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HomeMy WebLinkAboutBZA 04-19-05 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 April 19, 2005. PRESENT Theresa Catlett, Chairman, Opequon District; Dwight Shenk, Gainesboro District; Robert Perry, Vice Chairman, Stonewall District; Kevin Scott, Shawnee District; and, Dudley Rinker, Back Creek District; and, Lennie Mather, Red Bud District. ABSENT: Mr. Robert W. Wells, Member -At- Large. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Bernard S. Suchicital, Zoning Inspector; and, Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m On a motion by Mr. Perry, the minutes for the February 15, 2005 meeting were unanimously approved as presented. On a motion by Mr. Rinker, with an addition to the minutes concerning Appeal #03 -05 of Roy R. Beatty, prefacing Mr. Rinker's motion that when a rural subdivision is submitted with a preservation set - aside, it is understood that it is for perpetuity, the minutes for the March 15, 2005 meeting were then unanimously approved as presented. In accordance with the Code of Virginia, 1950, as amended, Section 2.2-3711 , Subsection A, Mr. Rinker made a motion that the Board go into Closed Session, and the motion was seconded by Mr. Shenk. The vote was unanimous. CLOSED SESSION Mr. Rinker made a motion that the Board come out of Closed Session, stating in accordance with the Code of Virginia, 1950, as amended, Section 2.2 -3711, Subsection A, there was nothing discussed in the Closed Session that the Board was not authorized to discuss. Mr. Shenk seconded the motion. The roll call vote was as follows: Mr. Rinker, aye; Mr. Scott, aye; Ms. Mather, aye; Mr. Shenk, aye; Mr. Perry, aye; and, Chairman Catlett, aye. PUBLIC HEARING Appeal Application 407 -05 of Fellowship Bible Church, submitted by Painter- Lewis, P.L.C., to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to Section 165 -30 -G, to permit all foot high sign. This property is located on the southeast corner of the intersection of Middle Road and Apple Valley Road. The subject property is identified with Property Identification Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1296 Number 63 -A -14 in the Shawnee Magisterial District. ACTION — APPEAL DENIED Mr. Cheran stated for the record that the staff report incorrectly lists this as a variance request and it is an appeal request. Mr. Cheran gave the staff report. This is an appeal of the determination of the Zoning Administrator with regards to sign height in the RA (Rural Areas) Zoning District. Section 165 -30 G of the Frederick County Zoning Ordinance requires all signs that are not business signs to be no higher than ten feet in height. Traditionally, signs in the RA zoning district have been no more than 50 feet in area and most signs in the RA zoning district are through a Conditional Use Permit and that sign requirement is no larger than four feet in area. Also for the Conditional Use Permit, because it's a legislative action, conditions are put on for sign requirements. The regulation of signs in the RA zoning district is to avoid the typical commercial signage. Furthermore, signage is intended to identify a user's location. Seeking visibility from a limited access road, Route 37, when such land does not have access directly to the use is not the intent of signage in the zoning ordinance. The sign sought by the applicant is clearly not appropriate for the RA zoning district. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165 -30 G with regards to sign height. Mr. Cheran displayed the current monument -style church sign on the screen, as well as several other church signs, in the RA zoning district. The applicant is represented by John Lewis of Painter - Lewis, who is available to answer questions. Mr. Lewis approached the podium and identified himself. Mr. Lewis stated that the existing sign has been re for 15 to 20 years and needs repair, and the church has tried to come up with a new, modern sign. They are trying to clarify exactly what they're allowed to do and the Zoning Administrator has made a finding that they cannot exceed ten feet in height. Mr. Lewis would like clarification on what they can do and why they can't put a sign there that meets the part of the ordinance that addresses business signs, which allows you to erect a sign that is the same height as the maximum building height of 35 feet, with 100 square feet of area. Chairman Catlett asked Mr. Cheran to respond to Mr. Lewis. Mr. Cheran read a copy of the Ordinance... "Any signs other than business signs should be no more than ten feet in height." Mr. Cheran stated we do not treat a church, synagogue or any religious organization as a business. It's not taxed as a business so, therefore, we don't consider it a business sign. In B2 and B3 zoning districts, you're allowed to have a sign 35 feet in height and up to 100 square feet in area. The Comprehensive Plan, in keeping with our rural areas, looks at keeping the typical commercial signs limited. No one came forward to speak for or against this appeal. Mr. Cheran stated that he had received an email this date in opposition to this appeal from Dee and Bill Bauserman. DISCUSSION There was no discussion among the Board members. Mr. Shenk made a motion to affirm the decision of the ing Administrator. Mr. Rinker seconded the motion and it passed unanimously. Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1297 PUBLIC HEARING Variance Request 908 -05 Wolfgang Winzer for an 18 foot side yard variance. This property is located at 127 Lake Serene Drive (Route 677), and is identified with Property Identification Number 31 B -1 -3 in the Gainesboro Magisterial District. ACTION - VARIANCE APPROVED Mr. Suchicital presented the staff report. This property was created in 1972 as noted by the deed and plats included in your agenda. Frederick County adopted performance zoning in 1967. The Frederick County historical zoning map shows this property was zoned A -1 (Agricultural Limited) in 1972. The property setback lines at the adoption of the zoning ordinance were 35' front and 15' sides. Frederick County amended its Code in 1989 to change the rural zoning districts to the current RA (Rural Areas) zoning district. The current setbacks for property in the RA zoning district abutting lots with residential use are: 60' front, 50' rear and sides. Mr. Suchicital stated further that this property was subject to a lot consolidation between lots 2B and 3 in 1995. The consolidation created this one acre lot and would allow for an addition to be added to this structure. The proposed new addition would meet the current RA setbacks. Mr. Suchicital stated that the Code of Virginia, Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that 1) 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 46d the same vicinity; and c) that the authorization of such variance will not be of substantial detriment to acent property, and that the character of the district will not be changed by the granting of the variance. The applicant is seeking a variance of 18 feet on the left side of his property. The existing structure on this property has already been established with a 32 foot setback on the left side and, therefore, is legally non- conforming. Should this variance be granted, the building setbacks for this property would be: 32 feet left side of the property. It appears that this variance does not meet the intent of the Code of Virginia, Section 15.2 - 2309(2), and this request for a variance from the current setbacks of the RA zoning district may not be justified. The applicant has more than 50 feet on the right side of his property. Mr. Suchicital stated that an email was received from Wellington Jones, Secretary of the Homeowners Association, that he is in favor of this variance request. Mr. Suchicital displayed an aerial photo of the property on the screen. Mr. Rinker asked if the variance is granted, will the applicant be any more non - conforming than he is now and Mr. Suchicital stated no, he will not. Mr. Winzer approached the podium and identified himself. He stated the reason for placing the addition where they have is because it does not change the character of the property, and the addition will even be further from the setback than the existing building. The front corner is at approximately 32 feet, whereas the corner of the extension will be at approximately 34 feet. Mr. Winzer further stated he needs more space for a business office. His architect told him this is the most economical and efficient way to build the addition. Mr. Cheran stated that the Building Department doesn't keep building permits from that far back that's why the Board members don't have a copy of the original building permit. Frederick Co. Board ofZoning Appeals Minutes of April 19,2005 Minute Book Page 1298 Mr. Donald Vaschon, who lives in Lake Serene, spoke in favor of Mr. Winzer's request. Ms. Linda Kulstad, Mr. Winzer's immediate neighbor, spoke in favor of the request. No one was present to speak against the variance request. DISCUSSION Chairman Catlett asked Mr. Winzer to comment on the topography on the other side of the house. Mr. W inzer stated they would have to cut a lot of trees on that side of the property and they would have to change the entire interior of the house. Also, the house would look much bigger, as a visual effect, than it is now and change the character of the house. Mr. Rinker made a motion to grant the variance. Mr. Perry seconded the motion and it passed unanimously. PUBLIC HEARING Appeal Application #09 -05 of Deborah Dutcher, submitted by Artz & Associates, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to Section 165 -54 D c), changes to the rural preservation tract. The subject property is located at the intersection of Dover Lane and Chapel Road (Route 627), and is identified with Property Identification Number 83 -A -106 in the Opequon District. ACTION — APPEAL DENIED Mr. Cheran gave the staff report. This is an appeal of the Zoning Administrator's determination in regard to the rural preservation of a rural preservation subdivision. This subdivision was approved by Frederick County on June 3, 1992, under Chapter 21, Article IV, Section 4 -6 -4 of the Frederick County Zoning Ordinance, which was adopted February 14, 1990. Mr. Cheran stated that he made a copy of that ordinance and placed it in the agenda. The zoning ordinance allowed the creation of two acre lots with a 40% set - aside. This rural preservation must stay in tact and cannot be changed. Any land use action on this tract must be done in accordance with Section 165 -4, Subtitle 3 of the Frederick County Zoning Ordinance. Mr. Cheran further stated that this section of the zoning ordinance is beyond the scope of this Board and must be referred to the Board of Supervisors for action. Staff is requesting to affirm the decision of the Zoning Administrator with regard to Section 165 -541), Subtitle C, that the tract known as a rural preservation tract cannot be changed in any way with regards to the recorded plat, which is included in the agenda. Ms. Mather asked why they want to change it. Mr. Cheran responded that the applicant can better answer that, but he pointed out there's a letter stating they want do a subdivision on a rural preservation tract, included in the agenda, where Mr. Cheran stated the subdivision cannot be approved. Mr. Mike Artz approached the podium as representative for Deborah Dutcher. Mr. Artz stated that basically he thinks this whole situation is a case of intent and interpretation. Mr. Ariz gave the Board members some hand -outs. At the time the subdivision was recorded, there were four lots created. Two of Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1299 the lots were less than four acres, a 14 acre lot and a 58.847 acre tract that was designated on that plat as being the rural preservation lot. It also specifically stated on there that it was 74% of the total tract. Today, they are here to request for a further subdivision of lot 44 under Chapter 165 -54 D. Mr. Ariz read from one of the hand -outs. Forty percent of the parent tract must remain in tact as a contiguous parcel. This acreage, what acreage? —40 %, must be designated prior to the division of the fourth lot. No future division of this portion, - what portion? —40 %, of the parent tract will be permitted. Mr. Ariz contends that the intent of this Code is to set aside 40 %, not necessarily a higher percentage, but a minimum of 40 %. Furthermore, in the past this particular portion of the Code has been interpreted by previous planning staff in the way he believes the Code should be interpreted. Mr. Artz handed out more information to the Board members. This is a plat of a rural preservation subdivision that he prepared for a client called Walnut Springs Preliminary Sketch Plat. He mentioned that they will see a 50% number and that's 50% because as part of a subdivision waiver they made to the Planning Commission to extend the length of a cul -de -sac, they proffered a 50% set aside instead of a 40% set aside. You can see that the 50% was 67.252 acres. Under note #9, parent tract, parcel 4161, cannot be further subdivided without the approval of a revised preliminary sketch plan. In no case shall this lot be reduced below 67.252 acres. Michael Ruddy, who was the Zoning Administrator in 2000, requested Mr. Ariz to place that note on the plat. Mr. Artz further noted that there have also been two other cases here that may have a precedent for this particular situation and he believes that they are apples, as well as this is an apple; however, he believes that perhaps a wrong determination was made in that case due to the way he feels the Code should be interpreted. He believes that the intent of this section of the Code was to only preserve the minimum 40 %, not necessarily a larger tract of land. He believes the intent was to allow a future subdivision of that parcel, but not to reduce it below 40 %. Mr. Artz further stated that if you read this section of the Code with that thought in mind, it makes sense. If the intent of the Planning Commission, the CPPS, the Board of Supervisors and planning staff in 1989 and 1990 was to preserve the rural preservation tract as it was created, regardless of its size, the wording of this section of the Code would have been completely different. It would have allowed for you to interpret it in that manner. Furthermore, Mr. Artz asked for Mr. Wayne Miller, who was the Zoning Administrator at the time this was signed, to come up and voice his opinion. Mr. Perry asked what is the difference between the second hand -out that Mr. Artz gave them showing a rural preservation tract platted at 67.252 acres and the one at 58 acres that can't be reduced. Why can Mr. Artz not reduce the one at Walnut Springs but can contend that the intent is to be able to reduce the one on this tract. Mr. Artz stated in 1999 on behalf of the applicant for Walnut Springs, he went to the Planning Commission to request a waiver for the length of a cul -de -sac. As part of that request, they proffered a 50% rural preservation tract as opposed to the minimum 40 %. Mr. Perry asked if they elected to do that and Mr. Artz responded yes. Mr. Perry asked did not the people set 58.847 acres for the rural preservation lot elect to do that. Mr. Artz responded yes they did, but they did not realize that the Code was going to be interpreted in this manner. Mr. Perry stated they exceeded the requirement of 40 %, but that's what they elected to do. Mr. Artz stated that's correct; however, keep in mind that if they knew they were going to be held to the size of that tract, they would have subdivided the entire property. Mr. Perry stated there has to be a reason the applicant kept 74% of the total tract as a preservation tract. Mr. Artz stated there are several reasons: the applicant still lived on the rural preservation lot and she didn't want other parcels out in front of her property; her husband at the time is now deceased and she has since remarried and moved away and she'd now like to dispose of the property. Plus there's also financial 0 considerations that would have come into play at the time Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1300 Mr. Rinker stated they have focused on the last sentence of 4-6-4 about no future division. The line above that refers to the rural subdivision that the acreage must be designated prior to the division of the fourth lot. When you submitted that, you had the fourth lot so you designated your preservation area. Also, Mr. Artz referred to the Board's action back in 1989 and 1990 approving this. It was their understanding that it is up to 40% or more for the preservation tract. Mr. Rinker knows this because he was sitting on the Board at the time. Chairman Catlett stated she feels it's important to respond to a comment made by Mr. Ariz. While this Board always tries to be consistent in making decisions and making the decision the members think is best serving for the County and for the residents, no action taken by this Board is intended to set a precedent for a future action. Mr. Artz apologized to the Board. Mr. Wayne Miller spoke in favor of this appeal. He was the Zoning Administrator from 1989 to 1997. Mr. Miller stated that he would have allowed the further division of this land, not to infringe upon the 40 %. Mr. Dave Holliday, contract holder of this property, spoke in favorofthe appeal. He believes ifthe words minimum 40% were in the code, they would not be here today. Mr. Holliday gave the Board members a hand -out. Mr. Holliday spoke about approximately 180 acres which he owns and intends to develop around The Cove. His point is he's going to come into staff with seven tracts drawn on 40 acres and he's going to show the 30 acres next to Camp Rock Enon and 100 acres across the road, and he's going to show on his plat 82% remaining. The Board's finding today whether that means minimum 40 is going to affect weather he does soil tests and platting to come to his 40 %, the way they're trying to interpret this thing, then you all, no offense intended, are creating sprawl, not him. He does not want to touch the 140 acres. So he will have 82% on his plat, as Ms. Dutcher has 74% on her plat, but the intent says 40. If he comes in with 82 and they say sorry, that's your parent tract, then lie's going to come in with all 180 acres broken up. The Board's finding today will tell you what this piece does and possibly many, many more down the road. Mr. Rinker responded to Mr. Holliday that it's his right, you can do 80% into rural preservation. but rural preservation is in perpetuity. Mr. Holliday said if he does 80% in rural preservation, then you're saying I lose my right to ever come back. Mr. Holliday is saying if the rule today is it's in perpetuity and it's not 40% minimum, then he's going to develop the whole tract. Mr. Rinker told Mr. Holliday that's his right. Mr. Holliday told the Board members they're creating sprawl, not him. Mr. Rinker responded to Mr. Holliday that he has the right to do what he wants to do with that tract. Chairman Catlett stated that it is not within the authority of this Board to set those zoning restrictions. The only thing being asked of the Board today is their interpretation of Mr. Cheran's ruling and that's the only thing they can act upon today. Mr. Ariz again approached the podium to answer Mr. Perry's earlier question correctly. Mr. Perry had asked Mr. Ariz about the 67.252 acres. On that plat, you'll see where it says rural preservation lot 23. designated as 81.317 acres. That was why note 49 was placed on this plat, to put on notice to anybody who ever had a need to look at this plat to know that they cannot further subdivide that tract below the 67.252 acres. Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1301 Mr. Perry stated he did not understand the relationship of putting a percentage number on a plat, how that affects the ability or inability to have future division of that particular plat. Mr. Artz responded that section of the Code says 40% must be designated as the tract that cannot be further subdivided. Mr. Perry asked when Mr. Artz did this plat and created this 81.317, why did he not go someplace on this plat and designate the 40% that could not be further subdivided. Mr. Ariz said because staffs interpretation at the time was that they could further subdivide the rural preservation lot, #23, as long as they did not take it below the 67.252 acres. Mr. Gary Lofton, who lives in close proximity to the land in question, spoke against the appeal. Mr. Lofton stated he believes Mr. Ariz, Mr. Miller and Mr. Holliday have touched upon it, and that is the word intent. Mr. Lofton's residential lot is part of the original subdivision that Mr. Dorman and his wife created in 1992. Mr. Dorman told Mr. Lofton that he envisioned a small neighborhood and to leave the 58 acres for he and his wife; he knew he could have further subdivided the property. Before Mr. Lofton purchased his lot, it was his understanding that Mr. Dorman set aside that property because he wanted it to be one contiguous lot. Mr. Dorman has passed away and his wife has remarried. Quite possibly this is a matter of financial interest. He can understand that; however, what he can't understand is that now they can come back and change the rules of the game. Mr. Lofton asked the Board to uphold Mr. Cheran's ruling and not allow this to happen. Mr. Paul Kisak spoke against the appeal. Mr. Kisak and his wife live 35 feet from the property line of the rural preservation lot. He stated that he and his wife knew Mr. and Mrs. Dorman very well and Mr. Dorman emphasized to them that it is a rural preservation lot in perpetuity and never to be touched. Mr. and Mrs. Kizak met with Mr. Artz at the time they were going to purchase their lot and Mr. Ariz told them it could not be developed, it's a rural preservation lot. Mr. Kisak gave the BZA Secretary a Petition to Deny Appeal Application, signed by opposing residents. Mr. Kisak stated that all the petitioners and people in attendance today bought their land with the understanding that it was a rural preservation lot and would not be developed. Mr. Kisak stated they are all behind Mr. Cheran's analysis. The Kisaks were engaged in a lawsuit with the Dormans over this development. Mr. Kisak read from the lawsuit. This was submitted by Deborah Dorman Dutcher's attorney durim, the lawsuit... "The zoninu regulation Section 165 -54 that says a 40% parcel of the tract must remain in tact as a contiguous parcel." They agreed to this... "This acreage must be designated prior to the division of the fourth lot". The acreage was designated rural preservation lot prior to the division of the fourth lot. He further read from the document... "No future division of this portion of the parent tract will be permitted ". Chairman Catlett pointed out again that the original owner's intent is not what they are considering today. They are considering whether the Zoning Administrator made the correct decision as it applies to the zoning ordinance. Mr. Holliday again approached the podium. He has the Judge's ruling in the case Mr. Kizak is talking about. He contends that Mr. Lofton's statements are hearsay. The ruling, dated 7/26/04, states that the May 4, 2000 document tiled by the Defendant, Paul Kizak. constitutes a cloud on the title of the Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1302 Complainant, and was an invalid attempt by the Defendant to file restrictions and covenants against lot 4 owned by the Complainant. That all the terms and conditions contained in the May 4, 2000 document were merged into the deed between those parties. That, therefore, none of the terms of said May 4, 2000 document apply to or affect any lot 4 owned by the Complainant, that neither Paul or Kathryn Kisak have any right of first refusal on lot 4 nor have any right to prohibit any development or subdivision of lot 4 because of said document." Mr. Kizak returned to the podium and stated that the lawsuit was a civil matter and had to do with their contract, which the Dormans signed over 18 times that they would not develop that acreage any farther. He said the Judge's ruling only applied to the fact that he recorded it after they had signed the contract. Mr. Cheran reiterated that we are here for an interpretation of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance. The Walnut Springs Preliminary Sketch Plat was for a cul -de -sac reduction and really has no business being included in this because it was a Planning Commission and Board of Supervisors action, which is a legislative action. Another point is that this is not in perpetuity. The ordinance clearly states that the applicant may take it to the Board as a waiver of division restriction ten years from the date of the creation of any 40% parcel. This applicant can do this. A lot of the issues brought up are policy issues and policy issues are not decided by this Board. It is the Zoning Administrator's intent that this 40% set -aside cannot be subdivided as it was a recorded plat. Ms. Mather asked why would a builder develop or not when they're in the planning stage and plotting out the lots not go ahead and do everything the way they want it the first time instead of coming is back and coming back. Mr. Scott replied cost of development. Mr. Cheran stated that today under the Subdivision Ordinance you have a preliminary sketch plan that comes in. In 1992, the zoning ordinance was amended to show all this. Back then it was just a plat which was recorded. Ms. Mather asked what would happen if every rural preservation lot could be further divided. Would we have a lot of these? Mr. Cheran responded there's a possibility you could, but you would have to have the Board of Supervisors answer that question. DISCUSSION Mr. Rinker stated that he believes what they're asking for is not within the realm of this Board but it should be at the Board of Supervisors, requesting that set -aside be redone to come down to the 40 %. He stated they're being asked to deny the staff s opinion and they don't have the power to grant the additional Inlc rhat nn to tho Rnarrl nf,C nnoricnrc Mr. Perry made a motion to affirm the decision of the Zoning Administrator. Mr. Scott seconded the motion. Due to a conflict of interest, Mr. Shenk abstained from voting. The motion passed by a majority vote. Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1303 OTHER Chairman Catlett asked Mr. Cheran the cut off date for the next meeting. Mr. Cheran replied the cut off is the 22" of April. Mr. Rinker stated that he will not be attending the next meeting. As there were no other items or new business to be discussed, the meeting adjourned at 5:15 p.m. by unanimous vote. Respectfully submitted, 0 l Theresa B. Catlett Chairman Frederick Co. Board of Zoning Appeals Minutes of April 19, 2005 Minute Book Page 1304