drive. Turn left
onto Channing dr. to Farmington Blvd. Turn left onto Farmington Blvd. Proceed to
intersection of Sesar Court.
4. The property has a road frontage of 202_13 —__feet and a depth
of ''"� feet and consists of 0.320985 acres. (please be
exact) **a depth of 110.82 ft. on the southwest boundary line, 183.26 ft. on the
southeast boundary line.
5. The property is owned by _Richmond American Homes of Virginia, Inc._
as evidenced by deed from QRDevelopment�_L.L.C_ recorded
LRF 030015326 (previous owner)
in no._ on page _ ________ of the deed books
of the Clerk of the Court for Frederick County. Attach a copy
of the deed.
Page 2 of 5
6. Magisterial District: REDBUD
7 .X�3_X X�Kaiit�IX sXXX�� 15Z�t r rsr krrs X�gY4�XX TAX MAP NO, 55K-01-01-2
8. The existing zoning of the property is: RP
9. The existing use of the property is: residential dwelling
10. Adjoining Property:
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 4.1 ft. front yard variance for the corner of the dwelling nearest to
Sesar Court
12. List specific reason(s) why the variance is being sought in terms of:
0 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
13. Additional comments, if any
USE ZONING
North
residential RP
East
residential RP
South
Residential RP
West
Residential 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 4.1 ft. front yard variance for the corner of the dwelling nearest to
Sesar Court
12. List specific reason(s) why the variance is being sought in terms of:
0 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
13. Additional comments, if any
page 3 of 5
14. The following names and addresses are all of the individuals, frons, or corporations owning
property adjacent to the property for which the variance is being sought, including properties at the
sides, rear and in front of (across street from) the subject property. (Use additional pages if necessary.)
These people will be notifd by mail of this application:
NAME Kathleen E. Zavatson & Joseph A. Zavatson
Address 103 Sesar Court, Winchester, VA 22602
Property ID# 55K -01-01H3
NAME Richmond American Homes of Virginia, Inc.
Address 3701 Pender Drive, 4200, Fairfax, VA 22030
Property ID# 55K-01-01-19
NAME Lynnehaven, L.L.C.
Address 112 N. Cameron St., Winchester, VA 22601
Property ID# 55-A-206
NAME Richmond American Homes of Virginia, Inc.
Address 3701 Pender Drive, 200, Fairfax, VA 22030
Property ID# 55K-011901-1
NAME
Address
Property ID#
NAME
Address
Property ID#
NAME
Address
Property ID#
NAME
Address
Property ID#
Page 4 of 5
15. Provide a sketch of the property (you may use this page). Show proposed and/or existing structures on
the property, including measurements to all property lines and to the nearest structure(s) on adjoining
properties. Please include any other exhibits, drawings or photographs with this application.
See plat prepared by Charles P. Johnson & Associates, Inc. attached
Page 5 of 5
AGREEMENT
VARIANCE #
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
SIGNATURE OF OWNER
(if other than applicant)
-OFFICE USE ONLY-
BZA PUBLIC HEARING OF A l ACTION:
-
DATE -
APPROVAL SIGNED:
BZA CHAIRMAN
DENIAL DATE: