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BZA 10-19-04 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 October 19, 2004. PRESENT James Larrick, Jr., Chairman, Gainesboro District; Lennie Mather, Red Bud District; Robert Perry, Stonewall District; Theresa Catlett, Vice Chairman, Opequon District; and, Kevin Scott, Shawnee District ABSENT: 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 CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. July 20, 2004 MINUTES and AUGUST 24, 2004 MINUTES OF CLOSED SESSION On a motion by Ms. Catlett, the minutes for the July 20, 2004 meeting and the August 24, 2004 minutes of the Closed Session were unanimously approved as presented. Chairman Larrick asked the cut -off date for the next meeting and Mr. Cheran responded that October 22nd is the cut -off. Mr. Cheran further stated that as of today, there are no matters on the docket. PUBLIC HEARING Appeal Application 405 -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 Magisterial District. ACTION -APPEAL DENIED Mr. Cheran gave the background information. This property and the adjoining properties are zoned RA and the land use is residential. This appeal to create or allow lot sizes less than two acres is not within the purview of the Board of Zoning Appeals. Any change regarding density or lot size within a Frederick County Zoning Ordinance is a legislative action, not an administrative action. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance in reference to Sections 165 -53 and 165 -54B Opertaining to the minimum lot size of family division in the RA areas zoning districts. Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 1248 Chairman Larrick asked how big the original lot is. He also asked if they are trying to use the family division statute. Mr. Cheran responded that is correct. The way the ordinance reads is that if you have a family subdivision, you can go as small as two acres in lot requirement if you have seven acres prior to the adoption of the ordinance, which was adopted ill 1989. Mr. Cheran further stated the minimal lot size for any lot that is not vested is two acres. In this case, the applicant wants to create a lot of one and three - quarters acres, which is not allowed under the Frederick County Zonin Ordinance. Staff would also add that any changes to that ordinance are under the purview of the Board of Supervisors. Chairman Larrick asked how large is the parent tract they're seeking to subdivide. Mr. Cheran responded he believed the parent tract is less than seven acres. Chairman Larrick said there is no way they could have a five acre - two acre tract and Mr. Cheran stated that is correct. Chairman Larrick stated that this is an appeal, not a request for a variance; therefore, the undue hardship provisions have no application here. The statute basically says the Board is to determine whether or not the Zoning Administrator's determination was correct. Chairman Larrick also pointed out that the statute requires a vote from a majority of the members of the Board. not the members present on the date of the meeting. This means in order for the appeal to be granted, four members, which is the majority membership of the total Board, would have to vote in favor of the appeal, even though there are only five members present today. Ms. Mather asked what Ms. Lasky's options are. Mr. Cheran stated that currently the only option would be to buy a larger piece of property to meet the two acre requirement in the RA district, or five acres. Chairman Larrick stated that in reality, the lots in the RA district are supposed to be five acres, and this is a specific exemption on allowing two acres within the family division. Mr. Cheran stated that is correct. Chairman Larrick asked if anyone was present to speak in favor of the appeal. Dianne Lasky approached the podium. Chairman Larrick reiterated that appeals are treated differently than variance requests and in order for the Board to grant her appeal, in effect overrule the decision of the Zoning Administrator, it is required that the applicant receive a majority vote of the membership of the Board. There are seven members of the Board and five members are present today, so a majority vote of the membership of the Board requires that there be four votes in the applicant's favor. Chairman Larrick stated that they are willing to proceed today, but the applicant would have a better chance if there were seven members there rather than five members. Chairman Larrick told Ms. Lasky that the Board would be willing to let her request the appeal be heard at the next meeting and hope there would be more members present. Ms. Lasky asked when the next meeting would be held and Chairman Larrick stated November 16` is the next meeting. Ms. Lasky asked if there was any information on her application that she may not have known about. Chairman Larrick stated again that the Board's only issue is whether the Zoning Administrator was correct in the application of the zoning ordinance. Ms. Lasky decided to proceed. Ms. Lasky stated that she does not have any additional information that is not in her application, but she would like to emphasize a couple of things. When she was putting together the Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 1249 packet, she noticed that property number 83 -A -7 has two buildings on it and it is less than the two acre minimum. Also, Ms. Lasky is certain that the ordinances are there for a reason. Ms. Lasky's sister and her family own six and three- quarters acres and she would build a small house on that six and three- quarters acres. Chairman Larrick asked Ms. Lasky if she had any information she would like the Board to consider as to whether or not she believes the decision of the Zoning Administrator was incorrect. Ms. Lasky responded no, she was sure his information is accurate and he knows his job a lot better than she does. All Ms. Lasky is trying to do is see if there is any lenience whatsoever because they're sisters, and because they lived together in the original farmhouse and worked on it to get it livable. Ms. Lasky certainly does not question the Zoning Administrator's decision in terms of the two acres and five acres. Chairman Larrick asked if Ms. Lasky understands that is the only issue before the Board — whether or not the Zoning Administrator was correct. Ms. Lasky stated that she guessed she did not know that it was that matter of fact. Chairman Larrick said it is very matter of fact, and also the fact that it is Ms. Lasky's sister is the only reason she would be able to do this in the first place. Ms. Lasky stated that she guessed she felt there was some hope or she wouldn't be in front of the Board today, $250.00 less. She asked what other kind of information would an appeal look at. Chairman Larrick stated that she is asking for an opinion on something that is not before the Board; however, occasionally there is a question whether a certain wording in an ordinance is being properly defined. Someone may come before the Board and argue that is not what the ordinance intended to mean although the Zoning Administrator might have given it a certain interpretation. Beyond that, Chairman Larrick cannot answer why the application was filed. Ms. Lasky asked why one of the adjoining properties was less than two acres. Chairman Larrick stated he could not answer that, but his guess would be that it probably was created before the zoning ordinance was written. Ms. Lasky stated that she did attempt to purchase a quarter of an acre, without success. Mr. Scott asked Ms. Lasky what prevented the purchase of a quarter of an acre. Ms. Lasky stated that one property owner wanted to make sure their kids had all the land when they grew up, and the other was farmland and the owner didn't want to go through all the red tape and survey. Ms. Mather asked Ms. Lasky how she came by the determination to come here— did somebody tell her this is where she needed to go. Ms. Lasky stated that Mr. Davenport told her and she had the pere done based on the information she received from him. Ms. Mather asked if she was given any other options except coming to the BZA and Ms. Lasky replied, none, other than the purchase of more land. Mr, Perry asked if there was any way to build another residence on the parent tract. Chairman Larrick stated that you're only allowed one residence per lot and Mr. Cheran responded that is correct. Chairman Larrick asked if an "in -law suite" would be an option and Mr. Cheran stated that it could not be more than 25% of the main structure. Chairman Larrick asked if anyone else was present to speak in favor of the appeal. Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 1250 Kathy Yoder approached the podium and stated that she is Ms. Lasky's sister. She stated that she did not come prepared because this isn't the kind of meeting she was expecting. They were under the impression that they could come and ask to have this possibly done in favor of Dianne, they didn't come with any understanding that it had to do with whether they were right or not about their five acres and two acres. They had no question about that, but they were under the belief that they could come and tell the Board she has a good perc, they're only one fourth acre short, there'sjust cows and horses on the other sides and she's single and they would like to have her close, and they thought they could come and tell the Board all these things. Ms. Yoder further stated it's not like there's a sand filtration system only, it's a good conventional perc. Ms. Yoder stated she did not understand why they were led to believe that this was a meeting where they could present these things and possibly go away with her being able to do this. Chairman Larrick stated that he did not know. Whenever you talk to anyone with the County, you can always talk to someone else; it's not necessarily their job to be your adviser on everything other than what your options might be. Unfortunately, once you get to this point, there are some very definite rules that have to be complied with. 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. DISCUSSION Ms. Mather asked Mr. Cheran what exactly Ms. Lasky's options are. i Mr. Cheran responded there are no options in general. Ms. Mather asked if a variance would work and Mr. Cheran stated no, a variance would not work for her. Ms. Mather asked if there was anything that would work for her and Mr. Cheran stated the only thing that would possibly work is an "in -law suite ", but the zoning ordinance is very explicit about the total square footage you could have. It has to be 25% and cannot be 25% more than the existing structure. Chairman Larrick asked if it then would be considered one structure. Mr. Cheran responded, under the zoning ordinance, it would be considered a single structure. Where the questions would be raised would be through the permit process — it goes through planner's review. The first thing a planner would look at would be the definition of a dwelling as to separate entrance -ways and separate kitchens. It would be flagged for having two kitchens and calculations would be done. It could be done, but it would be difficult. Chairman Larrick asked if there were any more questions or any more discussion. No one responded. He then asked for a motion. Mr. Perry reluctantly made a motion to uphold the Zoning Administrator's decision, thereby denying the appeal. Ms. Catlett seconded the motion and it passed by majority vote. 0 Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 1251 Variance Request #06 -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 DEFERRED Mr. Chcran gave the background information on this variance request. This property and the adjoining properties are zoned RP (Residential Performance) and the land use is residential. The reason for this variance is a hardship. The Code of Virginia. Section 15.2 -2309, Subtitle 2, states that no variance shall be authorized by the Board unless it finds that a strict application of the zoning ordinance will produce an undue hardship, that such a hardship is not shared generally by the other properties in the same zoning district in the same vicinity, and authorization of such a variance would not be a substantial detriment to the adjacent property and that the character of the district will not change by granting the variance. This application does not meet the requirements as set forth in Section 15.2-2309, Subtitle 2 of the Code of Virginia. A final subdivision plat establishing Lot 2, Section One, Lynnehaven Subdivision, was approved on April 14, 2003, with the building setbacks of 35' front and right side. ten foot left side and 25' rear. The recorded plat indicates this lot to be a corner lot located within the RP zoning district as defined by Section 163 -23, Subtitle D ofthe Frederick County Zoning Ordinance. The applicant received zoning approval fora single family dwelling and a building permit on June 2, 2003. As part of the permit process, the permit application indicated proposed setbacks for the dwelling to be constructed. These setbacks on the application indicated proposed setbacks of 49' in the front, 36' in the rear, 48' on the right side and 13' on the left side. The Zoning Administrator required a setback survey which identified this corner lot with setbacks of 35' front and right side, ten foot left side and 25' rear. Mr. Cheran further stated, for the record, he has exhibits which he will explain in more detail after the staff report. Exhibit B is a sealed survey copy of the setback for the variance. This plat illustrates the existing location of the dwelling and setbacks for a corner lot, with the front encroachment of 4.1 feet. Exhibit C is a recorded plat which was recorded on April 14, 2002, showing Lot 2 to be a corner lot with the corner setbacks as required by the Frederick County Zoning Ordinance. A portion of the dwelling is constructed into the front setback and is the reason for this variance request. Exhibit D is the sealed setback survey with the minimum setbacks written fora corner lot. The applicant should have constructed this dwelling within the proposed setbacks as 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 request resulted. The applicant's Failure to accurately construct the dwelling according to the information submitted on the recorded plat and building permit does not constitute a hardship: therefore, denial of this variance request would be justified as the applicant has failed to meet the requirements of Section 15.2 -2309, Subtitle 2, of the Code of Virginia. Mr. Cheran asked the Board members to look at the above mentioned Exhibits in their agenda packet as he further explained staff's conclusions of this variance request. Chairman Larrick asked if Mr. Davenport knew this was a corner lot and Mr. Cheran responded yes, because a corner plat comes with the building permit. Mr. Cheran said he could not speak for Mr. Davenport, but Mr. Davenport's asking for the site surveys would tell Mr. Cheran and the building official that site surveys would be needed. Chairman Larrick asked if that was the only issue at that point whether they needed a site survey and Mr. Cheran stated that is correct. Chairman Larrick further stated that in this case, they Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 1252 needed it not because of what the talking about today but because of the 13' left setback —that was within the five feet and that was the only reason it was required. Mr. Cheran responded that is correct. Chairman Larrick said that as the application states, the back setback was 36' which, if it had been 36', we wouldn't be here today. Mr. Cheran said that is correct. Mr. Cheran referenced Exhibit B - the setback requirements at the bottom of the copy are for a basic regular lot that is not a corner lot. Chairman Larrick asked if anyone was present to speak in favor of this variance request. Mr. Ian Williams identified himself as representative for the applicant, Richmond American Homes_ who in turn is represented by Charles P. Johnson Associates, the engineering firm. On behalf of that firm is Mr. Allen Bacon who is here today. Mr. Williams stated that it would be apparent that the self - inflicted hardship would not be grounds that would legitimately be the topic of a grant of a variance by this Board. The case law that would substantiate that is rather thorough. Mr. Williams thinks that in this situation, you're looking at hardships that arise in two different ways. One is that the exception that might have been available as opposed to a variance is really only seven inches away from where we are under the present scenario. It's that close to being an exception. Chairman Larrick asked Mr. Williams what exception he is referring to. Mr. Williams responded there are exceptions as to taking the average of the setback on the lots that run 200' down the street. If they're all 35', you could have an exception to the setback requirement. Chairman Larrick stated that he still did not know what Mr. Williams is talking about. Mr. Williams stated that he is looking at Section 165 -23 Setback Requirements. Exceptions to Front Yard Setbacks... "Where the average front yard setback distance for adjacent lots is less than the minimum required front yard, the Zoning Administrator may allow a front yard setback distance less than normally required on the lot to be developed. In such cases, the front setback distance for the lot to be developed shall be the average of the minimum front setback distances on developed lots on the same street or road within 200' of the lot to be developed." Chairman Larrick asked isn't that an exception that only the Zoning Administrator can give? The Board does not have that power. Mr. Williams responded no, but what he is saying is, that's how close this is. Mr. Williams further stated he is not telling the Board to implement that or that they have the authority to do that. He is making that the threshold of where he's going on why this is not totally self-inflicted. Mr. Williams stated the second point is, if this was a side lot, it would be ten feet and there wouldn't be any problem, it's the fact that we have a corner lot that clearly is the problem. The other arena of difficulty that Mr. Williams thinks contributes to the hardship that we now seek redress on is that this dwelling was placed on a corner lot that was originally platted by a different engineer, not Charles P. Johnson. That's where the original problem started on what had been incorrectly written as a 25' setback when it was really 35'. So Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 12 53 0 Johnson inherits an incorrect plat. Chairman Larrick stated that Exhibit A, with 25' says Charles P. Johnson Associates on it. Mr. Williams said right, but they took that over. The original subdivision was done by a different engineer. Mr. Williams said that is not a critical point. Chairman Larrick asked if Mr. Williams was talking about Exhibit C & Mr. Williams stated that he doesn't have any of the exhibits. Chairman Larrick stated that Exhibit C is the one that is the recorded plat. Mr. Williams said right, Johnson did that, but as picking up a work product from a prior engineer. Mr. Williams stated that what he is getting to is, as this went through the approval process with the County, it went through three inspections of the plat. The first was for the lot grading plan that would have been done in January. Mr. Williams handed a copy of this to each Board member. That plat was approved by the County for the lot grading plan. That has what appears to be a 32' setback that by ordinance should have been a 35' setback, but the plat itself shows 32'. His point on this is, that got approved, it got approved for the applicant to proceed with lot grading. The second step, which has already been addressed, but he is going to call it to the Board's attention, is the second phase where the County was involved in this was the setback report for the building permit; that is the second group of documents and you'll see the County's summary. If you look at numbers put down by the County, all of them comply with the setback requirements; the front, the back, they all comply. The reason they do is because one of them is wrong. But that wasn't the applicant's fault, he didn't put that down there, that was put down by the County. So the County has in place the setback report for the building permit which it created and shows compliance. Chairman Larrick stated that any answer to that would be, had this been built based on this permit request, the back was still supposed to be 36'. So it wasn't built as it was approved. Mr. Williams said no, but all this is progressive. The key point is that starting with the original error where the County approved the lot grading plan, and secondly, where it approved the setback report. That the approval was based on an error by the County that it was correct and the County had that opportunity to look at the plat and say it's wrong. Right there you have a $1000 problem, not a $400,000 problem. As we move in that direction, even though it's partially self - inflicted by Richmond American, the County at that point jumps into the bathtub of lukewarm water and adds to the applicant's problem, because at that point, had the County not been in error, Richmond American would not have been in error. They would have solved the problem right there, but what happens is, it goes forward. The house is entirely constructed and this is the model, the flagship for the subdivision, a $400,000 home. They try to get the occupancy permit and then, for the first time in the County's process, they say you're four feet off — you can't get an occupancy permit. Mr. Williams asked what is their remedy? Can they move the house — not very easily. Can they adjust the boundary line — no, they don't have remedy available to them, this is a corner lot. Would you see this problem if you drove down and looked at it — no. Would it look any different from any other setback problem— no. Does it plug into the factors that you're required to consider for a variance — yes, it does and the reason is because this hardship is not solely self - inflicted. The applicant was a participant but of some culpability, if not equal culpability, is the County that on the face of its own building permit approval has incorrect numbers generated by its office, not by the applicant, and allowed the applicant to go forward. Mr. Williams further stated that they submit that there is a hardship. There is no way to re -work this lot to move the house, it's not possible. They would ask this Board to determine the hardship in part Frederick Co. Board of Zoning Appeals I Minutes of October 19, 2004 Minute Book Page 1254 created by the County's own process has brought about a hardship that's not remediable except by variance. Mr. Williams stated that he would throw one thing else out at the Board that may assist in their consideration that hopefully is ajoint effort to what most of them would be looking for. What they have suggested, but only in the last 45 minutes to the Zoning Administrator, is that consideration be given to the creation of an out lot on the Sesar Drive part of this lot, which is dedicated to open use, and which then serves as a blocker so that the setback is only ten feet. If the residue of this lot is still at least 12,000 square feet, then at least they can comply with the subdivision requirements on the lot size. If there is a requirement that the out lot be not severed off or not conveyed separately, and is dedicated to open space, they think it buffers it from the street. It doesn't change the topography or anything else. Chairman Larrick asked Mr. Williams if he is saving to create a little strip and say there's a lot; therefore, this is not a front lot, it's a side lot. Mr. Williams said yes, it's now not a street lot. Chairman Larrick stated, obviously he couldn't answer that. Mr. Will iams said no, and they don't know the answer to that either. But they're all willing to take a look and what they would ask this Board to do is to defer any disposition of this matter until that can be looked at and they may be able to come up with a solution that makes everybody happy. Chairman Larrick asked Mr. Williams if he would like the Board to defer this to the next meeting date. 0 Mr. Williams would request the Board to do that and harbor his thoughts on it. In the event this doesn't work, he would like to renew or at least to have a closing comment. Chairman Larrick stated he probably should have given Mr. Williams that option, but it is more important with the appeal cases than it is with the variance cases, to give them an opportunity to have a full Board just because of the special requirement on the appeals that it be a majority of the Board members. Here, we just need a majority of the quorum. Chairman Larrick asked the members of the Board if anyone would have a problem allowing the applicant to defer this matter to the November meeting. None of the Board members had a problem with this. Chairman Larrick stated the Board did not have a problem with this and lie doesn't imagine the Department has a problem with it. Mr. Cheran stated that actually Mr. Williams is right, they would have to look into this to see if they can make this work before they come back in November. Mr. Cheran further stated that staff has no problem with deferring the matter. Mr. Scott made a motion to defer this matter until the next meeting. Mr. Perry seconded the motion and it passed unanimously. Chairman Larrick asked if anyone was present to speak against the variance request and no one responded. Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 1 255 r1 L.J NEW BUSINESS Mr. Cheran stated that the Board members had received a Writ of Mandamus. Basically, this concerns what was discussed in Closed Session. It will not affect members, it is a procedural issue. Mr. Cheran further stated he did not be] ieve any Board members would have to testify or even show up at the trial. Mr. Robert Mitchell, the Board ofZoning Appeals attorney, is handling this matter. Chairman Larrick asked if this is just a copy and Mr. Cheran responded yes. Chairman Larrick stated that basically this is to alert the Board members they are going to be served. Chairman Larrick asked if this matter does come before the Board next month, is Mr. Mitchell planning on being here? Mr. Cheran stated yes, Mr. Mitchell will be here. i As there were no other items to be discussed, the meeting adjourned at 4 p.m. by unanimous vote. Respectfully submitted, S V - James L; rrick, Jr., Chairman Z Bev Dellinger, Secreta Frederick Co. Board of Zoning Appeals Minutes of October 19, 2004 Minute Book Page 1256