Loading...
BZA 08-16-05 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on August 16, 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, Lennie Mather, Red Bud District. ABSENT: Robert W. Wells, Member -At -Large STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; J. D. Kirby, Zoning Inspector; and, Renee' S. Arlotta for Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 325 p.m. Chairman Catlett asked Mr. Cheran the cut -off date for the next meeting. Mr. Cheran replied that Friday, August 19, 2005, is the cut -off date and at this time, there is one item to come before the Board. On a motion by Mr. Rinker and seconded by Mr. Scott, the minutes for the July 19, 2005 meeting were unanimously approved as presented. PUBLIC HEARING Appeal Application #19 -05 of LAX, Ltd., to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance 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 541 -2 -65 in the Shawnee Magisterial District. ACTION — APPEAL DENIED Mr. Cheran gave the staff report. The applicant is appealing the decision of the 'Zoning Administrator in regards to a private driveway entrance onto a major collector road. The Frederick County Zoning Ordinance does not allow 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 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, the 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. 0 - applicant should have contacted county staff prior to applying for this entrance permit; staff would have Frederick County Board of Zoning Appeals Minutes OfAug6A 16, 2005 Minute Book Page 1329 denied the permit. Mr. Cheran continued that the Virginia Department ofTransportation issued a private entrance ermit on December 15, 2004. Mr. Cheran noted that, in the agenda, there is a copy of an email from VDOT eceived by staff on August 8, 2005, stating that any entrance requirement must be in compliance with the Frederick County Zoning Ordinance and supersedes any VDOT requirements. 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 collection road. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of Section 165- 29 of the Frederick County Zoning Ordinance regarding a private driveway entrance onto a major collector road. Mr. Cheran directed Board members to the screen, showing pictures of the driveway entrance in question. The distance to the curvature is less than 150', and as measured by staff, it's 105' exactly. The driveway goes over top of the road efficiency buffer and drain easements. The private entrance permit was issued by VDOT; however, the county ordinance governing access to Senseny Road is more restrictive than VDOT requirements and the County's decision to close the entrance supersedes VDOT's approval. Mr. Cheran stated for the record that Mr. Nate Adams is representing LAX and is in attendance to answer any questions. Also, Mr. Mark Stivers is here as representative for the Windsor Hill Estates HOA. Ms. Mather asked if LAX was ever granted a construction allowance to take down the fence and put in an entrance. Mr. Cheran stated that should be asked of the applicant. Mr. Nate Adams approached the podium and identified himself as representing LAX, LTD. Mr. Adams ated that the driveway in question is located on the south side of Senseny Road between the intersection of Oak idge Lane, which is the entrance into the subdivision, and Crestleigh Drive to the east. This particular house is a fairly large house and there are two different garages, at two different levels. The private driveway goes to the bottom level and is in fact used on an occasional basis, not on a full -time, permanent basis, for purposes of using that particular area as a storage area inside the house. The other garage is on the level above and has access from the Winterbury Court side of the house. Mr. Adams would like to raise the issue as to if the violation is in fact correct. The Zoning Administrator indicated in his letter of June 15, 2005 that, "In accordance with Section 165- 29(10) of the Frederick County Zoning Ordinance, a private driveway on a collector road shall only be allowed if a safe entrance is provided ". Mr. Adams said if you take a look at 165- 29(10), it provides in its entirety that entrances on collector and minor streets, whenever a parcel abutting an arterial highway also abuts a collector or minor road, in order to obtain an entrance on the arterial road, an entrance must be provided on the collector or minor road. This shall only be required if a safe entrance can be provided on the collector or minor road. meeting all the requirements of the Frederick County Code and the Virginia Department of Transportation. This ordinance appears to indicate that when a property abuts two roads, in order to have a driveway on the major road, there must also be a driveway on the minor road. This is purely complied with in the property because there's an entrance both on Senseny Road and on Winterbury Court. So the safety requirement that's set forth in this particular subsection 10, talks about a safe entrance on the minor road whichi s the Winterbury Court road. To the extent that the Zoning Administrator is saying that there s a violation of 165- 29(10), that would apply only to the Winterbury Court side as opposed to the Senseny Road side. Even if it does apply, Mr. Adams would suggest that they have met the VDOT requirements and the Frederick County requirements as they exist. There is a safe entrance. With regard to VDOT, they placed into the appeal the representation and the permit application m VDOT granting the permit to have that driveway entrance. So the issue is what about Frederick County and ordinance and what it provides. Senseny Road is 35 miles per hour in that particular area and again referring Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1330 to the ordinance, they talk about the minimum space in Subsection 2. Subsection 2 specifically designates the 1eas of zoning for which minimum spacing is required. Residential Performance is not one of those areasrSquireddforminimumspacing. If you take a look at 44, if it does fall within that, and Residential Performance does not fall within that, for speed limits of 35 miles per hour it talks about a 75' minimum spacing for driveways and between driveways and intersections and they believe that's been met in this case. The minimum spacing for business or industrial entrances shall be 150'. When they paced it off, they believe that it was greater than the 150', so given the fact that it meets VDOT standards, it meets Frederick County standards and so far as there is no minimum spacing, they believe that constitutes a safe entrance. If you look at the road itself, there is a sight distance of well over 200 yards so you can see people coming around the corner in order to take evasive or safety action which may be required for anybody coming out of this driveway. The same is true on the other side; the line of sight distance extends over 200 to 300 yards. Mr. Adams believes that with all the given reasons, the decision of the Zoning Administrator should be reversed. 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 who would like to speak. Mr. Mark Stivers approached the podium and identified himself as representing Susan and Charles Miller, residents of Winterbury Court; Mr. Slivers is not representing Windsor Hill Estates HOA. However, Mr. Stivers has been presented a letter of opposition by the President of the FIOA. Mr. Stivers proceeded to read the letter which has been placed in the LAX, Ltd Appeal Pile). In addition, Mr. Stivers asked that a petition of opposition be made a part of the record (LAX, Ltd. Appeal File), signed by residents of Oakdale Crossing as well as Windsor Hills, with a total of 25 signatures. Mr. Stivers read the petition. On behalf of Mr. and Mrs. Miller and with regards to the comments made about issues of safety, Mr. Stivers said it's very apparent from the Petition, as well the letter, that the residents do concern themselves with the safety of this particular driveway; it does not present a safe egress /ingress along Senseny Road. With regard to the Oakdale Crossing covenants and the master plan, they believe they do have an interest, in as much as when this master development plan was submitted to the County, it was done with certain constraints and certain things in mind. One of them obviously was not to provide a secondary access at the rear of this particular residence onto Senseny Road. From the residents' perspective, and specifically from Mr. and Mrs. Miller's perspective who live next door, this was a consideration at the time of the purchase. With regard to the representation by Mr. Adams that this garage is actually a secondary garage, Mr. Stivers would note that this is a brand new residence; there is a "For Sale" sign. It may be intended that way but at this point in time, if this Board reverses the decision of the Zoning Administrator, and in that instance there would be no limitation on the use of that particular garage. It could become a primary entrance for ingress /egress purposes for the resident. Mr. Stivers respectfully requests this Board sustain the decision of the Zoning Administrator. Mr. Stivers stated for the record that Mr. and Mrs. Miller are present. Chairman Catlett asked if anyone else is present who is opposed and would like to speak. Mr. Steve Eisenhower approached the podium and identified himself as a resident of Windsor Hill. Mr. Eisenhower is opposed, due to safety issues regarding the driveway. As no one else was present to speak, Chairman Catlett closed the public hearing portion of the meeting. I. Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1331 DISCUSSION Mr. Rinker asked Mr. Cheran to explain the 80' road efficiency buffer in more detail.. Mr. Cheran stated that under the Frederick County Zoning Ordinance, you have to maintain a road efficiency buffer and they cannot be built into or upon. With the driveway being extended into the road efficiency buffer, it's a violation of the master plan and the subdivision ordinance. The buffer is there to maintain a distance between the houses. Also, the driveway cuts across the stormwater management easement. Chairman Catlett asked Mr. Cheran if the comment that Mr. Adams made pertaining to the safe and convenient access not applying to the RP District is correct. Mr. Cheran stated that under the Frederick County Zoning Ordinance, any driveways on any collector roads should match up and try to integrate with other entrances. Mr. Adams is correct that this requirement does apply to those business districts and there's a reason for that. If you could do this, we would look to match up with Foxbury Court. This driveway does not do that at all. Furthermore, it also interferes with the right turn lane into the Oakdale Crossing Subdivision. If the applicant had come to staff, we would not have supported it. It's also not on the master development plan. Mr. Rinker asked if the driveway meets the collector road on the deceleration lane and Mr. Cheran responded yes, it does. Mr. Rinker asked where the driveway crosses over the easement, did they put culverts across there. Mr. Cheran stated he is not aware of that. Mr. Cheran pointed out that the grading plan which he passed out to the Board does not show the driveway, and the easement is clearly shown. Ms. Mather asked who gave LAX permission to take down the fence and Mr. Cheran stated he didn't know. Mr. Perry asked if anything could be constructed on the 80' road buffer and Mr. Cheran responded no. Mr.erry stated if you look at Exhibit D, the back of the house is only 75.7' from Senseny Road and Mr. Cheran said that's correct. Chairman Catlett asked if that's another issue that could come before this Board, and Mr. Cheran stated it could because it's a definite issue. Ms. Mather asked Mr. Cheran if this might set a precedent if it were allowed to go forward. Mr. Cheran responded what this Board decides does not set a precedent; it's a case by case basis. Mr. Perry asked if the lower level garage was on the original building permit and Mr. Cheran responded that he would have to look at the permit issued in 2004. The applicant responded but did not approach the podium, so the response was not heard by the Secretary. Mr. Perry stated so there were no provisions made for driveways on the original building permit and Mr. Cheran responded that's correct. Mr. Rinker made a motion to uphold the decision of the Zoning Administrator. Mr. Perry seconded the motion and it passed unanimously. PUBLIC HEARING 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. 0 Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1332 ACTION — VARIANCE APPROVED 0 Mr. Cheran gave the staff report. A survey completed with the purchase of this home, dated May 20, 2005, shows a distance of 27.6' from the garage to the boundary line. A variance in 1982 allowed only for a 30' variance. The property was subject to Variance 04 -82 which was granted in 1982, allowing the dwelling to encroach 5' into the 35' side setback. The Frederick County Zoning Ordinance requires building setbacks for a corner lot in the RP District to be front 35', right 35', left 10' and rear 25'. The setbacks resulting from Variance 04 -82 are front 35', right 30', left 10' and rear 25'. The survey shows the dwelling at 27.6' on the right side, not 30', as granted by the variance in 1982. Therefore, the previous owner built this dwelling in violation of the right side setback. 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 2.4' side yard variance. Should this variance be granted, the building setbacks for this property would be 27.6'. It appears the 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. Mr. Cheran directed the Board to the screen, showing the garage. OMr. Perry asked why the garage was not constructed at the 30' variance. Mr. Cheran stated he did not know, d for the record, building permits from that time are no longer kept. Mr. Perry made a motion to grant the variance and Mr. Scott seconded the motion. Chairman Catlett asked Mr. Drake to come forward. Mr. Drake stated it's actuallyj ust a corner of the garage and there are no safety issues. Chairman Catlett asked if anyone is present to speak in favor of the variance request and no one responded and there was no one opposed who wanted to speak. The public hearing portion of the meeting was closed. Mr. Perry again made a motion to grant the variance and Mr. Scott seconded the motion. The vote was unanimous for approval. PUBLIC HEARING Variance Request 421 -05 of William G. Busko, submitted by Ariz & Associates, for a 15' east side -yard variance, 20' west side -yard variance and 25' rear variance for a single family dwelling. This property is located off of Double Church Road (Route 64 1) 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. ACTION — VARIANCE APPROVED Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1333 Chairman Catlett stated that she will abstain from the next two variance requests and the meeting was turnedevertoViceChairmanPerry. Mr. Kirby gave the staff report. This 0.5043 acre property was created in 1963 as part of the Lone Oak Subdivision. 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, 15' sides. Frederick County amended its Code in 1989 to change the rural zoning districts to the current RA (Rural Areas) district. The current setbacks for property in the RA zoning district abutting lots with residential use are 60' front, 100' rear and 50' sides. 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' in the right side yard, 30' in the left side yard and 75' in the rear. Should this variance be granted, the building setbacks for the property would be 15' on the right side, 20' on the left side and 25' in the rear. It appears that this variance meets the intent of the Code of Virginia, Section 15.2- 2309(2). The request from the current setbacks of the RA zoning district may be justified. Mr. Kirby directed the Board to the screen, showing the property. Mr. Rinker asked if the setbacks they're requesting with those variances make the setbacks the same as the other houses in the neighborhood. Mr. Cheran stated it would appear that it would. Staff did not take any measurements. Vice Chairman Perry asked if anyone is present to speak in favor of the variance. Mr. Mike Artz of Artz & Associates approached the podium and identified himself. Mr. Artz stated that Lone Oak Subdivision was created prior to any zoning in the County and the setbacks at that time were 35' front and 15' sides. If you were to apply the current RA zoning, there would be no building area on this lot at all. Furthermore, they need to find a drainfield site as well. Mr. Rinker asked if the drainfield has been approved and Mr. Ariz stated it has not yet been reviewed by the Health Department, but the drainfield site has been located by a certified on -site soil evaluator. Vice Chairman Perry asked if anyone else is present to speak in favor of the variance and no one responded. He asked if anyone is present to speak against the variance. Mr. Doug Larkin identified himself as the property owner across the street from Mr. Busko. Mr. Larkin feels this request should be denied on the grounds that it will be a detriment to the other properties in the area. He also does not think there is any undue hardship to the owner of the property; he can still put a very nice home on this 6perty and make a handsome profit. Mr. Larkin stated that he had read about a recent decision from the Virginia preme Court; this was a case settled last year against the Board of Supervisors of Fairfax County and the Board Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1334 of Zoning Appeals. In this case, there was some language about why a variance should be granted and he read some of the language, "No such variance shall be authorized by the Board unless it finds that a strict application ofiteordinancewouldproduceunduehardship ". Again, they don't believe there's an undue hardship to the current owner of this property as he has the right to build a very nice home on that piece of property and have some decent setbacks from the other property adjacent to it. Mr. Larkin further read, "The authorization of the variance will not be substantial detriment to the adjacent property'. He believes it would be a detriment to the rest of the neighborhood, based on the current spacing between the properties that are there now. Mr. Rinker asked Mr. Larkin if lie lived across from the property or next to the property. Mr. Larkin stated that he and his wife own the property across the street and Mr. Ken Black owns the property beside Mr. Busko, but it shows Mr. L.arkin's name on it. Vice Chairman Perry asked Mr. Cheran what would be the maximum size house that could be constructed using the current setbacks. Mr. Cheran responded that he would have to ask a surveyor for that information. Mr. Artz stated that this property is zoned RA. The setback requirements in the RA zoning are 60'. front, 50' sides, 100' rear. No house could be built on this lot without a variance. Period. Vice Chairman Perry asked the average distance of the front setback for houses already constructed. Mr. Ariz stated they're placing the house 166' back. His guess is that this is further back than most of the houses. Vice Chairman Perry asked if anyone else who is opposed would like to speak. Mr. Ken Black identified himself as the owner next to Mr. Busko. Mr. Black is opposed to having two omes in there; it will not enhance their property values. Ms. Charlotte Larkin, a property owner, spoke against the variance. Vice Chairman Perry closed the public hearing portion of the meeting. DISCUSSION Mr. Shenk made a motion to approve this variance. Mr. Scott seconded the motion and it passed by majority vote (Chairman Catlett abstained). Mr. Rinker stated that the approval is with the understanding that the pere is approved by the Health Department. PUBLIC HEARING Variance Request 422 -05 of William G. Busko, submitted by Artz & Associates, for a 30' east side -yard variance, 40' ,vest side -yard variance and 75' 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 86B- 2 -A -16 in the Opequon Magisterial District. Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1335 ACTION — VARIANCE APPROVED 0 Mr. Kirby gave the staff report. This 0.5043 acre property was created in 1963 as part of the Lone Oak Subdivision. 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, 50' sides and 100' rear. 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 20' right side yard, 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. Vice Chairman Perry asked for comments from anyone who is in favor of this variance. Mr. Mike Artz stated they have the same identical situation on this lot that they had on the previous request. rtowever, he would like to make an amendment, as POA for his client. Mr. Artz would like to amend this request for a 15' side yard on the left side and a 25' side yard on the right side. That would place this more in keeping with the building restrictions that were set forth back in 1963. Ms. Mather asked if Mr. Artz has a building plan for this property and Mr. Artz responded it would basically be a 75' wide house by 40' deep. Vice Chairman Perry asked Mr. Artz if he's already conceded 5', they could still build the same house if they moved it over and put it basically in the center of the lot and had a variance on the side roughly the same. Mr. Artz responded that he doesn't have any particular issue with that and he'd be more than willing to accept that as an amendment as well. Mr. Artz asked if that is Mr. Perry's request. Vice Chairman Perry stated he thought it would give a little bit better protection to the Cone lot to the left. Mr. Artz stated that he will accept the amendment to a 20' tell and a 20' right side variance and they'll center the house on the lot Vice Chairman Perry asked if anyone else is present to speak for the variance and no one responded. He asked if anyone is opposed who would like to speak. Ms. Emily Slovego, daughter of Erlene Fern Cone, an adjacent property owner, spoke against the variance. esCone is currently hospitalized and asked her daughter to speak on her behalf. Ms. Slovego stated that her ther moved into the subdivision over 30 years ago and it was appealing to her because the homes were on Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1336 spacious lots and she felt the covenants which the subdivision has would give her a feeling of security. When Ms. one heard the adjoining lot was sold, she was expecting one house, but not two houses, to be built. Needless to ay, she was quite upset about that. Putting two houses next to her mother's property will certainly not be an asset to her or increase the value of her property. Ms. Slovego stated that Ms. Cone opposes the building of a house that close to her lot as well as the building of two houses because it would go against the original plan of the subdivision. Mr. Rinker asked Mr. Artz what type of houses were going to be built on the lots. Mr. Artz responded that he's not sure; his client did not tell him. Mr. Ken Black, an adjacent property owner, spoke against the variance. Mr. Larkin, a property owner, spoke against the variance. Vice Chairman Perry closed the public portion of the meeting. DISCUSSION Mr. Rinker stated this is just like the other one, it is a lot on record. The setbacks have been changed since that time which would make it a non - buildable lot, and the Board grants variances in that case. Mr. Rinker made a motion to approve this variance, as amended with 20' side setbacks, and as long as it has a recorded Pere. Mr. Scott seconded the motion and it passed by majority vote (Chairman Catlett abstained). OTHER Chairman Catlett asked if there are any other issues to come before the Board. As there were no other items or new business to be discussed, the meeting adjourned at 4:55 p.m. by unanimous vote. Frederick County Board of Zoning Appeals Minutes of August 16, 2005 Minute Book Page 1337 4 ""&-; &! ` C Bev Dellinger, Secretar