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BZA 07-19-05 Meeting MinutesMEETING MINUTES OFTHE 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. is 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 Oearch includes the original structure of the store with the second level and the residence on the first level. The Frederick Countv Board of Zoning Appeals 1319MinutesofJuly19, 2005 Minute Book Page second level has approximately 1,000 square feet in area; therefore, the 50 % that is allowed under Section 165- lW1 would limit the storage of the lower level to 500 square feet, which is presently being used. The Frederick olounty 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 of retail 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 dinance 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. Staffs 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 staffs 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 zoningfinance, you can either affirm, deny, affirm in part, deny in part or modify the decision of the Zoning Frederick Countv Board of Zoning Appeals 1320MinutesofJuly19, 2005 Minute Book PacR e Administrator. What they have is a land use case and the use is as determined by the ordinance. Mr. Chasler urther stated that he had spoken to staff previously and indicated that theyare agreeable to the private viewing0'oths 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 the) 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 lfted with the same intensity, the same type of use, as the upstairs. However, if that does not seem appropriate, Mueir 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') 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 19, 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 tinrden is upon him to show that it's a grandfathered use since 1967, he is not able to carry that burden because henonlygobacksevenyearswiththedownstairs. 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 arc 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 Countv 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 4V te. PUBLIC HEARING Appeal Application 417 -05 of,Ieffrey Howell and Peggy Howell, submitted by Phillip S. Griffin, 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 ofhorses in this subdivision is not an allowed use. Staff is requestingto 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. 49 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 staffs 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 thatthc Howells ve had horses on their property on and off for the last ten years. They have lived there for the last 1 1 years and rchased the property in the last three to four years. They have not had a complaint, that they know of, prior to Frederick Countv 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 he nature of the complaint, it is that they have horses on their property in Frederick County. Mr. Griffin said headneverheardthattobeacomplaintgenerallyinthepublic. 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 lerally interprets, construes or modifies the definition of what a private campground is, that could include the rivate 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 modi fy 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 rs. Howell if it is her intention to get any more horses or if any of these horses have little ones, it would be your ntion to keep those, but are you actively trying to acquire additional horses. Mrs. Howell responded she's in Frederick Count) Board of Zoning Appeals Minutes Of July 19, 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 fs getting any others.. that's something she doesn't know would be in the future. Mr. Griffin asked if the Board ould 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 ofawhite 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 e 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. 0 Mr. Wells asked if this has always been R5 and Mr. Cheran replied yes. Frederick County Board of Zoning Appeals Minutes ofJuly l9, 2005 Minute Book Page 1325 Mr. Griffin again approached the podium to disclaim remarks made by Mr. Schavone and Mr. Lockwood. 0 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, fora 35 foot side yard variance. This property is located off of 678 Lake Serene Drive, and is identified with Property Identification Number 31 B -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 as zoned Al (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 chanced 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 ofthe 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 f the Lake Serene Subdivision. Mr. Brown bought the property with being able to do this in mind, not being are that there were 50' side yard setbacks applicable to five acre lots when this one is a little less than an acre. Frederick Countv Board of Zoning Appeals 1326MinutesofJuly19, 2005 Minute Book Page Chairman Catlett asked Mr. Brown if anything has changed since the last time he made this request before he 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 thesame 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. 0 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' /z' 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 wil I be going to the Board of Supervisors in August. It's to be heard by the Planning Commission of July 20 " if it gets heard because the agenda is so large. The Beatty appeal was supposed to go to Court on July 27 " 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 4senting to the Board at a future time. Frederick COUnly Board of Zoning Appeals Minutes of July 19, 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 0nantmous vote. Respectfully submitted, Theresa B. Catlett. dhairman Bev Dellinger, Secretary . r1 LJ n LJ Frederick County Board of Zoning Appeals Minutes of July 19, 2005 Minute Book Page 1328