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BZA 11-15-05 Meeting MinutesMEETING MINUTES OF THE 00 FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester. Virginia, on November 15, 2005. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Dudley Rinker, Back Creek District; Kevin Scott, Shawnee District. ABSENT: . Dwight Shenk, Gainesboro District; Lennie Mather, Red Bud District; and. Robert W. Wells, Member -At- Large. 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 325 p.m. On a motion by Mr. Perry and seconded by Mr. Scott, the minutes for the September 20, 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, November 18, 2005, is the cut -off date and currently, we have two applications pending for December. PUBLIC HEARING Variance Request #23 -05 of Jay Mergler, formerly Rodney Butler, for a 20 foot front yard variance and a 10 foot rear yard variance for the construction of a single family home. This property is located on High Street (Route 635), 0.1 mile on the right, and is identified with Property Identification Number 91A03-164- 15 in the Back Creek Magisterial District. ACTION —VARIANCE APPROVED Mr. Cheran stated that Rodney Butler originally applied for this variance, which was scheduled for the September meeting. The Board tabled the request because the applicant was not present. Mr. Butler withdrew his request, but the property owner, Jay Mergler, who is present, would like to go forward with the variance request. Mr. Cheran further stated that this item has been properly advertised and has met the legal requirements for a hearing. Mr. Kirby gave the staff report. 'The property owner is requesting a variance. This 1.72 acre property was part of the New Middletown Subdivision created in 1890. In 1967 Frederick County adopted zoning. The orical zoning map shows this property was zoned A -2 (Agricultural General) and building restriction lines at Frederick County Board of Zoning Appeals Minutes of November 15, 2005 Minute Book Page 1342 the adoption of the zoning ordinance were 35' front and 15' on the sides. In 1987 this property was subject to a lot consolidation of 23 lots with building restriction lines of 35' front and 15' on the sides. Frederick County mended its Code in 1989 to change the rural zoning districts to the current RA (Rural Areas), making the building restriction lines for the property 60' front for all four 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 20' front yard variance and a 10' rear yard variance. Should this variance be granted, the building setbacks for this property would be 40' in the front, 50' in the rear and would remain 60' on the sides. 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. Mr. Kirby directed the Board members to the screen, showing them photos of the property. Mr. Perry asked if the depth of the lot is 125' and Mr. Kirby stated that is correct. Mr. Perry stated that the current ordinances call for 60' front and 60' rear. If the Board gives a 20' front yard variance, that adds 40' to the 5' and if we give 50' rear, that adds 50' to it. The way Mr. Perry sees it, with the variances that are asked for, there is a window of opportunity to build a house that's 95' deep. Mr. Kirby stated no sir, that what Mr. Mergler is asking for is a 40' front BRL; he's only asking for a 20' allowance on that 60', and 10' in the rear which would 50' BRL. Mr. Perry asked Mr. Kirby the size of the proposed house and Mr. Kirby responded that he does not ow the square footage, but the property owner could answer that. Chairman Catlett asked if there were any more questions of staff at this time and there were none. Mr. Jay Mergler identified himself as the owner /applicant. Mr. Mergler stated that only allows 35' for the lot; there's 600' from left to right. Mr. Perry asked what depth house Mr. Mergler is going to build. Mr. Mergler stated it could only be 35', and he's going to do a30'. Mr. Mergler isn't planning on building at this time; he just wants the variances in case he wants to build. He owns the farmhouse across the street that he's fixing up. Mr. Perry stated that he's opposed to giving more variance than is necessary. Mr. Rinker asked if there's a perk site on the property already. Mr. Mergler stated yes; it's perked for a two bedroom. Mr. Rinker asked about the house that's in the right -of -way and Mr. Mergler stated it'sjust a 10'X15' shed that he's going to knock down. Chairman Catlett asked if that's something that would be handled administratively or if they would need to make a motion, it would be a contingency of the motion. Mr. Cheran stated that currently it would be handled administratively because it's in the front setback. If and when Mr. Mergler would bring this in for a building permit, the shed would not be allowed to be there. Chairman Catlett asked if anyone else in favor of the request would like to speak and no one responded. the asked if anyone is opposed who would like to speak and no one responded. Chairman Catlett closed the Wic portion of the hearing. Frederick County Board of Zoning Appeals b 1343MinutesofNovember15, 2005 Minute Book Page Discussion 0 Chairman Catlett stated it looks apparent that the property cannot be built on as is. Mr. Perry stated that he would be in favor of granting variances that would allow him to build a 30' 6" deep house on that lot, however you want to divide up the front and back. Chairman Catlett asked if that is a motion and Mr. Perry stated he could make it a motion. Mr. Rinker asked if they could make a motion that would give him 30' 6" and then work out whether it's front or back, or do they have to say it's so many feet in the front and so many feet in the back. Mr. Cheran stated the shortest from under today's zoning ordinance is what they consider a front. That pipestem" alley way is incorporated through the boundary line adjustment that he did to get everything to that one acre. We would consider that the front because it's the smallest in measurement. Where the old shed is would be the rear. If you want to put it in your motion, as with any variance, you could assign the setbacks. Mr. Perry asked if the setback is taken from the alley way and Mr. Cheran stated from the center of the alley way back. Mr. Perry stated from there to the shed is 125' depth, so he has to have 60' on both sides as irs presently written, and he wants to build a 30' house. Mr. Rinker stated that he needs a total of25' variance. Mr. Perry said give him 25'6 ". to be divided evenly by the front and rear. Mr. Perry asked Mr. Mergler how he felt about that. He said he could build in the middle of the lot and if ey gave him 35', he'd have 45' on each side. Mr. Perry asked if Mr. Mergler is satisfied to put it in the middle the lot and Mr. Mergler said sure, it's a flat lot. Mr. Perry proposed giving Mr. Mergler 30' 6" of space to build a 30' house. Mr. Mergler said that's pretty tight when you don't even have a drainfield set up yet. Mr. Mergler asked if they were going to give it to him where he can move it around the lot wherever he wants. Mr. Perry stated they're not worried about the sides, as Ion-, as he stays 60' off the sides. Mr. Rinker stated where they're coming from is they don't like to give more variance than what you actually need, so if you want a 30' house. and you need the 25' total variance. that's what we'd like to give you. Mr. Perry made a final motion for a variance of 10' in the front and 15' 6" in the rear, for a total of25' 6 ". keeping the side variances at 60'. Mr. Scott seconded the motion and it passed unanimous])'. PUBLIC HEARING Variance Request #24 -05 of Samuel and Ruth Spicer, for an 1 1 2' front yard variance. This property is located on the northern side of Wardensville Grade (Route 600), near the intersection of Burr Stone Lane and Wardensville Grade. and is identified with Property Identification Number 70 -A -2E in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Frederick County Board of Zoning Appeals Minutes of November 15. 2005 `Minute Book Page 1344 Mr. Cheran gave the staff report. The applicant is seeking an 11.2' front yard variance due to the building restriction lines (BRL) on this 1.43 acre property. The BRL's for this property are front and rear 60' and sides0 - 1,0 '. These BRL's are consistent with the Frederick County Zoning Ordinance and are vested. The applicant proposes to build a single family dwelling with a walk -in basement that will be too close to the staked out drainfield site. This does not meet the criteria of a hardship under the Code of Virginia Section 15.2- 2309(2). The Frederick County Zoning Ordinance allows for different housing types in the RA (Rural Areas) Zoning District which include mobile homes, modular homes and single family dwellings without basements. Any one of these housing types may be used without a variance. 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 subject lot has a fairly narrow width and when applied in conj unction with the two front setbacks, the lot is not able to be improved to the owner's desire. Strict application of the zoning ordinance in this case does not produce an undue hardship because the property contains an area that may be expanded into without a variance. Therefore, the inability to construct a single family dwelling with a walk -in basement does not constitute an undue hardship under the criteria specified in 15.2- 2309(2), Code of Virginia; denial of this variance may bejustified. Mr. Cheran directed the Board to the screen, showing photos of the property. 01 Mr. Perry asked what the Health Department requirement is for the house to be away from the drainfield and Mr. Cheran responded he did not know. Someone who stated he is representing Mr. Spicer said if there's a basement, it's 20' and 10' without a basement. Mr. Andrew Page stated that he is here to represent Mr. Spicer because Mr. Spicer can't stand up for very long. Mr. Page stated that the drawing where it says the proposed dwelling at 26'X55', that 26' is the width of the house but the 55' is really with a 15' garage on it and there wilt be no basement under that section. So that would not interfere with Mr. Spicer being too close to the drainfield. Mr. Page further stated that one reason they're having problems, if you'll notice where the property line runs as it comes around that curve on Burr Stone Lane, all the road is really on Mr. Spicer's property so that's where they had to measure from the road back. They thought it was the center of the road but it's really across the road from where they had to measure, and that's the reason he doesn't have enough room from the road. Chairman Catlett asked if the drainfield has been identified and Mr. Page responded yes. She asked if this is the only spot that it can go in and Mr. Page stated yes because it's at the top of the hill and they said that they could not move it because the drainfield's there, the soil was not the best soil. Chairman Catlett asked if a perc permit had been issued for that site and Mr. Page responded yes. Mr. Perry asked about the road being in the wrong place. Mr. Page stated that the road was put in over 35 to 40 years ago and itjust so happened that the road comes down inside of his 1.243 acre property line. It's a private road but it still has a 30' right -of -way. Mr. Perry asked who the road belongs to and Mr. Page stated it belongs to th people who live back in there; it's not state maintained. Mr. Perry asked if Mr. Spicer's property line is side of the road and Mr. Page stated that is correct. Frederick County Board of Zoning Appeals Minutes of November 15, 2005 Minute Book Page 1345 Mr. Rinker asked if the request for a walk -in basement was for health reasons and Mr. Page responded more or less. The reason Mr. Spicer wants a basement is because he has to have somewhere to put his utilities, hisWasheranddryer, because he can only put a house in there that's 26'X40'. He has a motorized wheelchair and he needs a garage to get in and out of his vehicle when he pulls in. Mr. Perry asked Mr. Cheran if the road is in the wrong place. Mr. Cheran responded that the plat they're seeing is just for house location and according to that, he couldn't answer if the road is in the wrong place. Mr. Perry asked if the Code says 60' from the property line. Does it say anywhere that you don't use the property line, that you use the edge of the road? Mr. Cheran stated that it doesn't; we always go from the center of the road, but there are others using this road as a private right -of -way. Mr. Perry said if the road was moved and Mr. Cheran said yes, you could probably get it in there. Mr. Perry said he thinks if the road is on Mr. Spicer's property, obviously it's in the wrong place, as the survey sheet indicates. Mr. Perry stated the next step would be to get the road moved. Chairman Catlett asked how do you do that; it could affect the setback on the other side. That's beyond the BZA's authority. Mr. Cheran stated this is a 30' private right -of -way and today you can't have a 30' private right - of -way. To actually move the road, you need a bigger right -of -way and you're not going to be able to do that. Mr. Page stated that Mr. Spicer would be satisfied if he could get the 11.2' variance and just leave the road where it's at. Chairman Catlett stated it appears ifthey don't grant the variance, Mr. Spicer would only have the ability to build a home of about 700 -800 sq. ft. Mr. Cheran stated that may be, but he would like to point out that you can oave alternative septic systems; you don't necessarily need a conventional drainfield. There is a cost, but that esn't meet the hardship of what the Code of Virginia states. But these other steps need to be taken before a variance could be granted. Mr. Rinker asked if the Spicers are planning on living there the rest of their lives and Mr. Page stated yes. Chairman Catlett asked if anyone else in favor of the request who would like to speak and no one responded. She asked if anyone opposed to the request would like to speak and no one responded. Chairman Catlett closed the public hearing portion. Discussion Mr. Rinker stated that in the past, there have been times they've granted requests of variances because of health reasons. Mr. Rinker feels that if this house is going to make Mr. Spicer's life easier, and he's going to live there the rest of his life, that helps solves a bigger hardship than 11' into the easement. Mr. Rinker made a motion to approve the variance as requested. Mr. Scott seconded the motion and it passed unanimously. Frederick County Board ofZoning Appeals Minutes of November 15, 2005 Minute Book Page 1346 PUBLIC HEARING Variance Request #25 -05 of Donald Haley, for a 10' front yard and a 10' rear yard variance. This property is located at 1008 Back Mountain Road (Route 614), and is identified with property Identification Number 39 -A -82 in the Back Creek Magisterial District. ACTION — VARIANCE POSTPONED TO DECEMBER MEETING BY STAFF OTHER Vice Chairman Perry asked if there is any other business to come before the Board. Mr. Cheran stated that there are still two court cases they're involved in. They should be concluded soon. Chairman Catlett asked which two court cases and Mr. Cheran responded he's still dealing with the horses up in the R5 and the Beatty appeal. As there were no other items or new business to be discussed, the meeting adjourned at 4:15 p.m. by unanimous vote. Respectfully submitted, C Theresa B. Catlett. Chairman Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Minutes of November 15, 2005 Minute Book Page 1347