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BZA 08-16-05 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia August 16, 2005 3:25 p.m. CALL TO ORDER 1) Detennination of a Quorum 2) Minutes of July 19, 2005 PUBLIC HEARING 3) Appeal Application #19-05 of Lax, Ltd., to appeal the decision of the Zoning Administrator in the administration of Zoning Ordinance Article IV, Section 165-29(10), pertaining to entrance requirements. The subject property is located at 115 Winterberry Court in the Oakdale Crossing Subdivision, and is identified with Property Identification Number 54I-2-65 in the Shawnee Magisterial District. 4) Variance Request #20-05 of William T. Drake, for a 2.4 foot side yard variance for an existing attached garage. This property is located off of 115 Essex Circle, and is identified with Property Identification Number 75E-1-3-153 in the Opequon Magisterial District. 5) Variance Request #21-05 of William G. Busko, submitted by Artz & Associates, for a 15 foot east side -yard variance, 20 foot west side -yard variance and 25 foot rear variance for a single family dwelling. This property is located off of Double Church Road (Route 641) on West Street (Route 849) in Lone Oak Subdivision, and is identified with Property Identification Number 8613-2-A-17 in the Opequon Magisterial District. 6) Variance Request #22-05 of William G. Busko, submitted by Artz & Associates, for a 20 foot east side -yard variance, 10 foot west side -yard variance and 25 foot rear variance for a single family dwelling. This property is located off ofDouble Church Road (Route 64 1) on West Street (Route 849) in Lone Oak Subdivision, and is identified with Property Identification Number 8613-2-A-16 in the Opequon Magisterial District. 7) Other 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 19, 2005. PRESENT: Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Dudley Rinker, Back Creek District; Kevin Scott, Shawnee District; Dwight Shenk; Gainesboro District; and, Robert W. Wells, Member -At -Large. ABSENT: Lennie Mather, Red Bud District. STAFF PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; J. D. Kirby, 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 and seconded by Mr. Shenk, the minutes for the June 21, 2005 meeting were unanimously approved as presented. Chairman Catlett asked Mr. Cheran the cut-off date for the next meeting. Mr. Cheran replied that Friday, July 22, 2005, is the cut-off date and at this time, there are two items to come before the Board. PUBLIC HEARING Appeal Application #15-05 of Oak Hill Grocery, submitted by Thomas J. Chasler, Esquire, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to legal non- conforming land use in the RA (Rural Areas) District. The subject property is located at 2708 Berryville Pike, and is identified with Property Identification Number 55-A-169 in the Red Bud District. ACTION — APPEAL DENIED Mr. Cheran gave the staff report. The applicant is appealing the decision of the Zoning Administrator, contending that the store does not exceed the ordinance requirements for allowing a non -conforming use to expand 50% of the original store footage. Mr. Cheran further stated that the property currently operates with retail sales, adult oriented videos and novelties. The applicant wants to add individual viewing booths in the viewing of adult oriented videos. The RA zoning district does not allow this type of business within the County of Frederick. Research of county records shows that this business existed prior to the Frederick County Zoning Ordinance being enacted in 1967. This establishes the business as a non -conforming use and any expansion of the current floor area would not be permitted. The proposed expansion is beyond the ordinance requirement of 50%, which is under the non -conforming use of the Frederick County Zoning Ordinance 165-151(c). Staff's research includes the original structure of the store with the second level and the residence on the first level. The Frederick County Board of Zoning Appeals 1319 Minutes of July 19, 2005 Minute Book Page second level has approximately 1,000 square feet in area; therefore, the 50% that is allowed under Section 165- 151 would limit the storage of the lower level to 500 square feet, which is presently being used. The Frederick County Zoning Ordinance allows country general stores in the RA zoning district since the Zoning Ordinance was adopted in 1967. The ordinance clearly defines country stores to sell groceries and a variety ofretail goods. This definition does not include adult video viewing booths for private viewing. Adult oriented businesses are allowed in the B2 zoning district with a Conditional Use Permit. Should the owner want to expand this use on the property, a request to rezone the property to B2 with a Conditional Use Permit would be appropriate, and also would be beyond the scope of the Board of Zoning Appeals Board. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance regarding legal non -conforming land use in the RA zoning district; that this expansion to add private video booths for adult oriented videos is not allowed in the RA zoning district. Mr. Cheran stated that staff had visited the property prior to the last BZA meeting in June 2005, and met with a caretaker of the property. It is staff's opinion that this is still a country store with the exception that it has some internal expansion which is not part of the non -conforming use they already have. Staff mailed a zoning determination letter to the applicant's representative, Thomas Chasler, Esq., disallowing any expansion from the current floor area devoted to adult oriented videos, novelties and viewing booths. Mr. Cheran stated for the record that Mr. Chasler is in attendance to answer any questions. Mr. Rinker stated, for a legally non -conforming use, it can increase its size by 50% but it cannot increase the degree of non -conformity; so how do you do one without the other? Mr. Cheran stated that what the zoning ordinance is trying to accomplish is that the business had one shot, one time, to expand, but this applicant has already had that opportunity and it has already happened at this non -conforming use location. They have already used the original floor area. The expansion would be measured on the gross floor area of the structure and total land uses. Mr. Cheran further stated that if someone has a non -conforming use in Frederick County and they want to expand it, if it doesn't fall into one of the parameters where it is allowed to happen, such as signs, junk yards, trash heaps and landfills, you can apply for a Conditional Use Permit. Staff's interpretation was that the gross area of the floor was already at that threshold and it couldn't expand any further; they had already used up their non -conformity; their one shot expansion. Mr. Perry asked if it is staff's contention that the expansion that has already taken place is in the lower level. Mr. Cheran stated that is correct. The total floor area has already hit the maximum and any use in the lower level would push this expansion. Chairman Catlett asked if it is operating now because it was in existence prior to the 1967 zoning. Mr. Cheran stated that as far as staff can tell, through aerial photos dating back to 1970, if it was there in the 1970 photos, it was most likely there in 1967. Through other historical records, staff found out that this store, as a country store, had been there. Staff gave them the benefit of the doubt that adult retail merchandise had been on- going there. Country stores now, and even in 1967, needed a Conditional Use Permit in the RA zoning district. There was no record of a Conditional Use Permit ever being issued for this property, and that was part of staff's research where it was deemed to be a non -conforming use. Mr. Chasler approached the podium and identified himself Mr. Chasler stated that under the zoning ordinance, you. can either affirm, deny, affirm in part, deny in part or modify the decision of the Zoning Frederick County Board of Zoning Appeals Minutes of July 9, 2005 Minute Book Page 1320 Administrator. What they have is a land use case and the use is as determined by the ordinance. Mr. Chasler further stated that he had spoken to staff previously and indicated that they are agreeable to the private viewing booths being eliminated. Mr. Chasler asked the Board to look at the staff comments, paragraph 2, the second sentence..."Therefore, the 50% that is allowed by Section 165-151 would limit the storage on the lower level to 500 square feet as presently used". Under the staff comments where they're saying okay, you've had your 500, we'll give you the 500 downstairs, but you have to use it for storage. That's not what the ordinance says. The ordinance says that the expansion or modification is allowed provided it does not increase the degree of non- conformity. Mr. Chasler stated that his client's position is, if you think we've had our expansion, we're not Storage Solutions, we're not a storage building upstairs, we're a grocery and we're allowed to have certain business uses. We should at least be allowed to have those same business uses in that 500 square feet and not limit it to only storage. Mr. Chasler's client doesn't agree that the expansion or modification has occurred. Their position is that the 500 square feet downstairs has been used in the business as an office, as storage, and what they would like now to do is to expand an additional 500 feet and keep the intensity of use as it is upstairs. In other words, they're not going to sell diesel oil or motor cycles, that would change the intensity of use, but they would keep the same usage as a country store downstairs. Mr. Chasler stated they have put on the table that the viewing booths would not be appropriate either in the new 500 square foot area or the existing 500 square foot area. If the Board wants to make a modification to the decision, that would be fine with Mr. Chasler and his clients. However, at least allow the applicant to use the pre-existing 500 as to what it is using before, what it is using upstairs, what is permitted under the ordinance. At best, to permit an additional 500 to be used with the same intensity of use. Mr. Rinker asked Mr. Chasler if he is requesting the entire downstairs or a portion of the downstairs. Mr. Chasler replied he's requesting that the entire downstairs that they pick up an additional 500 square feet to be used with the same intensity, the same type of use, as the upstairs. However, if that does not seem appropriate, .heir fall -back position is at least let them use the existing use now, not as storage as recommended by staff, but with the same use as the upstairs. Mr. Perry asked if the original intent of the lower level was a residence. Mr. Chasler responded the original intent, affidavits show that at least over the last seven or eight years, that it has been a mixed use, both as a residence and a computer room and storage area. Mr. Perry asked Mr. Chasler when the building was constructed, and Mr. Chasler stated that he did not know, but he would estimate in the 30's. Mr. Perry said from the lower level drawing submitted by Mr. Chasler, the configuration clearly shows a kitchen and dining area and at least two, possibly three, rooms that are obviously bedrooms. At what point in time did the storage room number 3 and the kitchen and dining area become used, as specified on the affidavit by Kay Trent. Mr. Chasler stated that he believes the affidavit speaks to how long. Mr. Perry went on to say that the drawing clearly says that this is a kitchen and dining area that's now being used for a computer, stored videos and record keeping. Mr. Chasler replied he's sure that when it was designed back in the 30's or 40's, the use was probably that as a residence and as a storage area for the grocery store. Mr. Perry stated that what he is trying to get at is, at what point did this lower level cease to be a residence and start being a part of the upstairs business. Mr. Chasler responded that he can only go back seven years on the second affidavit of Tina Geary where she said she was employed there for seven years, which would have been 1998. During that time, portions were used for business purposes, so Mr. Chasler can only take it back seven years. Mr. Perry said based on that, would you not at that point use up your 50% non -conforming use changing the Frederick County Board of Zoning Appeals Minutes of July 9, 2005 Minute Book Page 1321 kitchen and dining area and storage room to the use for the country store upstairs. Mr. Chasler stated that if the burden is upon him to show that it's a grandfathered use since 1967, he is not able to carry that burden because he can only go back seven years with the downstairs. That's why he said their second position would be, if they cannot prove the exact use prior to 1967, then they'll grant the fact that they only have a 50% expansion downstairs. But don't limit that expansion to storage; allow it to be at least what it is upstairs. Mr. Perry stated that based on the Zoning Administrator's determination, it sounds like what he's saying is that at some point prior to seven years ago, the kitchen, dining area and bedroom were changed from that to the present use, so to Mr. Perry that would substantiate the Zoning Administrator's position that they've already had their 50% change in non -conformity. Mr. Chasler stated that he can only go by the affidavits and Mr. Perry said that one affidavit says seven years. Mr. Chasler stated that she was employed there for seven years. Mr. Perry stated he would interpret that to mean that seven years ago the change was made. Mr. Chasler said either that, or that's how long she's worked there. Mr. Perry reiterated that the affidavit says that a change was made. Mr. Chasler reiterated that she's worked there at least seven years and during that period of time, this was what the use of it was. . Mr. Perry and Mr. Chasler continued a dialogue concerning Mr. Perry's point that a change from the original intent of the building has already taken place and Mr. Chasler's point that Ms. Geary's affidavit says she worked there for at least seven years and during that period of time, this is the use that was made of the property. Chairman Catlett asked Mr. Chasler if anyone used the property as a residence now and Mr. Chasler responded no. Mr. Rinker stated that to him, 1967 was the turning point when the zoning ordinance was in place. He asked if there was someone living in the lower level of the house and Mr. Chasler stated that he did not know. He doesn't have that information or any evidence of that. That's why they have an alternative position. If they cannot prove that 30 to 35 years ago as to what its use was, and you consider that the expansion, then the expansion should have the same intensity of use as the upstairs level. Mr. Rinker asked Mr. Chasler what the other rooms on the lower level are being used for. Mr. Chasler responded storage and vacant. Mr. Cheran stated that staff did look for building permits showing any changes in uses through the Permits Dept., and our records don't go back that far. In the last seven years, there haven't been any changes through the Permits Dept. That's as far back as staff went to establish its non -conforming use. Mr. Chasler acknowledged that in the past seven years, part of the building downstairs has been used as a residence, because you had an owner -operator. Chairman Catlett asked if anyone is present in favor of the appeal who would like to speak and no one responded. She asked if anyone is present who is opposed and no one responded. The public hearing portion of the meeting was closed. DISCUSSION As the Board members had no questions, Chairman Catlett asked for a motion. Mr. Perry made a motion to Frederick County Board of Zoning Appeals Minutes of July 19, 2005 Minute Book Page 1322 affirm the position of the Zoning Administrator. Mr. Rinker seconded the motion and it passed by unanimous vote. PUBLIC HEARING Appeal A pp; ication #f17-05 of Jeffrey Howelland Peggy Hewell, Griffin, bmitted by Phillip S. Grin, Esquire, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to legal non -conforming land use in the R5 (Residential Recreational Community) District. The subject property is located at 128 Deep Pine Court, and is identified with Property Identification Number 17-4-44 in the Gainesboro Magisterial District. ACTION — APPEAL DENIED Mr. Cheran gave the staff report. The applicants were cited for keeping horses in the R5 zoning district. The Frederick County historical zoning map shows this property was zoned R5 (Residential Recreational Community) District in 1973. This subdivision was created without the benefit of an approved Master Development Plan (MDP); therefore, without a MDP, there are no recreational facilities to board horses. Furthermore, Section 165- 76A of the Frederick County Zoning Ordinance states: "All uses allowed in the RP (Residential Performance) Zoning District" can occur in the R5 Zoning District. Equine or agricultural animals are not permitted in the RP district; therefore, the boarding of horses in this subdivision is not an allowed use. Staff is requesting to affirm the decision of the Zoning Administrator. Mr. Cheran stated for the record that copies of the zoning ordinances mentioned are in the Board's agenda. Mr. Cheran stated for the record that the Howells are here and are represented by Mr. Griffin. Mr. Rinker stated that it says all uses allowed in RP zoning district can occur in R5 district, but that doesn't say it's limited to. Mr. Cheran stated it is staff s interpretation that what is not allowed, is not allowed. Mr. Rinker asked if in the original R5, were livestock or horses allowed and Mr. Cheran responded no. Mr. Cheran further stated that if a Master Development Plan had been created showing these certain activities, it would be allowed; however, this was not master planned. Chairman Catlett stated that under Section 165.76, it lists indoor and outdoor recreational facilities. Are horses not considered an outdoor recreation? Mr. Cheran replied that is correct, but it would be allowed if it had been included on a master plan. If someone asked to do a permitted indoor/outdoor recreational facility, or any other permitted use, staff would look back to see if it's been master planned. If it has not, staff would not allow it. If it is not master planned, you have to apply to get it master planned for the community, and you need at least 500 contiguous acres to even do an R5. Chairman Catlett asked if the Howells individually have the option of going before the Board of Supervisors, or if it would have to be the entire recreational community. Mr. Cheran replied that is correct; every owner would have to make this request. Mr. Griffin identified himself as the attorney for Mr. and Mrs. Howell. Mr. Griffin stated that the Howells have had horses on their property on and off for the last ten years. They have lived there for the last 11 years and purchased the property in the last three to four years. They have not had a complaint, that they know of, prior to Frederick County Board of Zoning Appeals Minutes of July 19, 2005 Minute Book Page 1323 the Frederick County letter that they received on April 27, 2005 from Patrick Sowers. As Mr. Griffin understands the nature of the complaint, it is that they have horses on their property in Frederick County. Mr. Griffin said he had never heard that to be a complaint generally in the public. This particular area is eight lots which are comprised of about 41 or acres. They are not of the size of Lake Holliday, Wild Acres, Shawneeland or others that he believes are required to have the appropriate master plans and set-aside areas for open space and recreational facilities. A 40 acre, eight parcel property simply is not going to meet the burden that's been out there. In spite of the adoption as an R5 back in 1973 by Frederick County, this property was approved by the Frederick County Circuit Court, by George Whitacre, in 1978. In the Deed of Dedication, on page 8 paragraph G, it does specifically say that for anyone who is moving out to the property after 1978, no swine, sheep, goats, cattle or other domestic or wild animals except fowl, horses, ponies and not more than two head of cattle shall be kept or maintained on any tract. Mr. Griffin further stated that the Deed of Dedication has never been amended or modified either by the HOA, Timber Ridge Farms Subdivision; it's never been requested to be modified by the Frederick County Planning and Zoning Department; and, it's never been requested it be modified by the Frederick County Circuit Court Clerk. They believe these Deeds of Dedication are valid and enforceable dating back to as early as their recording date in 1978. Obviously, the Howells relied on the public record at the time they purchased the property and the record that they had been out there the previous seven to eight years with horses. The questions that have come up — are these horses for personal or commercial use. They're strictly personal use as of right now. They have seven horses on the property. They believe there are no limitations that have been provided by the Frederick County Zoning and Planning Department; that you all have the right to affirm, in whole or in part, their recommendation. You all can deny, in whole or in part, or you can modify, in whole or in part. It is not the Howells intention at this time to make it a commercially useable property. It's not their intention to board other horses. It seems to Mr. Griffin that the uses that are provided and the exceptions that are provided are more expansive than the request that's being made by Mr. and Mrs. Howell. Mr. Griffin thinks if the Board liberally interprets, construes or modifies the definition of what a private campground is, that could include the private boarding of horses on a 5.42 acre piece of property in western Frederick County. If the Board believes that a recreational use is the personal and riding of horses on your own property that has so been publicly recorded for in excess of 27 years, to specifically allow horses on the property, Mr. Griffin thinks that meets that liberal definition. They believe based on the information that they have provided to the Board, that the request that the horses be removed from the property is unwarranted and they think the Board ought to deny in part or modify the request from the Frederick County Department of Zoning. Mr. Rinker asked how many horses are there. Mr. Griffin replied at this point there are seven. Mr. Rinker asked if the Howells give riding lessons and Mr. Griffin replied that he doesn't believe that they do. Mr. Rinker asked if the horses are boarded inside. Mrs. Howell approached the podium and answered that the horses have their own shed. Mr. Rinker stated that on a 5.4 acre tract, with the County basically taking an acre out for the house area, leaving 4.4 acres, having seven horses on 4.4 acres is a heavy intensity. Mrs. Howell stated that they have seven, but two of them are leaving. Mr. Griffin asked Mrs. Howell the age of the horses and when are the two horses leaving. Mrs. Howell responded the horses' ages range from 13 months to five years and the two will be leaving probably this weekend. They're going to her son's house; they were just temporarily there until he got his fence up. Mr. Griffin asked Mrs. Howell if it is her intention to get any more horses or if any of these horses have little ones, it would be your intention to keep those, but are you actively trying to acquire additional horses. Mrs. Howell responded she's in Frederick County Board of Zoning Appeals Minutes of July`T9, 9, 2005 Minute Book Page 1324 the process right now that if something would happen to one of her horses, yes she would like to replace it. As far as getting any others, that's something she doesn't know would be in the future. Mr. Griffin asked if the Board would grant her a limited use to board a couple of horses, would she be amenable to capping that number at seven horses and agree not to use the property for commercial uses. Mrs. Howell replied yes. Chairman Catlett asked if anyone is present to speak in favor of the appeal and no one responded. She asked if anyone is present who is opposed and there were several. Mr. Josiah Schavone spoke against the appeal. Mr. Schavone lives opposite the Howells. Mr. Schavone stated the Howells' land has only approximately one half to one acre of cleared land; the rest of it is heavily wooded land. It's hurting Mr. Schavone's property value and the view from his house. When he moved there and received his covenants, he saw that horses were permitted, but that's the HOA covenants. Attached to that was also, in bold, this is zoned an R5 area and you may not have horses here. Mr. Schavone strongly urged the Board to deny this appeal. Mr. Edward Lockwood spoke against the appeal. He and his wife, Barbara, own the lots adjoining the Howells' property. Mr. Lockwood stated that his complaint to the Zoning Administrator brought everyone here today. Mr. Lockwood gave several examples of what precipitated the complaint: horses in his front yard which caused damage to the lawn; the only containment for the horses is some type of a white ribbon type fence; and no effort by the Howells to contact Mr. and Mrs. Lockwood to determine if any damage done by the horses. Contrary to what Mr. Griffin explained, there are probably 120 lots in Timber Ridge Farms. To Mr. Lockwood's knowledge there have been other property owners who thought that they could have horses, but when they were advised that the zoning ordinance did not allow it, they didn't proceed to get them; there are no other properties in the subdivision with horses. Mr. Lockwood further stated that most of the subdivision lots are wooded, and he would have thought that would be a factor in why horses are not allowed. Mr. Lockwood handed out pictures of the Howells' property to the Board members. The horses are concentrated in the front yard and there's no pasture, there's no grass. There's the run-in shed, the piles of hay in the winter that are covered with a blue tarp, the horse trailer, and a riding ring of the white ribbon, so it's not what they believe was the intent of the covenants. Also, there's horse manure dropped in the road. They don't ride them just on their own property because there's not room to do that; they ride them down the roads and apparently aren't willing to clean up after the horses. Mrs. Barbara Lockwood spoke against the appeal and reiterated what her husband, Edward, had just said. Their granddaughter believes they should have a horse and Mrs. Lockwood has explained to her that where they live there are rules that they cannot have a horse, just like where she lives. When she sees the neighbors' horses, she doesn't understand why they have horses and why don't they follow the rules. Mrs. Lockwood stated it's not whether they think it's a good rule or a bad rule, the point is there is a rule. As there was no one else opposed, Chairman Catlett closed the public portion of the meeting. DISCUSISON Mr. Cheran stated that what we're here today for is how the ordinance was interpreted by the Zoning Administrator as to allowed uses in the R5. Staff is requesting that the Board affirm the decision of the Zoning Administrator. Mr. Wells asked if this has always been R5 and Mr. Cheran replied yes. Frederick Count} Board of Zoning Appeals Minutes of July 119, 2005 Minute Book Page 1325 Mr. Griffin again approached the podium to disclaim remarks made by Mr. Schavone and Mr. Lockwood. Chairman Catlett stated that it seems a number of people have a number of concerns but to bring it back into focus, it is this Board's responsibility to determine whether the zoning for this property does allow horses. Chairman Catlett asked Mr. Cheran if this property, as a part of R5, does not have an option to trying to request rezoning for this particular parcel. Mr. Cheran responded that rezoning is always an option. However, a rezoning would not be allowed in this district because the Comprehensive Plan doesn't call for that and it's outside our SWSA area. Mr. Rinker made a motion to uphold the Zoning Administrator's determination. Mr. Perry seconded the motion and it passed unanimously. PUBLIC HEARING Variance Request #18-05 of Robert D. Brown, for a 35 foot side yard variance. This property is located off of 678 Lake Serene Drive, and is identified with Property Identification Number 31B-1-18 in the Gainesboro Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran gave the staff report. Research of Frederick County records note this property was created in 1972. Frederick County adopted 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, with no rear setbacks requirements. Frederick County amended its ordinance 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 50' on the sides. Existing houses on the lots in the vicinity appear to contain setbacks consistent with 15' side yards. Mr. Cheran further 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 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 is seeking a variance of 35 on the side yard. Should this variance be granted, the building setbacks for this property would be 15' on the side yard. It appears that this variance meets the intent of the Code of Virginia. This request from the current setbacks of the RA zoning district may be justified. Mr. Cheran stated for the record that Mr. Brown is present and can answer any questions from the Board. Mr. Brown approached the podium and identified himself. Mr. Brown stated that the approval of this variance request will not be detrimental to the adjacent properties, and they support this request as evidenced by the letters included with this request. The character of the area will not be changed as it will upgrade this facility to the character of the rest of the area. This request also meets the restrictive covenants and setback requirements of the Lake Serene Subdivision. Mr. Brown bought the property with being able to do this in mind, not being aware that there were 50' side yard setbacks applicable to five acre lots when this one is a little less than an acre. Frederick County Board of Zoning Appeals Minutes of July 19, 2005 Minute Book Page 1326 Chairman Catlett asked Mr. Brown if anything has changed since the last time he made this request before the Board. Mr. Brown responded no. Chairman Catlett asked if anyone is present in favor of the request that would like to speak and no one responded. She asked if anyone opposed would like to speak and no one responded. Chairman Catlett closed the public hearing portion. DISCUSSION Mr. Wells asked Chairman Catlett to bring him up to date about the prior request. Chairman Catlett stated that this came before the Board within the last several months for a variance request which was denied. Mr. Cheran stated that this application was brought before the Board last year for the`same building footprint. The Board has approved variances in this area because these lots were recorded without setbacks. Many of the cases the Board has had before it, if it's not vested or recorded on the plat, they fall by today's zoning ordinance. Mr. Cheran further stated the Board has heard three variance requests from the Lake Serene area. When Mr. Brown initially made his request, it was a reach for a hardship case determination. Since then, it is staff's position after doing an on-site review, that this application meets the stringent requirements of the Code of Virginia. Mr. Rinker asked Mr. Cheran when Mr. Brown builds and gets his building permit, will he be required to have a survey for those 15'. Mr. Cheran replied that he, as Zoning Administrator, makes them do it; he requires surveys. Mr. Perry asked if a Health Dept. permit has been issued for this and Mr. Cheran said yes; Mr. Brown is in compliance with all the other reviewing agencies. Mr. Perry stated that the applicant is seeking a variance of 35' for both side yards because it's now at 50' and he's cutting back to 15'. Actually, the original residence is still going to be in violation by one foot, 2-3/8". Mr. Perry asked if technically, should the application be for 36' %2' variance? Mr. Cheran responded yes, to get it cleaned up, it should be. Mr. Scott made a motion to approve the request for a 36' 2-3/8" side yard variance. Mr. Shenk seconded the motion and it passed unanimously. OTHER Mr. Cheran gave an update on two recent appeals heard by the Board. The Dutcher appeal will be going to the Board of Supervisors in August. It's to be heard by the Planning Commission of July 20th, if it gets heard because the agenda is so large. The Beatty appeal was supposed to go to Court on July 27th, but that case has been postponed. Mr. Cheran introduced Mr. J. D. Kirby to the Board members. Mr. Kirby is the Zoning inspector for the Department of Planning and Zoning and he will be working with Mr. Cheran. Mr. Kirby will be presenting to the Board at a future time. Frederick County Board of Zoning Appeals Minutes of July`T9, 9, 2005 Minute Book Page 1327 As there were no other items or new business to be discussed, the meeting adjourned at 5:05 p.m. by unanimous vote. Respectfully submitted, Theresa B. Catlett, Chairman Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Minutes of July 19, 2005 Minute Book Page 1328 c� = 00 APPEAL APPLICATION #19-05 w4� LAX, LTD. Staff Report for the Board of Zoning Appeals w Prepared: August 8, 2005 yw 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: August 16, 2005 - Pending LOCATION: The property is located at 115 Winterberry Court in the Oakdale Crossing Subdivision. MAGISTERIAL DISTRICT: Shawnee PROPERTY ID NUMBERN: 54I-2-65 PROPERTY ZONING & USE: Zone: RP (Residential Performance) District Land Use: Residential ADJOINING PROPERTY ZONING & USE: Zone: RP (Residential Performance) Land Use: Residential Zone: RP (Residential Performance) Land Use: Residential Zone: RP (Residential Performance) Land Use: Residential Zone: RP (Residential Performance) Land Use: Residential APPEAL: To appeal the decision of the Zoning Administrator in the administration of Section 165- 29 of the Frederick County Zoning Ordinance pertaining to private entrances. REASON FOR APPEAL: The applicant contends that a private driveway on a collector road was approved by VDOT. Appeal Application #19-05, LAX, Ltd. August 8, 2005 Page 2 STAFF COMMENTS: The applicant is appealing the decision of the Zoning Administrator regarding a private driveway entrance onto a major collector road. The Frederick County Zoning Ordinance does not allow any private driveways onto major collector roads unless they meet the intent of Section 165-29. Any private driveway onto a major collector road must provide for a safe entrance. This entrance does not meet the requirements of the zoning ordinance as it is less than 150 feet from the entrance to the Oakdale Crossing Subdivision (Crestleigh Drive). Furthermore, this private driveway is currently located in an 80' road efficiency buffer which is included on the approved master development plan for Oakdale Crossing. This constitutes a violation of the Frederick County Zoning Ordinance, the master development plan, and subdivision plan for Oakdale Crossing (Exhibit A). The applicant should have contacted county staff prior to applying for this entrance permit; staff would have denied the permit. The Virginia Department of Transportation (VDOT) issued a private entrance on December 15, 2004; as noted in the enclosed e-mail staff received on August 8, 2005, from VDOT. Any entrance must be in compliance with the Frederick County Zoning Ordinance, and supercedes any VDOT requirements (Exhibit B). Therefore, this private driveway entrance is in violation of Section 165- 29 of the Frederick County Zoning Ordinance, and does not meet the required safe distance onto a major collector road (Exhibit Q. STAFF CONCLUSIONS FOR THE AUGUST 16, 2005 MEETING: Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Section 165-29 of Frederick County Zoning Ordinance regarding, a private driveway entrance on to a major collector road. ' % V 5 V � � h� 0 Z v' � � Y S, �� O J •�" J 1 5AD m s� W LL .n O 0 ° QPM^ CUSHEN 5414 3 23 J BL ALLEMONG Ja bSON/SPY 54H 3 24 z "2 �Q 8L x E N",9 by 1,1 SZ £ 410 0N3ybS HS Y b !l m N Nbp ybs b 92 kpy ybs EEL b m OLNb0PS 3 p �z 1 E HYS p NbHO b9Z mSL E Q� y �37NJ3h N g xX �n j 33yynlyt�p pNy�h dS r =0 4 700 0 9 b3NyHN� LL £k 3Na bd ! 773E AIV yJl/Ly LL S H4S b NOSdWOHl sNL77pJ� £ a s by � h T o crw U 6 F o Q O � a W J Y vyi g 27 SNIFFLER m 54E 7 2B CRIM 54E 7 29 o�N�R� �10RE O o M 000"i �N p RV SSORE ZN ypE ZNE 1 32 0 OLO I a •rte 4i� 62.E i LO �e CDy �!g =n c Fp�OR01 p`�yo� ,D 1 _0 Z 541 2 des N LO W ILL v � { � Q LO LO r MN i/ dd tJ e �s ' s 9y ✓ b'G/ z - 1y`s`' o��9 G b:a v W 1 N m do N BS S9 �9 O 8 MILLER 19 0 541 2 64 E9r z L 2y i t >� 773ybbPs IMC U � U � x Z M 0 W E _ Q m m z .o � r wo a N 1 S Y N Y � � 0 Z v' � � Y S, �� O J •�" 1 5AD m LL .n O � Q J d m 54 SM3ylbK,s Q ! L L cps ONb770H !L June15,2005 LAX, LTD Attn: Frank Nagel 101 Providence Drive Winchester, VA 22602 COUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/665-6395 CERTIFIED TVIAIL RF: 115 Winterberry Court Y ioilerby Ideriffication Number (Pi �Tj: 541-4-63 RP (Residential Performance) Zoning District Dear Mr. Nagel: This letter is regarding a driveway located on the above -referenced property that exits onto Senseny Road. i visited the property on June 10, 2005, and noted a driveway exiting to Senseny Road. In accordance with Section 165-29(10) of the Frederick County Zoning Ordinance, a private drivewa;, on a collector road shall only be allowed if a safe entrance is provided. Therefore this driveway constitutes a violation of the provisions of Section 165-29(l0). This office will not issue any certificates of occupancy for this property until all of the violations of the Frederick County Zoning Ordinance have been abated. Thi:, office will allow thirty (30) days from receipt of this letter to resolve this violation. Specifically, resolution of this violation may be accomplished by removing and closing this driveway on the above -referenced properly. Failure to comply with the Zoning Ordinance could result in a criminal complaint being filed against you. You may have the right to appeal this notice of violation within thirty (30) days of the date of this letter- in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable, if it is not appealed within thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165-155A (1), of the Frederick County Zoning Ordinance. This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other unforrnaiion you may want to su'brnit, and a $300.00 filing fee. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. Contact me at (540) 665-5651 with any questions you may have. Sincerely, z � Z�e I Mark R. Cheran Zoning Administrator MRC/bad 107 North Merit Street, Suite 202 a Winchester, Virginia 22601-5000 2 G\ ± / \»b UCS �� 2 / 3 c / « & � ± \ 6 < O R � 0 m// 3 f/� 2 3/\ k)-\ m ±2 -j w3\ %2¢ U)/� 0 Z/9 2 3\/ //LU z. L,- Lu //< «�$ 73� U k 2 O/m LU /�h UJ 2u C: Z2« c27 Lij F-/ 0S2 O ujC) /39� Exhibit T" Permit No. oott5-1234-825 i ®, COMMONWEALTH of VIRGINIA DEPARTMENT OF TRANSPORTATI10N EDINBURG REBICeNG"V 1*111p A. Shucae 14031 OLD VALLEY PIKE JNRXYA. COIF '„'OMWSSIDNER EDINBURG, VA 22824 Rp511E)MT 9a 0 R (W) 335-1832 FAN (8s0)asa-59ar December 15, 2004 LAX Ltd. Ref: Private Entrance Permit 101 Providence Drive Route: 657 Street Name: aenseny Road Winchester, VA 2.2603 Located at: South side of Rt. 657 - 0.03 miloe Wast of Rt. 1265 Subdivision: Oakdale Crossing Frederick County Dear LAX Ltd.: According to your request, you have pettrAission and will be required to do the following marked items to your entrance: While working on the tight -or -way, it will to necessary to erect signs according to VDOT's standards prior to staring work. These signs are to be removed daily. A minimum of ** feet of ** inch approved culverd pipe %ill be required. ® Please give me a call at (540) 535-1532 when the pipe has been delivered at the site. Soil moisture conditions wilt govern when the cativert is installed. Z If rock is encountered which requires drilling and/or blasting, the entrance is to he graded by you at no cast to the Virginia Department of Transpo+°tation. You will be required to place crushed stone from the right -of -Way to the edge of the roadway. ® All graded slopes are to be Z z/z:l or flatter. You will be required to topsoil and reseed all distw-bed turf on the State's right-of-way. Z You will be required to flatten the slopes in a unifo= manner and restore there to the satisfaction of the Vi rgitiia Department of Transportation. The ditch line will have to be trstored. provisions will be Made for siltation control within the State's right-of-way. VlrgInlaDOT OM WE KEEP v]A(31NIA MOVING l 0'� �rSi+GSC+01� X31 U'v*UIS HE ONIA*Z00A i2 51 lHJt0,OI- `3 Prlvate Entrance permlt DKet ibcr 15, 240_ d page 2 [R] AN work is to be completed within 180 days, if an extension of time is ±1ePdrd. contact this office. Zj The entrance may serve it maximum of two living units. Fj Should this Iand parcel subdivide or develop commercially, this private entrance permit will be invalid, The applicant will be required to apply For a new pezmit which fits the circumstances appropriately. ® Asphalt aiu o.r coucrcic applications to entrance must be inspected by VDOT and approved prior to inAnDation In connecting to State readwry. When scheduling asphalt andlor concrete lnslallatie s, plea de notit'y the VDO'T Area ffeadquarinrs at tine telephone numaber lusted below in advance Car lnspectiom FINAL INS PEC'lilONI Tt UM§ : Upon use/occupancy of the property served by the private entrance described under this permit, the pt;tmittec shall contact the Asea Superintendent's Office to request an inspection. Applicatnt is required to present or!lnml permit at time of inspection,. ® Other: pipe size required to be 30' of 12" (minimum). Pipe should be either concrete or metal. This permit does not grant permission to grade on the pmpertrty of others or disturb in anyway utility poles or underground lines. Attached is a copy of a sketch of our standard private entrunce for your information. Should you have any qucstlons during construction and upon completion, please notify me at (540) 535-1832 so i may inspect this work. Sincefrly, Robert b. Dawkins Transportation Operations lvlanager R /elp Attachment' Standard PE.I Detail xc, Edinburg Residency Office BLCA5FJAP'PRQVAL FOR MOT USC ONLY: Follow-up Inspectlon/Approval Performed Authorized by: Remarks, Title: (date) Ho *d LW+c29tot3;931 I �_:�I ,.IU to '9' - USc Farm 13P-2 Rev:EM! C-7/12/01 �•uar PRIV� TE ENTRANCE AP0jQd.4 Grid #: Mia is not a permit and does rear, 19 you. psrtrtissian t4 work on )Way. ,if yoacr aPP1[cati0n tT in order arad a permil it necessary, it Vill be forivardo'd to you. Name:S.S4 or Tax 1.0. 4t Address: . 1 - u c �= `� Phone -0: ( L-6 7 - ' 13 ;wog) `' 0.MY Fax 4: Subdivision Name & Lot No., (If applicable) Entrance will be located on _ (street name) / / �i _ (routs #}. Entrance will serve: (check one): �' single l=arnfly Residence Cortimeroist SusinesrOndustrfal Farm Use oftor (Explaln: _ 1 Does the street have curb r4 Yes IN@ Sidevea-V Yes /eno_ Dra`r a sketch of fhs proposed antrarece with location, of ne at latera ctti gtreats shown: (Show Notch Ar 1 R 4 "APPLICANT APPLICANT $HALL MARK P°rtrtted Name of ,Applloaht or Signature of Applicant or Age This application will be returned mailed _ STAKE." °' " Date: id -yo -a z / meant Pleas indicate how you would like it received: faxed I� called to bs olcked up All etpplia*ab& items an d6v frVrir Mat befilled var completely before your request esus be considered. rf not applicalde, ijt&cate re/rt- Please recheck irArrtuttldu furnislted to avaid dctcey. 11 applicubia+, rranaymerrt al'fess to VDOr is required. ]VGs1�3iN0p US? ONLY: : Is VDPT PermltlAppmval Requlrvd? YES It so, type of permit/Approval Required: _k::frPtivate Entrance Porm't (Superintendent) Approval Letter (Permit & 5ubdivi5lori Section) Land U98 Pigrmit ;Fgg & Bond Heguired) NO � (Private Road/Subdlvislon ;ether ) OTHER — Subdlvisldn cu,rentiy under constructlon, proposed for Inclusion In VCOT"s Secorda.h+ Road System. '- i R R fi♦ LL r .t r f•* x R 4 k fi fi �••{�• r f R< 4} f t Type of Entrance: � pE �, Curb & Gutter (Type Fee Required: Yes tNo) Tote) Fov $ `( applicablg) (Minimum $40 1" entrance, $5.00 each additional) as Bond Amount: $ _ (Mlrlmurn $1,500 per Q"*. Ance) cailon Pecclved fay: rte! Title_ % f� �.% I Data: /.Z ,ax, Ltd. Private Entrance off Senseny Road - Lot 65 Exhibit "C" Subject: Lax, Ltd. Private Entrance off Senseny Road - Lot 65 Date: Mon, 8 Aug 2005 08:26:48 -0400 From: "Ingram, Lloyd" <Lloyd.Ingram@VDOT.Virginia.gov> To: "Mark Cheran (E-mail)" <mcheran@co.frederick.va.us> CC: "Hawkins, Robert" <Robert.Hawkins@VDOT.Virginia.gov>, "DeHaven, Eric" <Eric.Dehaven@VDOT.Virginia.gov>, "Ingram, Lloyd"<Lloyd.Ingram@VDOT.Virginia.gov> Mark, A VDOT private entrance permit was issued to Franklin Neitzel of Lax, Ltd. for the subject private entrance. However, as the County ordinance governing access to the Senseny Road Corridor is more restrictive than VDOT's requirements, the County's decision to close the entrance supercedes VDOT's approval. If I can be of further assistance, do not hesitate to call. Lloyd A. Ingram Transportation Engineer VDOT — Edinburg Residency Land Development 14031 Old Valley Pike Edinburg, VA 22824 (540) 984-5611 (540) 984-5607 (fax) of 1 8/8/2405 8:29 AM Exhibit "D" � m � a cn y VA. SEC. ROUTE 657 SENSENY ROAD Z 60' R/I � _ 6783 \ 682{2 683.3 / 4r `� 567324E"E 16130' 685` 686.6 676x2 -S 715Oa"-E_744�-/R_S _,_... _ IRF 689x2 689.5 _ 6885.1 X85 1�9 I X 3.3 6 6893 -668zt�j \ NR866J\9 \ \ \ �i' \684.8 I 688x2/- LOT, 65 \686x5 fT. SND OF -1-- \ 665=8 666: 67Q41'(P24 677x7/ \ \ / \ �'-' / 6712 _ -i \ i 1s. EX. 20' DRAINAGE ESWT \ �o 682W -- ' \-- Vit\ 677.71_ 67� \ ' ` N\\ 0.4 �P Py 513.34 73.3 DECK 678.7 r- _ �� slag\ G�� II ha, 128.24'y ��_'6.1 ase .1 snxs 673.4 11.4 THREE STORY 2.3 615 s B/ O/ z s BRICK DWELLING - 6736 LOT 64 * LEE= 694.20 # 115 / LOT 66 673x1 673.4 / Gj / B GEE=693.93 LEGEND - P BEE=673.14_ _- _.. "i -�,� , J6n.i --"i 16.9' IRF - IRON ROD FOUND�7 5 N IRS - IRON ROD SET- - c7 eo 680. m BRL - BUILDING RESTRICTION LINE ui TRB - TELEPHONE RISER BOX TVRB - CABLE N RISER BOX 681 23.4' GLM - GAS UNE METER 688:10 35 VRL GV - GAS VALVE 1 691x8 CPP24 - 24' CORRUGATED PLASTIC PIPE z 6901\ WM - WATER METER / 7 692& FE - FINISHED FLOOR ELEVATION 691x2 GFE - GARAGE FLOOR ELEVATION 93. 69: BE - BASEMENT FLOOR ELEVATION �- WOOD UTILITY POLE / 693.4 - X - - FENCE LINE V� 721x9- EX SPOT ELEVATION % WNTERBERRY COURT -725- -EX. CONTOUR 50' RAW OVERHEAD UTILITY LINE M.a - 92.8 692`^ CONCRETE 69i-_] DRIVEWAY1x 921 693V 692#9I o / I I I I / EXIS77NG DWELL/NG RS/ FEE=693.39 \p85.J FLOOD NOTE: ZONE C COMMUNITY NO.: 510063 PANEL: 0115 B DA 7F- 07-17-78 GRAPHIC SCALE CURVE TABLE 4 0 20 40 80NO. RAD/U ARC TAN BEARING CHORD DEL TA Cl 50.00' 147.12' 25.48 N 70 45'13" 45.40' S4 DO'00 NO TES: 1 inch = 40 ft. SURVEYORS CER MCA TE 1. NO 777LE REPORT FURNISHED. I HEREBY CER 77FY THAT THE INFORMA77ON 2. PROPERTY IDEN77FICA77ON NO. 541-2-65 SHOWN ON THIS PLAT /S BASED ON AN ACTUAL 3. EASEMENTS 077AER THAN SHOWN MAY EXIST. FIELD SURREY MADE UNDER MY SUPERKS/ON 4. THIS LOT IS SUBJECT TO A 10' SLOPE AND ON JUNE 8, 2005 AND THAT TO THE BEST OF 9RA/NAGE EASEMENT ALONG WIN7FRBERRY COURT MY KNOWLEDGE AND BELIEF 7HERE ARE NO 4NO SENSENY ROAD AND A 10' U77L/TY EASEMENT ENCROACHMENTS OR WSIBLE EASEMENTS UNLESS 4LONG ALL PROPERTY LINES. SHOWN. HOUSE LOCA 17ON & AS -BUIL T TOPOGRAPHIC SURVEY LOT 65 OAKDALE CROSS/NG 115 W/NIERSERRY COURT SHAWNEE MAGISTERIAL DISTRICT FREDERICK COUNTY, ORGINIA JUNE 9 ,2005 ID 6470HLS �51, 'TH OF Dj 9u las C. No_ 00/11/ 97 X04 ND sUR'lsl DAF 60 NORTH LOUDOUN MARSH & LEGGE WINCHESTER, VIRGINIAS22601 Land Surveyors, P. L. C. PHONE (540) 667-0468 FAX (540) 667-0469 APPLICATION FOR APPEAL IN THE COUNTY OF FREDERICK, VIRGINIA MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT 1. The applicant is the owner X other . (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: LAX Ltd. NAME: ADDRESS 101 Providence Dr. ADDRESS: Winchester, VP 22602 TELEPHONE: (5 4 0) 667-8013 TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): 115 Winterberry Court, Oakdale Crossing Subdivision County of Frederick, Virginia Southside of Route 657 (Senseny Road), .03 miles West of Route 1265. 4. Magisterial District: Shawnee 5. Property Identification No.: 541-2-65 6. The existing zoning of the property is: RP ( Residential Performance) 7. The existing use of the property is: 8. Adjoining Property: USE North Residential East Residential South Residential West Residential Residential ZONING UN RP RP RP 9. Describe the decision being appealed. (Attach a copy of the written decision.) The decision requires that a driveway, which exits onto Senseny Road, be removed by July 15, 2005, because of a Violation of Frederick County Code Section 165-29(10). 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) The driveway was approved as safe by VDOT permit no. 0005-1234-825 and complies with the requirements of Section 165. 11. Additional comments, if any: 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 in 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 Sarah I. Miller Address 113 Winterberry Court, Winchester 226 Property ID 541 2 64 Kirk & Fawn C. Papstavrov Address 100 Crestleigh Dr., Winchester 22602 Property ID# 541 2 66 Richard G. and Brenda A. Vandroch54I Address 110 Winterberry Court, Winchester 226 Property ID # 2 67 Windsor Hill Estates Homeowner's Address 2023 Valley Ave., Winchester 22601 PropertyID# 54H -3-1A Gregory S. and Elizabeth A. Eisenhauer Address 105 Foxbury Lane, Winchester 22602 Property ID # 54H-3-1 Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # )2 )2 CO Special Limited Power of Attorney County of Frederick, Virginia Frederick Planning Web Site: www.co.frederick.va.us IQ N Department of Planning & Development, County of Frederick, Virginia, 107 North Kent Street, Winchester, Virginia 22601 Phone 540-665-5651 Facsimile 540-665-6395 Know All Men By Those Present: That I (We) (Name) LAX, Ltd. (Phone) (5 4 0) 667-8013 (Address) 101 Providence Drive, Winchester, VA 22602 the owner(s) of all those tracts or parcels of land ("Property") conveyed to me (us), by deed recorded in the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by Instrument No. on Page Parcel: Lot: Block: Section: do hereby make, constitute and appoint: (Name) Nate L. Adams, III, Esq. and is described as Subdivision: (Phone) ( 540) 667-1330 (Address) 11 S. Cameron Street, Winchester, VA 22601 To act as my true and lawflul attorney-in-fact for and in my (our) name, place, and stead with full power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: ❑ Rezoning (including proffers) ❑ Conditional Use Permits ❑ Master Development Plan (Preliminary and Final) ❑ Subdivision ❑ Site Plan My attomey-in-fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. In witness thereof, I (we) have hereto set Signature(s) ind and seal this day of fll tbi , 200-6-, State of -Virginia, City/f ( To -wit: a Nota Public in and for the urisdiction Notary J aforesai , certify that the person(s) who signed to the foregoing instrument personally ap eared before me and+as acknowledged the same before me in the jurisdiction aforesaid this ,` day ofl, „r / , 200 . 0, ;,-�ry�_ °>,�_,,.�-�.,:1 My Commission Expires: Nofary Public UABevlspecial Limited POA.wpd AGREEMENT APPEAL # 7— I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described 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 knowledge, true. SIGNATURE OF APPLICANT. . DATE SIGNATURE OF OWNER—_-` / � DATE 7 (if other than applicant) -OFFICE USE ONLY- BZA PUBLIC HEARING OF ACTION: - DA E - APPEAL OVERRULED Li APPEAL SUSTAINED File L.an O:�d Use ApplicationMpplication Foms%APPEAL Revised-. 01/14/03 SIGNED: DATE: BZA CHAIRMAN _ ?.-'!�D � VARIANCE APPLICATION #20-05 WILLIAM T. DRAKE. Staff Report for the Board of Zoning Appeals Prepared: August 8, 2005 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 thein 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: August 16, 2005 - Action Pending LOCATION: 115 Essex Circle MAGISTERIAL DISTRICT: Opequon PROPERTY ID NUMBER(S): 75E-1-3-153 PROPERTY ZONING & USE: Zoned: RP (Residential Performance) 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: 2.4 foot side yard variance for an existing attached garage REASON FOR VARIANCE: Survey completed with the purchase of the home on May 20, 2005 shows a distance of 27.6 feet from the garage to the boundary Iine. A variance issued in 1982 allows for a 30 foot variance. Variance Request #20-05, William T. Drake August 8, 2005 Page 2 STAFF COMMENTS: This property was subject to Variance 04-82 which was granted in 1982. This variance allowed the dwelling to encroach five (5) feet into the thirty-five (35) foot side setback. The Frederick County Zoning Ordinance requires building setbacks for this corner lot in the RP (Residential Performance) to be: Front 35'; Right Side- 35'; Left Side -10'; Rear - 25. The setbacks resulting from Variance 04-82 are: Front -35'; Right Side- 30'; Left Side -10'; Rear -25'. (Exhibit A) The current survey of the property done on May 12, 2005, shows the dwelling at 27.6 on the right side, not at 30 feet as was granted with Variance 04-82; therefore, the pervious owner built this dwelling in violation of the right side setback. (Exhibit B) STAFF CONCLUSIONS FOR THE AUGUST 16, 2005 MEETING: The Code of Virginia, Section 15.2-2309(2), 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. The applicant is seeking a variance of 2.4' on the side yard setback. Should this variance be granted, the building setbacks for this property would be: 27.6'. It appears that this variance meets the intent of the Code of Virginia, Section 15.2-2309 (2). This request from the current setbacks of the RP zoning district may be justified. l£Z £ i z ^ � 3SL J/ 213Ni1(11 `- Sll £ t 3SL 2101Atl1 e£6 S t y� S a 3 91 13 92 L E13S11 N/ y ti ti d 4p 75E 75"'CE s w U � O r a Y N K w O SI � W � r Y Y ` r U � h p QD co �C LO o C3 CN N ' M U E o ai C6 ' C6 - ll_ _ � o LO0 W 3 z ^ � o�2 Y =w ti ti MZ w� r s w U � O r a Y N K w SI �r p QD co �C LO o C3 CN N ' M U E o ai C6 ' C6 - ll_ _ � o LO0 W 3 Arexhrrirk ClTann#u Dryartmeut offanning aub 4 darlayment DIRECTOR Exhibit "A" JOHN T. P. HORNE P. O. BOX 601 9 COURT SQUARE DEPUTY DIRECTOR WINCHESTER, VIRGINIA 22601 STEPHEN M. GYURISIN April 21, 1982 Mr. Edwin Wise c/o J, Stowe Assocs. P.O. Box 2600 Winchester, Virginia 22601 Dear Mr. Wise: This letter is to confirm the action taken by the Board of Zoning Appeals on April 20, 1982, with regard to your request for a setback variance. The Board of Zoning Appeals has approved your request for a 5' setback variance. If you have any questions, please do not hesitate to contact this office. JTPH:dll 703/662-4532 Sincerely, hn T. P. Horne THE APPLICATION OF EDWIN WISE REQUESTING A FIVE FOOT SETBACK VARIANCE FOR A 21' X 22' GARAGE. THIS PROPERTY IS ZONED R-3 (RESIDENTIAL) AND DESIGNATED AS TAX MAP 75-(E), CIRCLE 1, BLOCK 3, PARCEL 153, IN THE OPEQUON MAGISTERIAL DISTRICT. MIPAINOR 1044 -roll 0 THE APPLICANT WISHES TO CONSTRUCT AN ATTACHED TWO -CAR GARAGE THAT WOULD EXTEND FIVE FOOT INTO THE REQUIRED SETBACK AREA. THIS WOULD REQUIRE A FIVE FOOT VARIANCE OF THE SETBACK REGULATIONS, FOR THE SIDE YARD AREA. THIS PROPERTY IS ZONED R-3, RESIDENTIAL -GENERAL. THE R-3 ZONING REGULATIONS CALL FOR A 35' MINIMUM SETBACK. IT SHOULD BE NOTED THAT MR, EDWIN WISE IS EXPECTED TO CLOSE ON THE PURCHASE OF THE ABOVE REFERENCED PROPERTY PRIOR TO THE B.Z.A. MEETING OF APRIL 29, 1932, 8 w Exhibit "B" THIS YS TO CERTIFY THAT ON MAY 12, .2005 ViAT I MADE TANOACCURATE R EN I SURVEY VISIBLE . OF THE pFtEMi3E� 5:10'vIN IILY;EON AND THAT THL�tE ARE NO D ON THE GROUND OT14ER THAN THOSE SIi.OWN HEREON. THIS LOT IS LOCATED IN HUD FLOOD lVE ZONE JULY , AREA OF MINIMAL FLOODING AS SHO:�N ON FIRK MAP 510063 0200 B Et L LOT `86 I L0r I's7 i 5 47012 rJ�•� EL TEL 260-40. .. PED ppE 95 LOT 153 17,676+ R=81.30' ESSEX CIRCLE 60` R/W FURS17ENAU SURVEYING (540) 662-9323 111 SOUTH I-OUD4UN STREET W NCHESTER, VIRGINIA 22601. ;. EST. 1996 NOMBMVA- ASSOC. OF SURVEYORS — A IRF LLJ 110 �Ll v CHRISMP R D. FU:iS:rNAU Q Mo_ 2721 04" r - qN'D SURv�� 4 0 N _j Q0 O t!7 Q SELLER: WISE PURCHASER: DRAKE DEED REF= DB 546 PG. 442 PLAT REF: DB 443 PG -310 TAX MAP ID: 75E-1-3-153 NO TITLE REPORT FURNISHED HOUSE LOCRTION SURVEY LOT 153 SECTION 3 FREDERICKTOWNE OPEOUON DISTRICT FREDERICK COUNTY, VIRGINIA DAB TB: MAy12, 20F SCALE: V - 30' w.o, 057-3 APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT 1. The applicant is the owner other . (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: W I I i A r!xI DrmcE NAME: ADDRESS i15 EASE* (LAV- ADDRESS: rkE��s CT`s �J� Z2iass TELEPHONE: S`io - S(og - 0%2S TELEPHONE: X0%3 111 1�z() 55 D Cell 3. The property is located at (give exact directions and include State Route numbers): L. ov tS3 \ SEC- 'LFL (�AenLw E AJE k.,xo SSE � C_�Q . 4. The property has a road frontage of 239.01 feet and a depth of q� O. S f feet and consists of 3lv acres (please be exact). Page 5 of 9 5. The property is owned b by deed from E o , a y W,II, gyp, �a�akt as evidenced c, .56 recorded (previous owner) in deed book no. ' a� on page �i'� of the deed books of the Clerk of the Court for Frederick County. Please attach a copy of the recorded deed. 6. Magisterial District: OPF_ G 000 7. Property Identification No.: 75t — / —3 -15.3 8. The existing zoning of the property is: tR65%OEtJnO L 9. The existing use of the property is: I&S1Oe-MP. t� 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 2. q,, SIDE gaeo VAZ An►c�C FOP- A,J A-IryACA O (naa_"GE, 12. List specific reason(s) why the variance is being sought in terms of - 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 ,+ SQJ E`� C o.+, 1 ETED t� Til 1�1 E PGl eCa-� A S E 6 F I=ioE (VIAE 20 ?OoS S)Ao�S '-FO 1 i i= !1 P�� C � SGS EO TZ %tis a1t� 1-.s L_ � 41, �3 'I - Page 6 of 9 USE ZONING North &5 East South West 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 2. q,, SIDE gaeo VAZ An►c�C FOP- A,J A-IryACA O (naa_"GE, 12. List specific reason(s) why the variance is being sought in terms of - 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 ,+ SQJ E`� C o.+, 1 ETED t� Til 1�1 E PGl eCa-� A S E 6 F I=ioE (VIAE 20 ?OoS S)Ao�S '-FO 1 i i= !1 P�� C � SGS EO TZ %tis a1t� 1-.s L_ � 41, �3 'I - Page 6 of 9 CoA CA e c-) 14. The following names and addresses are all of the individuals, firms, 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 notified by mail of this application: NAME oE�T �Ec�y Address W.1- SSE'( C -AQ,-. Properly ID # ? - —t ��►t_r��► MGTNTu�.� Address 103 N GC_d rn A cAc G; Property ID # 2Sq-1 00 L1OO(p S3 Address Zoo GAp-OL jE AJC, Property ID # I Cb -I Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Page 7 of 9 15. Provide a sketch of the property (you may use this page or attach engineer's drawing). 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. Page 8 of 9 W137768 CURATE SURVEY Or, THE THIS Y TO CERTIFY THAT ON MAY 12 , •2005 Tt�AT ASEMENTSNORCENCROACHMENTS VISIBLE . PgEMx30S G:lOu7N HEREON AND THAT THERE ARE NO E ON THE GROUND OTHER THAN THOSE SHOWN HEREON. THIS LOT IS LOCATED 1N HUU FLOOD JZONE ULY 17, 1978 M7NXMAL FLOODING AS SHO'IN ON FIRM MAP 510063 0200 D EFFJrCT1VE I Lor47012 TEL 13] P ED 604C,OU LOT 150 17,6764FRAIME J SHED / SHED j 30.2 2. 23.9'8."i' IC ST OOF'� ® 35. R=346 =81.33' { D 411 a ELEC. {P� Ip `M H o i R:z Q/(� i�ti3�Q • N ESSEX CIRCLE 60` R/w 323 -iV (154M Q652-01 ig JN STREOf � o ° `d Cf -NIA 22601 EST. 1996 .�VA - A SO` .CSF OI. A I IAF L.b/rRD. V �1 o CyRMTO FURS tP AU No. 2727 -Y i/ � p ot ��! SURA 0 -i Qo /mkv- 'c- C) to Q SELLER: WISE PURWASER: DRAKE DEED REF, DB 546 PG. 42 PLAT REF. OB 443 PG.3!0 TAX MAP ID. 75E-1-3-•153 NO TITLE REPORT FURNISHED HOUSE LOCATION SURVEY LOT 153 SECTION 3 FREDENE UON DISTRICT � FREDERICK COUNT` VIRGINJIA DATE: MAY12, 2OD5 SCALE I - 3 0 W.O. 053 AGREEMENT VARIANCE # -� (Number to be assigned by the Planning Dept.) 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 —uo ��' J'fT DATE j -u L j S, u SIGNATURE OF OWNER DATE (if other than applicant) -OFFICE USE ONLY - A BZA PUBLIC HEARING OF !6. o s ACTION: -'DATE- APPROVAL SIGNED: BZA CHAIRMAN DENIAL DATE: Page 9 of 9 VARIANCE APPLICATION #21-05 WILLIAM G. BUSKO Staff Report for the Board of Zoning Appeals Prepared: August 8, 2005 Staff Contact: Mark R. Cheran, Zoning Administrator This report is prepared by the P'rederick 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: August 16, 2005 - Action Pending LOCATION: Off of Double Church Road (Route 641) on West Street (Route 849) in Lone Oak Subdivision MAGISTERIAL DISTRICT: Opequon PROPERTY ID NUMBER(S): 8613-2-A-17 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) Land Use: Vacant ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) South: RA (Rural Areas) East: RA (Rural Areas) West: RA (Rural Areas) Use: Vacant Use: Residential Use: Residential Use: Vacant VARIANCE REQUESTED: 35' east side -yard variance, 30' west side -yard variance and 75' rear variance REASON FOR VARIANCE: The lot is exceptionally narrow and the current setbacks do not allow for a single family structure. Variance Request 421-05, William G. Busko August, 2005 Page 2 STAFF COMMENTS: This 0.5993 acre property was created in 1963 as part of the Lone Oak Subdivision, as noted by the deed and plats included in your agenda. Frederick County adopted zoning inl967. The Frederick County historical zoning map shows this property was zoned A-2 (Agricultural General) in 1967. 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, I00'rear and 50' sides. STAFF CONCLUSIONS FOR THE AUGUST 16, 2005 MEETING: The Code of Virginia, Section 15.2-2309(2), 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. The applicant is seeking a variance of 35' right side -yard variance, 30' left side -yard variance and 75' rear variance. Should this variance be granted, the building setbacks for this property would be: 15' right side; 20' left side; and 25' rear. It appears that this variance meets the intent of the Code of Virginia, Section 15.2-2309 (2). This request from the current setbacks of the RA zoning district may be justified. J m m y0s4 jY9 � 9e vola Y��`rd�O g`96 ti._�i f. X02 �`• 6f'/ ii �roQ/ ~�.� zp/P BLACK 868 2 A 19 ( f 8l 8 Z 89B� O�4Pap6h BLACK �{ 0 \ 86BA18 1,, 86g1iK1N,Aqo g 1p 1, - J 0Sti \hP `\y 060 ' ? \. ��• �`��aP ,\ &0tia OJStip OQ, P96 r 4 Al CO �4400p\a 4 X60 P � PO � � J �o �� f• ., �\� b0 f .� '\,; �6 �NOV P �` 461 %5l ;k 660 G`�J00� 9r j�t• �°'l � a0ry9/ , \\ � `<rr a`o0 a / F `� iQ O`.P , 660 m ,\ 4660 .arPJG,t,9 ,r\ Jy0p00 S, 060 '. -, ..4 0 � '• ` � ,'' 660 � 0 , �i \t '. yp i\,, W O � � Q \ a 0 W Q '^ 0 V J O Ln N = Q I V E N NLL CB — m U')'L Z N co co 00 — 0 1 i 4 LO e CD g 0 � @ , C Q 4t co, / $ cN 7 = m > co 0 tj % } t 7R ^ \\\\\ ;»&&m ##+«0 CD k {Cl ij ]!§fi7E - 004100 tj % APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA OFFICE USE ONLY Variance Application No. �� >a Submittal Deadline _7 1�,5' Submittal Date For the meeting of > % , G Fee Paid: / 00 _ yes Initials / ��- e� Sign Deposit yes Sign Return Date: MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT The applicant is the APPLICANT: Michael Artz Owner ✓ Other (Check one) OCCUPANT: (if different) NAME: Artz & Associates, PLC NAME: ADDRESS: 16 East Piccadilly Street Winchester, VA 22601 TELEPHONE: 667-3233 ADDRESS: TELEPHONE: The property is located at (give exact directions and include state route numbers): Off VA Route 641/Double Church Road on Route 849NVest Street in Lone Oak Subdivision; southeast of Stephens City The property has a road frontage of 79.81 feet and a depth of 270.36 feet and consists of .5993 acres. (Please be exact.) The property is owned by WILLIAM G. BUSKO as evidenced by deed from DONALD N. ROYAL recorded (previous owner) in Instrument No. 050009432 of the Clerk of the Court for Frederick County. (Attach a copy of the deed.) Magisterial District: Opequon Property Identification No.: 8613-2-A-17 The existing zoning of the property is RA The existing use of the property is Vacant Adjoining Property; USE ZONING North Residential East Vacant South Vacant OIAI AI WA West Residential RA Describe the variance sought in terms of distance and type. (For example: "A 3.5' rear yard variance for an attached two car garage.") 15' east side yard, 20' west side yard and 25' rear line variance for single-family dwellina List specific reason(s) why the variance is being sought in terms of: 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 The lot is exceptionally narrow defined by current RA zoning; the current setbacks do not allow for a sinqle-family structure The existing lot predates the current zoning ordinance. Additional comments, if any. The following names and addresses are all of the individuals, firms, 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 notified by mail of this application: NAME Address Prope y iv# NAME Address Property ID# NAME Address Property ID# NAME Address Property ID# NAME Address Property ID# NAME Address Property ID# NAME Address Property ID# NAME Address Property ID# Ronald E., Jr., and Kelly A. Richards (property North) 1285 Double Church Road, Stephens City, VA 22655 86A -455F vv -i + v1 DW&s J. Larkin (property South/across West Street) 134 West Street, Stephens City, VA 22655 86B -2-B-18 Fern C. Cone (properly West) 127 West Street, Stephens City, VA 22655 86B -1-A-15 Katherine S. Black, Trustee (property East) 135 West Street, Stephens City, VA 22655 86B -2-A-18 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. V �1 AGREEMENT VARIANCE (Number assigned by the Planning Department.) 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. (we) authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I (we) 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 (we) hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SEGNATU O "` LP F PPLICANT 4� DATE �� Z' SIGNATURE OF OW DATE DATE -- Z Z b (if other than applicant) - OFFICE USE ONLY - BZA PUBLIC HEARING OF & D,5 ACTION: - ATE - APPROVAL SIGNED BZA CHAIRMAN DENIAL DATE Special Limited Power of Attorney County of Frederick, Virginia Planning Office, County of Frederick, Virginia, 107 North Kent Street, Winchester, Virginia 22601 Phone 540-665-5651 Facsimile 540-665-6395 Know All Men By These Presents: That I (We) (Name) WILLIAM G. BUSKO (Phone) 722-6674 (Address) 187 BRIARWOOD LANE, WINCHESTER, VIRGINIA 22603 the owner(s) of all those tracts or parcels of land ("Property") conveyed to me (us), by deed recorded in the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by Instrument No. 050009432 Parcel Lot 17 Subdivision Lone Oak on Page 0341 and is described as Block A Section 2 do hereby make, constitute and appoint: (Name) Michael Artz, Artz & Associates, PLC (Phone) ` 667-3233 (Address) 16 East Piccadilly Street, Winchester, Virginia 22601 To act as my true and lawful attorney-in-fact for and in my (our) name, place and stead with full power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: ❑ Rezoning (including proffers) ❑ Conditional Use Permits ❑ Master Development Plan (preliminary and final) ❑ Subdivision ❑ Site Plan My attorney-in-fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. I witness thereof, I (we) have heretomy (our) han and seal this �� 4 day of ,�_,2005 - 1 State of Virginia, City/County ofTo-wit: I, CtcL� n P 1beu-rsj) , a Notary Public in and for the jurisdiction aforesaid, certify that the person(s) who signed to the foregoing instrument and who is (are) known to me, personally appeared before me and has acknowledged the same before me in the jurisdiction aforesaid this�2Aay of .-_, 200 S . P � � o �� My Commission Expires: ��,' M900 i 'Notary Public 7563-6845 EBY/cmj r 1 FC N 1 u� co N 0 W � N W N a � o C) O CD �o a o I H o U otgnz —1 -10 co H v� oo A S �8� S - z --A- /( -9- /-7 0bOOQ943 THIS DEED, made and dated this 4" day of May, 2005 by and between DONALD N. ROYAL, hereinafter called the Grantor, and WILLIAM G. BUSKO. hereinafter called the Grantee. WITNESSETH: That for and in consideration of the sum of Ten Dollars ($10.00), cash in hand paid and other valuable consideration, receipt whereof is hereby acknowledged, the Grantor does grant and convey, with General Warranty and with English Covenants of Title, unto the Grantee, in fee simple, together with all rights, rights of way, privileges improvements thereon and appurtenances thereto belonging, all of the following realty: All that those two (2) certain lots or parcels of land, together with the improvements thereon and the appurtenances thereunto belonging, lying and being situate in Opequon District, Frederick County, Virginia, designated as Lots 16 and 17,912ck A, Section Two, Ione Oak, on the plat and survey by Quentin R.-Shortt, C.L.S., dated September 30, 1965 of record in the Office of the Clerk of the Circuit Court of Frederick County, Virginia, in Deed Books 317, at Page 6977. AND BEING a portion of the property conveyed to Donald N. Royal and Mary E. Royal, husband and wife, as tenants by the entirety, with rights of survivorship, as at common law, by Deed from Donald N. Royal and Mary E. Royal, husband and wife, dated December 18,1979 of record in the aforesaid Clerk's Office in Deed Book 517, at Page 142. The said Mary E. Royal, died March 9, 1994 testate and her Will is of record in the aforesaid Clerk's Office in Will Book 106, at Page 1134, et seq. In said Will, Article 4, the said Mary E. Royal devised and bequeath the aforementioned subject property to her husband, Donald N. Royal. References is hereby made to the aforesaid instruments and the references contained therein for a further and more particular description of the property conveyed herein. This conveyance is made subject to all legally enforceable restrictive covenants and easements of record affecting the aforesaid realty. The Grantor does hereby covenant that he has the right to convey to the Grantee; that the Grantee shall have quiet and peaceable possession of the said property, free from all liens and C:) c,>3 Ln encumbrances; and he will grant such further assurances of title as may be requisite. WITNESS the following signature and seal: /I �11%. i .�_(s DONALD N. ROYAL STATE OF VIRGINIA COUNTY OF FREDERICK, To -wit: I, Cathy M. Jewell, a Notary Public in and for the State and jurisdiction aforesaid, do hereby certify that Donald N. Royal, whose name is signed to the foregoing Deed, dated this 4' day of May, 2005 has personally appeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand this 4' of May, 2005. My commission expires 12/31/08. IU uWnm1 a—PRP.W by. Edon 8 You Kuyk. WL Joloomq MCKM & &Slm, P.LC 112So hcamrt-St—1 Notary Public '0 ! A. Wm,ha ,. Vhpou 22601 (548)6621456SCT�3. 4 V1RCiIPiIA: FREDERICi{ COLdA1TY, . i, .... This iustrument of writing was produced to me on J ZOO -S at Pand!Ath rti5oate of arlanowledgament thereto annexe3 was adutitied to record. T i+aposed by Sec 58.1-802 of �O Sa $ iS._.'.�-. and 58.I-801 have been paid, if asse55able Ai\buetolotA 6c17.fee.rpd Advo --j 2Qerk • •: � w 'y+. w MrrnP.. • �. •1.�91Y•� wh w� - > -�1. -IM 'AUMU l )DREKL3UI VlId'DLIA I � g h H .Na a' U •$ a � ro I C�iA1+r 0O I. 4/ o� z y O � O 7 W O .� m R N � v ^Q r 1,, u yp 1 � ro I C�iA1+r 0O I. 4/ o� y � O CAoQ&o L 7 W O .� m R N _ ,14Glli�A �O{a 7w y a w w' 2' Y _ [C U � uooC?.�i8��, lz •n a u t` 403 " .. n�c.� V m In• a u yp I C�iA1+r 0O I. y N Ur 7dOaG-. . uooC?.�i8��, " .. n�c.� V o In• a p G a N a a a A < Nrl t� O . �,1•(, �J, %� c� �j 'l� � H e ..rl G7 O A 4 M w0 F N o �AT m cc o cF eo=n s i NOTES: 1. BOUNDARY SHOWN HEREON WAS DETERMINED BY A FIELD RUN SURVEY PERFORMED BY ARTZ & ASSOCIATES ON JULY 15, 2005. IRON PIPE 2. THIS PLAT IS SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD. FOUND 3. ALL PROPERTIES ARE ZONED RA. USES ARE RESIDENTIAL. TM #86 -A -45F IJ J �o I RVIVALD E., JR (A NL"l A. N I RICHARDS DRAINFIELD #020019946 m \� I I \ IRON PIPE FOUND / I \ PROPOSED \ HOUSE \ �I o cn Zp � m o I � cn TM #86B -2-A-16 WILLIAM G. BUSKO #050009432 a LOT 16 -o I IJ J �o I N I \ o PROPOSED DRAINFIELD m \� I I \ 6D gR1" EX1S1. LOT 17 0.5993 ACRES IRON FOE FOUND cj-�EE� WE5 6p' R/* REBAR FOUND SHEET 2 OF 2 TM #86B -2-B-18 DOUGLAS J. LARKEN 476/660 LOT 18 CURVE I RADIUS I ARC LENGTH CHORD LENGTH I CHORD BEARING I DELTA ANGLE C1 1 352.84' 1 79.79' 79.62' 1 S 7745'54" W( 1 12'57'22" PROPOSED HOUSE LOCATION ON LOT 17 LONE OAK, BLOCK A, SECTION TWO OPEQUON DISTRICT, FREDERICK COUNTY, VIRGINIA SCALE: ? :: 40' DATE: JULY 22, 2005 PRESENT OWNER: WILLIAM G. BUSKO TM #86B -2-A-17 INST. #050009432 PROJECT #21303 I OF MICHAEL M. ARTZ v Ho/ 1951 c R- 9H0 SURV`ck Artz and Aopociateo, PLd A Oubgidiary of Valley Engineering, PLC LAND SURVEYING LAND PLANNING DEVELOPMENT 16 East Piccadilly Street WNCHESTER, VA 22601-4740 TEL 540-667-3233 FAX 540-667-9188 TOLL FREE 1-800-755-7320 / VARIANCE APPLICATION 422-05 WILLIAM G. BUSKO Staff Report for the Board of Zoning Appeals Prepared: August 8, 2005 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: August 16, 2005 - Action Pending LOCATION: Off of Double Church Road (Route 64 1) on West Street (Route 849) in Lone Oak Subdivision MAGISTERIAL DISTRICT: Opequon PROPERTY ID NUMBERN: 8613-2-A-16 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) Land Use: Vacant ADJOINING PROPERTY ZONING &z USE: North: RA (Rural Areas) Use: Vacant South: RA (Rural Areas) Use: Residential East: RA (Rural Areas) Use: Vacant West: RA (Rural Areas) Use: Residential VARIANCE REQUESTED: 30' east side -yard variance, 40' west side -yard variance and 75' rear variance REASON FOR VARIANCE: The lot is exceptionally narrow and the current setbacks do not allow for a single family structure. Variance Request #22-05, William G. Busko August 8, 2005 Page 2 STAFF COMMENTS: This 0.5043 acre property was created in 1963 as part of the Lone Oak Subdivision, as noted by the deed and plats included in your agenda. Frederick County adopted zoning in 1967. The Frederick County historical zoning map shows this property was zoned A-2 (Agricultural General) in 1967. 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, 100'rear and 50' sides. STAFF CONCLUSIONS FOR THE AUGUST 16, 2005 MEETING: The Code of Virginia, Section 15.2-2309(2), 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. The applicant is seeking a variance of 20' right side -yard variance, 40' left side -yard variance and 25' rear variance. Should this variance be granted, the building setbacks for this property would be: 30' right side; 10' left side; and 25' rear. It appears that this variance meets the intent of the Code of Virginia, Section 15.2-2309 (2). This request from the current setbacks of the RA zoning district may be justified. °r Jy6,68 I Se m °�° f/ I oS�dm9yS sJib�asggol ti,r ..,yam 'OpRSEP27 J�.. �2p 107 BLACK We 86B 2 A 198L 8 Z 898 Nown Pa 03 BLACK e 0. 868OJPO� A 18 I pRKIN Lb0 /% 4 , ~ 868 2817A'.`\ 0`O 006,L.� \i✓ �J�6 b \\ z 8uSK0 1l 868 2^6P ; . 660 / �+.� b ,\\.. -'� �abP '4� 060 •' �.. 9vStiP00 60 P b 1, G�0 b0 :'f OIx \ 06 /' p0 ?-., \` f Q bP /. \y` 4 �'06 tis JJ 60 06 GGp P1b >\ '•tiJ'�pp0 \/ 0 `� 0 •1 0�'p\� R6 `\ Yl �,0 bPf W"' �P0Ps0, .'� X 60 : ��9 ?i� i° \a`��b ' 60 \ �� • 6 \P`StO�� \ \ 060-`,0G00'`0 �� !'''a�Pp0M10 ,rl:..� \� � 0�0 bP �- � a •` ''� $b 1P0��0�� • , � 060 G�J000 9 �, OF lip' V /�..� \ ��,`• 060 b �F �'< � ',�` G0�0 4 .. 0 y 660 F.•' Oa00 'f 0`O0 % 0 x \ i O� b\ a0 b, \ /� f � \i. •, �.rl.\O�P\0 i! �\ 060 ` � � x`60 yoEP b y 4. vv B U /yam i 6 �\ LL �� QQ w� t oQ �e U W Q 3� e >1 0 AfF <1 LO CD co 0 1 CN (n CN =3 < Ec -,j cq CZ CIO co > (z 00 jr U T E= E Etji5 FL 55 Of a of co C3 75 z (9 E 40,' Ix 00 a I (-10 0 AfF <1 APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA OFFICE USE ONLY i�� Jubmittai Deadline / /Z i Variance Application; vo.. - � �` U�� Submittal Date For the meeting of .0 - Fee Paid: � �� yes Initials Sign Deposit yes Sign Return Date: MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT The applicant is the Owner ✓ Other (Check one) APPLICANT: Michael Artz NAME: Artz & Associates, PLC ADDRESS: 16 East Piccadiliv Street Winchester. VA 22601 TELEPHONE: 667-3233 OCCUPANT: (if different) NAME: ADDRESS: TELEPHONE: The property is located at (give exact directions and include state route numbers): Off VA Route 641/Double Church Road on Route 849/West Street in Lone Oak Subdivision, southeast of Stephens City The property has a road frontage of 70 feet and a depth of 222.42 feet and consists of .5043 acres. (Please be exact.) The property is owned by WILLIAM G. BUSKO as evidenced by deed from DONALD N. ROYAL recorded (previous owner) in Instrument No. 050009432 of the Clerk of the Court for Frederick County. (Attach a copy of the deed.) Magisterial District: Opequon Property Identification No.: 8613-2-A-16 The existing zoning of the property is RA The existing use of the property is Vacant Adjoining Property: USE ZONING North Residential East Vacant South Vacant MA West Residential RA Describe the variance sought in terms of distance and type. (For example: "A 3.5' rear yard variance for an attached two car garage.") 20' east side vard, 10' west side yard and 25' rear line variance for single-fami dwell List specific reason(s) why the variance is being sought in terms of: 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 The lot is exceptionally narrow defined by current RA zoning; the current setbacks do not allow for a sinqle-family structure. The existing lot predates the current zoning ordinance. Additional comments, if any. The following names and addresses are all of the individuals, firms, 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 notified by mail of this application: NAME Ronald E., Jr., and Kelly A. Richards (property North) Address 1285 Double Church Road, Stephens City, VA 22655 Property ID# 86 -A -45F NAME Douglas J. Larkin (property South/across West Street Address 134 West Street, Stephens City, VA 22655 Property ID# 8613-2-13-18 NAME Fern C. Cone (property West) Address 127 West Street, Stephens City, VA 22655 Property ID# 8613-1-A-15 NAME Katherine S. Black, Trustee (property East) Address 135 West Street, Stephens Ci , VA 22655 Property ID# 8613-2-A-18 NAME Address Property ID# NAME Address Property ID# NAME Address Property ID# NAME Address Property ID# 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. m m i1 � I F t7 a' !L m p z O L U7 I z z O O w W V1 V3 i I z O W (n 1 z O U Y Q O O Y Y Q Q O O O 0 Y Q O 0 i w p N p p �o0nn I AGREEMENT VARIANCE # (Number assigned by the lanning Department.) I (eve), 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 (we) authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I (we) 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. (we) hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. i SIGNATURE -OF A PLICANT L tp , DATE Z SIGNATUREOFOw_NER��L,:� DATE / �s�- (if other than applicant) - OFFICE USE ONLY - BZA PUBLIC NEARING OF / / a_ ACTION: - ATE - APPROVAL SIGNED BZA CHAIRMAN DENIAL DATE Special Limited Power of Attorney County of Frederick, Virginia Planning Office, County of Frederick, Virginia, 107 North Kent Street, Winchester, Virginia 22601 Phone 540-665-5651 Facsimile 540-665-6395 Know All Men By These Presents: That I (We) (Name) WILLIAM G. BUSKO (Phone) 722-6674 (Address) 187 BRIARWOOD LANE, WINCHESTER, VIRGINIA 22603 the owner(s) of all those tracts or parcels of land ("Property") conveyed to me (us), by deed recorded in the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by Instrument No. 050009432 on Page 0341 and is described as Parcel Lot 16 Block A Section 2 Subdivision Lone Oak do hereby make, constitute and appoint: (Name) Michael Artz, Artz & Associates, PLC (Phone) 667-3233 (Address) 16 East Piccadilly Street, Winchester, Virginia 22601 To act as my true and lawful attorney-in-fact for and in my (our) name, place and stead with full power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: ❑ Rezoning (including proffers) ❑ Conditional Use Permits ❑ Master Development Plan (preiiminary and final) ❑ Subdivision ❑ Site Plan My attorney-in-fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows - This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. In witness thereof, I (we) have hereto :TcA 200 5" - / CA Ail (our) hand and seal this,,? "�4 day of _ Z Z — p� State of Virginia, City/County of �eA2ci� , To -wit: a Notary Public in and for the jurisdiction aforesaid, certify that the person(s) who signed to the foregoing instrument and who is (are) known to me, personally appeared before me and has acknowledged the same before me in the jurisdiction afor id this z-7=Yday of S�i,, 2005 . My Commission Expires:r, Notary Public \` 7563-6845 EBY/cmj r N 1 m co N C. W � N N a� o okca • r+ w o I E- CD 4 H to Ln 1 P4 W ,Nwx Ln IU o in r z .-1 ko cc H V3- co -A 3 ,8 iS-2-A- 16-,6/s7 THIS DEED, made and dated this 4th day of May, 2005 by and between DONALD N. ROYAJ- hereinafter called the Grantor, and WILLIAM G. AUSKQ. hereinafter called the Grantee. WITNESSETH: That for and in consideration of the sum of Ten Dollars ($10.00), cash in hand paid and other valuable consideration, receipt whereof is hereby acknowledged, the Grantor does grant and convey, with General Warranty and with English Covenants of Title, unto the Grantee, in fee simple, together with all rights, rights of way, privileges improvements thereon and appurtenances thereto belonging, all of the following realty: All that those two (2) certain lots or parcels of land, together with the improvements thereon and the appurtenances thereunto belonging, lying and being situate in Opequon District, Frederick County, Virginia, designated as Lots 16 and 17_.Block A, Section Two, Ione Oak, on the plat and survey by Quentin R. Shortt, C.L.S., dated September 30, 1965 of record in the Office of the Clerk of the Circuit Court of Frederick County, Virginia, in Deed Books 317, at Page6_ 97. AND BEING a portion of the property conveyed to Donald N. Royal and Mary E. Royal, husband and wife, as tenants by the entirety, with rights of survivorship, as at common law, by Deed from Donald N. Royal and Mary E. Royal, husband and wife, dated December 18, 1979 of record in the aforesaid Clerk's Office in Deed Book 517, at Page 142. The said Mary E. Royal, died March 9, 1994 testate and her Will is of record in the aforesaid Clerk's Office in Will Book 106, at Page 1134, et seq. In said Will, Article 4, the said Mary E. Royal devised and bequeath the aforementioned subject property to her husband, Donald N. Royal. References is hereby made to the aforesaid instruments and the references contained therein for a further and more particular description of the property conveyed herein. This conveyance is made subject to all legally enforceable restrictive covenants and easements of record affecting the aforesaid realty. The Grantor does hereby covenant that he has the right to convey to the Grantee; that the Grantee shall have quiet and peaceable possession of the said property, free from all liens and encumbrances; and he will grant such further assurances of title as may be requisite. WITNESS the following signature and seal: SEIDONALD N. ROYAL STATE OF VIRGINIA COUNTY OF FREDERICK, To -wit: I, Cathy M. Jewell, a Notary Public in and for the State and jurisdiction aforesaid, do hereby certify that Donald N. Royal, whose name is signed to the foregoing Deed, dated this 0 day of May, 2005 has personally appeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand this 4' of May, 2005. My commission expires 12/31/08. 11 b im --a—P-Pawd by: Edri. B. YW rC yk.. b% 1.kw.., WK. A 8.11., P.LG 1125—hC o Somal Notary Pfiblic VA.h ,. Vkg .-22601 Q (54016623486L �' 4 •. VIRGINIA: FREDERICK,—Vu 1', SCT. Ibis instrument of writing was produced to me on Q,, ZOO -�' at 1 a-: l 5 and with nificate of admowledgement tbereto mnexc3 was admitted to record. T i,nposed by Sec 58.1.-802 0. O Sa $, and 58.1.801 have been paid. if assessable Anb..k.1-16G17.f....0 4ewAJ�IlAG 2Qerk � l `� -��"''--��'��7a�:'�fl -P•�: of •cr p wo pwvepnr �4IoaJ4•Ir puo • • , '- w : a lr I � �o,tnp—T e4 1 P m au a enpo,d_- G 'LiS SL1f10� YiY®Oitl! YINPJllIA � 1 � 4 1 W �¢ZQ> q CCC H m Lm NIA x�'la 7 ¢ _ c I � ..1 m " � • y pp,•, � N 1� O a a' rte.•- iy 60 K'OJ w 00 • i v � 81ro � t N ' p�� uy•6�Orva10 cV . L004�.a �OUp .�..1 rlA 7d�G• O P b n IUU1 � �� t~i ca po oc p• to _ .+y.v • OY •1.u~ o .. dz b _.NI U 1.4 IJ \ ,�.C,Sy L•• Y A i 4 0 C O N �0.� �£ - i ro C 8 ` p w \ ; \ \ 3 I LTJ?T AUDI ' y 'a NOTES: SHEET 1 C 1. BOUNDARY SHOWN HEREON WAS DETERMINED BY A FIELD RUN SURVEY PERFORMED BY ARTZ & ASSOCIATES ON JULY 15, 2005. 2. THIS PLAT IS SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD.LINE BEARING DISTANCE 3. ALL PROPERTIES ARE ZONED RA. USES ARE RESIDENTIAL. L1 S 59'55'12" W TAN 11.8 L2 - N 58'28'33" E 17.35' CURVE RADIUS ARC LENGTH I CHORD LENGTH I CHORD BEARINGDELTA ANGLE C1 352.84' 70.00' 69.89' S 65'36'12" W 11'2201" TM #86 -A -45F RONALD E., JR & KELLY A. RICHARDS #020019946 r� N REBAR 12" WHITE \.!� OAK —," goo TM #86-1-A-15 FERN C. CONE 382/80 LOT 15 QUO p�SF, IRON PIPE FOUND- 0 o \ r, "\ PROPOSED P\ DRAINFIELD \ 0 REBAR FOUND PROPOSED HOUSE LOCATION ON LOT 16 LONE OAK, BLOCK A, SECTION TWO OPE$UON DISTRICT, FREDERICK COUNTY, VIRGINIA SCAL :1" = 40' DATE: JULY 22, 2005 PRESENT OWNER: WILLIAM G. BUSKO TM #86B -2-A-16 INST. #050009432 PROJECT #21303 TM #86-2-A-17 WILLIAM G. BUSKO #050009432 LOT 17 LOT 16 0.5043 AC R E 5 IRON PIPE FOUND IRON PIPE FOUND A'e,_T H OF A MICHAEL M. ARTZ ➢ Ho. 195/1 -t [240 5 ��HD SUR`1E�� Artz and Atgpociateo, PLd A 0u1,Ridiary of Valley Engineering, PLC LAND SURVEYING IAND PLANNING DEVELOPMENT 16 East Piccadilly Street 1yINCHESTER, VA. 22601-4740 TEL 540-667-3233 FAX 540-667-9188 TOLL FREE 1-800-755-7320