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BZA 08-15-06 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 15, 2006. PRESENT Theresa Catlett, Chairman, Opequon District; Dudley Rinker, Back Creek District; Dwight Shenk, Gainesboro District; Lennie Mather, Red Bud District; Kevin Scott, Shawnee District; ABSENT: Robert Perry, Vice Chairman, Stonewall District; and Robert W. Wells, Member -At- Large. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Zoning Inspector; Bev Dellinger, BZA Secretary; and Robert T. Mitchell, Jr., Attorney for the BZA. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. On a motion by Mr. Shenk and seconded by Mr. Scott, the minutes for the July 18. 2006 meeting were unanimously approved as presented. 40 Chairman Catlett asked Mr. Cheran the cut -off date for the next meeting. Mr. Cheran replied that Friday, August 18, 2006, is the cut -off date. PUBLIC MEETING — OLD BUSINESS Continuation of Variance Request 410 -06 of Kay -Mor, Inc., and Debra Toms, submitted by Clinton R. Ritter, Esq., for a 30' variance on the eastern side of the property. This property is located on the east side of Sulphur Springs Road (Route 655), 1 /10 mile north of the entrance to the County Landfill, and is identified with Property Identification Number 65 -A -176 in the Shawnee Magisterial District. ACTION — VARIANCE APPROVED Chairman Catlett stated that the Public Hearing has been held on this item and the Board needs to make a decision on the request today. Mr. Cheran gave the staff report. The variance requested is for a 30 foot side variance on the eastern side of the property. The reason for the variance is the lot predates the zoning ordinance with regards to setbacks of the RA zoning district. As a brief overview, Mr. Cheran stated that the lot was created in 1966, prior to Frederick County adopting zoning on March 11, 1967. At the time of the adoption of the zoning ordinance, this one acre property was zoned A2 (Agricultural General) as shown on the Frederick County historical map. The property is currently zoned RA, which Frederick County adopted in 1991. The current setbacks for the property are 60 feet from the front, 50 feet from the right side and 100 feet 4Vthe rear. Minute Book Page 1395 Frederick oun v oar o om Appealsppeas Minutes of August 15, 2006 Two items were brought to the Board's attention by staff. One is the proposed Route 37 right -of -way.Os is a policy issue only. The second issue is the impact on the County Landfill. There is a letter in the agenda from Mr. Ed. Strawsnyder, Public Works Director, spelling out his concerns about the impact to the landfill. Staff will also point out that the Landfill protection area is not indicated in any of our land use policies or plans, or the 2003 Comprehensive Policy Plan. 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 Mr. Cheran further stated that the applicant is seeking a 30 foot eastern side variance on the property to build a residential structure of approximately 2,016 square feel. Should this variance be granted, the property setbacks will be 60 feet front and 70 feet left side and rear. It appears the variance meets the intent of the Code of Virginia, Section 15.2- 2309(2) and the request from current setbacks of the RA zoning district may be j ustified. The Board heard this item on June 20, 2006 and there was a tie vote on the motion made by Mr. Shenk and seconded by Mr. Wells. As the motion did not receive the required affirmative votes, this application is being brought back to the Board for conclusive action. Mr. Rinker asked if the property has a proposed drainfeld site that has not been applied for. Mr. Cheran Ged that Mike Artz told him that the paperwork has been submitted to the Health Department. Mr. Rinker stated that part of being in the flood plain means lie would want that permit in hand. Mr. Cheran said it is a legitimate concern, but the Health Department, under their current regulations, does not look at being in the flood plain as a detriment. Mr. Clinton Ritter, who is representing the applicant, approached the podium. Mr. Scott asked if this is a spec home and Mr. Ritter replied it's going to be a spec house. Mr. Ritter stated they had a new survey done and on the new plat the proposed drainfield site is shown. Mr. Ritter further stated that this piece of property is grandfathered. One of the reasons that the Legislature in Virginia set this Board up and gave the Board members authoritative power is to grant variances to people when it creates hardship when you have changes in ordinances such as going to a 100 foot setback. What the applicant is asking for is a 30 foot variance so that they can put a nice home on this piece of property. The applicant spent several thousands of dollars with Mr. Carl Evans, who is a soil scientist, to find a site that he could approve for a three bedroom pere. Once the variance is granted, they can go to the Health Department, get their permit and they can start construction. Mr. Ritter stated that some concerns addressed in the letter from Mr. Strawsnyder were about possible pollution of a well. Mr. Ritter pointed out that directly across the road from this lot is a house and directly , to the south of it is a house. Mr. Ritter stated he knows of no evidence in Frederick County where the Landfill is polluting any wells in that district. If it was, he's sure EPA and every other organization of the government would be concerned. The decision of the Board should be based upon facts and law. The fact in this case is that this piece of property is grandfathered; the applicant is asking for a 30 foot variance and if they don't get it, it will create a hardship on them. There is no legal basis to turn this request down based on speculation or concern. This is also about people's property rights, which are protected under the Constitution of this State 0 the United States. Mr. Ritter asked the Board to approve this variance today. Minute Book Page 1396 re enc oun y oar o onmg Appeals Minutes of August 15, 2006 Mr. Rinker commented that a hardship would be that the applicant does not have a place to build on thepertyandtheydohaveaspotwheretheycanbuild; it may not what they're requesting, but they do have a spot they can build on. Mr. Ritter stated if you take the 100 feet and apply that, you would have a rectangular shaped home. Mr. Rinker stated that's right, but you still have a rectangular spot that you can build a 36x56 home. Mr. Ritter stated they do not. Mr. Ritter asked Mr. Rinker to review the plat; they need the variance in order to be able to build the 36X56. Mr. Cheran stated that a mobile home or a smaller cottage -type house could probably fit into that setback, if you're talking hardship. The setbacks currently on this property, without the variance, would be 60 feet from Sulphur Springs Road, probably 50 feet from the Putmans and 100 feet from the Landfill. Mr. Cheran stated for the record that there were not setbacks assigned to the original plat. Mr. Rinker stands corrected; he misread the numbers. Mr. Shenk made a motion to approve Variance Application 410 -06. Mr. Scott seconded the motion and the motion passed by majority vote. PUBLIC HEARING Appeal Application 408 -06 of Arogas, Inc., submitted by Mark E. Stivers, Esquire, to appeal the decision of the Zoning Administrator regarding the proffered uses on this property and rejection of a site plan for the uses on this property. The subject property is located at the intersection of Rest Church Road (Route 669) and Route 11 North, and is identified with Property Identification Number 34 -A -4 in the Stonewall Magisterial District. ACTION — APPEAL DENIED Mr. Cheran gave the staff report. This is an appeal of the Zoning Administrator pertaining to the proffered uses and re of a site plan for the uses on this property. The applicant submitted a site development plan to the Zoning Administrator on April 13, 2006. This site plan could not be processed due to a discrepancy between the proposed use and the proffers associated with this property. The property was rezoned in 2004, with assigned proffers, by the Frederick County Board of Supervisors. The proffers included no retail or wholesale of diesel fuel for over - the -road truck carriers. The owner of a property offers proffers for a rezoning and these are restrictions that are beyond the general regulations of the zoning district in which the property is located. Truck stops are a permitted use in the B2 zoning district; however, the proffers approved with this rezoning have removed this use from the property. Enforcement of proffers in Frederick County falls under Section 165 -13(E) and are the responsibility of the Frederick County Zoning Administrator. Mr. Cheran further stated that the applicant contends that the Zoning Administrator's decision in regards to the enforcement and interpretation of the proffers of Rezoning 402 -04 is arbitrary and capricious. Staff was in no position to review the site plan as it was presented. The applicant should have understood the proffers assigned to this property before investing the time and money to develop the property. The only issue before this Board toda is to affirm or overrule the decision of the Zoning Administrator with regards to the assigned Wfers of Rezoning 402 -04. Any change to the assigned proffers must be made by the Board of Supervisors Minute Book Page 1397 re er'c oun y oar15 or onnmg Appeals Minutes of August , 0206 is not within the purview of this Board. In conclusion, staff is asking that the Board affirm the decision of the Zoning Administrator in the administration of the Frederick County zoning ordinance regarding the proffered uses on this property and that the Zoning Administrator was correct in not reviewing the applicant's site plan. M'. Cheran stated for the record that Mark Stivers, representing Arogas, is present. Mr. Mark Stivers approached the podium. Mr. Slivers had prepared a brief memorandum and he presented it to the Board members. Mr. Stivers stated that, essentially, what he is asking the Board to do is to make certain findings of fact, because findings of fact that are found by this Board are presumed correct, if this matter is appealed to the Circuit Court. Additionally, Mr. Stivers is asking the Board to make certain findings of law, and under the Code of Virginia, that's exactly the function and purpose of this Board. Among other things, the power and duties of the Board include this statement that: "The Board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision ". Mr. Stivers stated that on the surface, this may look like a simple denial, but behind it, it's important this Board understand certain things that have transpired. One of the things that's important for the Board to understand is that the proffer that is at issue in this instance was never publicly advertised, never made a matter of public comment or record, never reviewed by the County's Counsel, and was not the subject of the requirements of the Frederick County zoning code. What happened is this: George and Carol Sempeles owned some land in the northern portion of the County, in Clearbrook. They came before the Board on April 2004 on a rezoning application. In that rezoning application, there was a specific proffer. That proffer, Bong other things, for the B2 usage, which was being requested at that time, was to disallow the sale of diesel fuel, wholesale and retail, to trucks. After the public hearing was closed, the Board of Supervisors engaged in a conversation. During the course of that conversation, among other things, it was decided that the proffers should be changed. The proffer that you see before you is the proffer that was determined should be the proffer, if there is to be a proffer at all, that would be at issue here today. Mr. Stivers cited this proffer in his memorandum, on page 2, and is as follows: "Any use involving the retail or wholesale of diesel fuel for over -the -road truck carriers shall not be conducted or performed on this site or commercial or industrial zones ". Mr. Stivers stated that it doesn't say that all sales of any sort are disallowed, rather it says for over -the- road truck carriers. When you look at the zoning code, there is no definition of over -the -road truck carriers. There's a definition of trucks and tractor - trailers, but not of over -the -road truck carriers. That's not the critical factor. There are two things Mr. Stivers is asking the Board to look at. One, if you accept the proffer as being valid, the question is, does this proffer disallow all SIC (Standard Industrial Classification Code) 55 usages? The SIC permits, among other things, gasoline and diesel sales. That fact is admitted by the County. The County acknowledges that SIC 55 is permitted in B2 and specifically that in this instance, but for this proffer, it would be allowed. There was an erroneous assumption made by the County back at the time that the Board voted on this, and it's continued until today. This mistake is what the County has assumed is that commercial vehicles that utilize diesel are taxed at a different rate and in a different fashion; in fact it was even argued that the diesel that they consume is dyed. Therefore, commercial usage could be distinguished from all other usages. One of the underlying assumptions that was made by the County is erroneous. It's 011, rtant because the County was hanging its argument on the word "for "; any use involving retail or lesale fuel "for" over - the -road trucks. Their argument being that if diesel that was utilized for those types Minute Book Page 1398 Pre crick oun y oar o onmg Appeals Minutes of August 15, 2006 vehicles could not be sold there, then all commercial diesel could not be sold. Diesel fuel that's sold for over - the -road usage is not taxed any differently for a car than it is for a tractor - trailer truck. Mr. Stivers continued that the one type of fuel, for the Board's edification, that is taxed differently is off -road usage; and in fact, that's dyed. What we have is the County, on page 3 of its staff report, specifically argues that the type of over - the -road truck carrier that is proffered out here is taxed differently when it plies its goods over the road and that's a false statement. Because it is a false statement. we need to evaluate whether or not the County is suggesting that a simple modifier, that an exception. becomes the rule and it does not. This proffer does not preclude B2 usages. This proffer does not preclude the sale of gasoline and diesel to vehicles of any sort other than over -the -road truck carriers. What that means is that tractor - trailers, if they're not over - the -road truck carriers, are also included in that other classification of vehicles that are permitted. The County has argued that over - the -road truck carriers means tractor - trailers, so let's ignore that argument for the moment and look at all the other types of usages. The classic Mercedes. Benz burns diesel, Volkswagens burn diesel, Ford trucks, GMC trucks and the like that are 250's and 350's that consume diesel. What about buses? School buses consume diesel; school buses are not precluded by this proffer from buying diesel in a B2 or on this particular property. What about campers? Greyhound buses are not precluded. We need to look at the question of whether or not the exception is going to become the rule. Mr. Stivers respectively requests that under no circumstances should that be the case. Therefore, the decision of the Zoning Administrator to reject the site plan in its entirety was a wrong decision. This Board has the authority to reverse that decision. On the simple basis of the fact that the exception is not the rule. Mr. Stivers asked them to make that ruling and determination. Beyond that, Mr. Stivers asks the Board to look at a more fundamental issue and that is whether or not this proffer is even valid. Mr. Stivers' research shows this nroffer is void ab initio, which means it's not enforceable. If it's not enforceable, the determination of the Wing Administrator is constrained far more than it would be if the proffer itself is valid. Mr. Stivers stated that the way the proffer originated was in a discussion that occurred by the Board of Supervisors after the close of the public hearing; there had been no advertisement, there had been no opportunity for public comment and there had been no review by the County Counsel. These things are contained as required conditions for a proffer; in fact it has to be advertised, signed five days in advance by the County Code 165 -13A, etc., which has those specific conditions in it. The proffer was not tendered and adopted in accordance with our own Code; therefore it is not a valid proffer. Does that mean the entire rezoning is invalid — no, it does not. It is important for this Board to make a factual determination that the County Administrator's assumption that diesel fuel for over -the -road truck carriers is taxed differently than other diesel - consuming vehicles is wrong. if you make that decision, it's easy to conclude that the exception cannot govern the rule and, therefore, notwithstanding the proffer itself, for all the other uses that would be permitted, the sale of gasoline to gasoline - consuming vehicles and the sale of diesel to all the other categories of vehicles discussed, are permissible under B2 and permissible as passed by the Board that night, notwithstanding the validity of this proffer. Beyond that, Mr. Stivers asks the Board to make a factual determination that what the Board did on that evening was contrary to our own zoning requirements, our own law, and as a result of that, the proffer itself is void ab initio. Because it is void ab initio, when this County Zoning Administrator ultimately looks at this site plan, he must disregard any language that is suggested in that particular proffer. Mr. Stivers stated that he asked for a stipulation from Mr. Mitchell if they're in agreement on the diesel issue or does he need to offer testimony on that. Mr. Stivers further stated it's the specific allusion in the staff Ort on page 3 to the fact that diesel fuel is somehow taxed differently. Mr. Mitchell asked Mr. Stivers what Minute Book Page 1399 re erne oun y oar o omng Appeals Minutes of August 15, 2006 1 - -' referring to. Mr. Stivers stated it's under staff response to Paragraph 3, the last sentence of the first Oagraph of that response ... "furthermore, the sale of diesel fuel retail or wholesale to be used by over -the- road trucks is taxed only by those carriers that ply the roadways with freight ". Mr. Mitchell asked Mr. Stivers what he is reading from and Mr. Stivers replied he's reading from the staff report. It was then discovered that Mr. Stivers had in his possession the staff report from May 2006, not the current staff' report dated July 21, 2006. Mr. Stivers stated that he did not receive a copy of the July 21" staff report and he asked for a copy of the updated staff report. Mr. Stivers noted that the particular paragraph he was reading from has been deleted from the July 21" staff report. Mr. Stivers still asked for that stipulation because he doesn't believe that it in any way changes the underlying assumptions of the County on this. Mr. Mitchell stated that he doesn't believe it's material to the issue before the Board of Zoning Appeals. Mr. Stivers offered Mr. Pat Manning of Arogas, Inc., for the purpose of having him testify that in his 35 years of experience in selling diesel and gasoline, that diesel for over -the -road vehicles is not taxed any differently. With regard to the balance of the staff report, because he has been taken somewhat aback by this and it has not been shared with him, Mr. Stivers asked for a moment to sit down and to read it and to have the opportunity to address the Board after he has had the opportunity to read it. Mr. Stivers was informed by the BZA secretary that the staff report was mailed to him. Staff apparently has an incorrect address for Mr. Stivers if he did not receive the staff report. Chairman Catlett asked Mr. Mitchell if the question before the Board today is not whether or not the proffer is valid or invalid but whether or not the Zoning Administrator made the proper decision based on the rezoning that was approved by the Board of Supervisors. Mr. Mitchell responded that is exactly right. Mr. itchell further stated that the proffers are part of a rezoning and rezonings, whether they be conditional Sfinings with proffers or whether they be other types of rezonings, are legislative acts of the Board of the upervisors. This Board cannot declare, it does not have the jurisdiction or the authority, to declare a legislative act of the Board of Supervisors invalid. This Board has to accept the legislative action, the legislative act, of the Board of Supervisors as it was enacted. In this case, the proffer says "any use involving the retail or wholesale sale of diesel fuel for over -the -road truck carriers shall not be conducted or performed on this site either in the commercial or industrial zones ". What a proffer does is, it takes away certain rights that are given under a zoning ordinance for use; they voluntarily proffer to eliminate that as a use on the property. That's what this is. While truck stops or diesel sales to over - the -road trucks may be permitted in this zoning district generally, they are not permitted on this property because they were proffered out by the voluntary proffer submitted by the applicant. Mr. Mitchell gave a brief history. The Board may be wondering why they worded it that way. In 2001, this same applicant on another piece of property had a site that he submitted that had multiple fueling stations and a restaurant and he claimed it wasn't a service station, it was a restaurant. That matter was appealed that it wasn't a truck stop or service station, it was a restaurant, and the truck stop aspects of it were accessory to the restaurant use. That went to the Circuit Court, and the Circuit Court upheld their decision. With that history, when this comes around, they didn't want to get into the problem again of saying we're going to proffer out truck stops, because if it has a restaurant with it, we may be right back where we were. This proffer says specifically "for over - the -road truck carriers shall not be conducted or performed on this site ". This Board has to take this legislative enactment, that proffer, as is written and interpret it in its clear and normal usage of the terms. What happened in this case, there was a site plan submitted and the Zoning i6mmistrator said this site plan, on the face of it, violates the proffers. Mr. Mitchell told the Board they n't heard Mr. Stivers say that they don't intend to put a truck stop there or that they don't intend to sell Minute Book Page 1400 re enc orm yst oar o onmg AppealsMinutesofAugu ] 5 6200 Osel to over - the -road trucks. Mr. Slivers is saying we're not bound by the proffer because it's not valid. s Board cannot determine that it's not valid. Only a Court can declare a legislative act of the Board of Supervisors invalid. Mr. Mitchell told the Board that what they're required to do under the statute is determine whether the Zoning Administrator was correct in determining that this would not be permitted under the proffered rezoning. in doing that, the statute says you shall consider the purpose and intent of any applicable ordinances, laws and regulations in making your decision. Mr. Stivers stated that he sees that the staff report is not substantially different than what was sent to him in May. The allusion he made earlier to the plying of goods over -the -road has been deleted. The one provision of this says that the decision of the Zoning Administrator was not arbitrary or capricious in the enforcement of the proffers in the procedure on returning the site plan. It further says that the site plan could not be reviewed by staff due to the site layout. The site plan clearly shows pavement details for heavy truck use and clearly shows fuel islands and parking spaces to accommodate over - the -road trucks. Mr. Stivers asked again does the exception govern the rule. What they have is a site plan to sell two types of fuel. In the future, that fuel may change. We're in a dynamic time and whether or not we're selling hydrogen or some alternative such as propane is a very real possibility. When it comes to planning things, it's not unreasonable to account for that. But on its face, they're here to sell two types of fuel. The one type of fuel, if the proffer is invalid, that cannot be sold is for the one classification of vehicle that fuel cannot be sold to, is an over -the- road truck carrier. Again, what that means and why it wasn't defined more specifically, Mr. Slivers doesn't know. Mr. Stivers stated that with all due respect to Mr. Mitchell with regard to the reasons for the Board making the decision that it did, he's going to come back to what he said earlier. Had the proffer been reviewed by Counsel, which it was not, had the proffer been advertised and subject to public comment, which was not, then that proffer may have turned out differently. What we have here is a simple one exclusion V#n the general rule. The general rule is, we can sell to every type of vehicle that consumes diesel and gasoline save over -the -road truck carriers. The Zoning Administrator has said you could sell to over - the -road truck carriers; you have the configuration that would permit that. Yes, arguably, the configuration is there that would permit that. But the configuration also permits the sale to very large vehicles other than tractor trailers. The County did not preclude the sale to school buses, any type of commercial or private bus, diesel - operated campers, dump trucks, or any other form of vehicle that would consume diesel other than the over - the -road truck carrier, whatever that may be. Was the Zoning Administrator correct in his decision to say that you could possibly sell to over- the -road truck carriers so therefore I'm not going look at this site plan, period. Mr. Stivers would suggest, respectively, not. There is nothing in that proffer that disallows a tractor trailer from pulling into that parking lot and parking. A well written proffer that intended that would have said that, and it doesn't. Simply because this site plan would accommodate a large truck such as a tractor trailer does not make this an invalid site plan, one that's not worthy of review, and the decision of this Zoning Administrator to summarily reject it, was a wrong decision and Mr. Stivers asks the Board to reverse that decision. With regard to Mr. Mitchell's argument that you cannot determine that the proffer in this instance is invalid, what you can do is make factual determinations. You can make a determination that in this particular instance the proffer was not advertised, the proffer was not subject to public comment, it was not subject to Counsel's review, that was signed five days after the close of the public hearing, all contrary to our 165 -13 provisions of our County Code. Mr. Stivers asks the Board to make that factual determination. Mr. Stivers stated that Mr. Dunlap, who is the engineer who prepared the site plan, is here and he's prepared to talk about the site plan should the Board have any questions. Mr. Stivers asked Mr. Dunlap, for 4tf ual determination purposes, whether or not in his experience if he's ever had a similar rejection of a site i when prepared for all conditions of the allowed use. Chairman Catlett told Mr. Stivers that she's not sure Minute Book Page 1401 re eric oun y "earl o onmg Appeals Minutes 0 f August 15, 2006 h0 at's relevant to what's before the Board. Mr. Stivers said very good. Chairman Catlett further stated that at's before this Board is whether or not the Administrator properly interpreted the proffer that was approved by the Board of Supervisors. Mr. Stivers stated that he thinks it's also before this Board to decide whether or not, even if he did properly interpret it, as a consequence of his interpretation, he can summarily reject a site plan that in every other instance meets the B2 requirements, and in no instance in and of itself, violates that proffer. Chairman Catlett stated that she thinks that's before this Board to decide today. Mr. Rinker stated that when this rezoning was brought forth with the proffers, it was duly advertised. During the proffer discussion, this proffer was changed after the public comment, and it was changed because of the public comment and that is perfectly fitting to do. It does not need to be continually advertised. Mr. Stivers stated he wouldn't disagree, with the exception of one facet, and that is if you took at the cases in Virginia, the central question revolves around the intensity of the use. Mr. Stivers further stated that if he advertised a very intense use, but then there's a revision in the proffer which backs off of that and reduces the intensity, case law holds that in that instance you need not follow the public comment requirements, etc. However, if in the other instance, those that may have otherwise been alarmed by the intensity that's being permitted by the revisions that take place after the fact and don't appear, could arguably be harmed. It's for that reason that the case law suggests and holds that if you create a more intense use, in that instance you must indeed follow the public disclosure requirements. Mr. Rinker stated that if that should stand up and it wasn't a proper proffer but the Board acted on it as aOle, this rezoning should go back to zero. Mr. Stivers stated that the case law does not hold that either. Mr. Stivers stated that it's for this reason, and this is a very sensitive matter before this County, because in his experience he's seen a lot of things go on in this County over the years, he's watched a lot of rezoning hearings and matters at different levels of the zoning process and this is an extraordinarily important issue because of the way in which it was done. When you look at the record as it transpired that evening, it's important to recognize that the County failed to follow its own procedures. Mr. Scott asked Mr. Stivers if the Board should uphold the decision of the Zoning Administrator, can he assume that this will probably end up next door. Mr. Stivers replied that what he would ask the Board to do is to follow the mandate of the Board and that is to review the decision for its properness. In this instance, Mr. Stivers suggests that what Mr. Cheran did, not with malice, he made a simple mistake. Actually the simple mistake revolves around what has now been deleted from the staff' report and that is the way in which the fuels are taxed are different so therefore, you can make a distinction in the type of classification of vehicle that can be utilized at a particular site. With that no longer a consideration, it's simply the question of whether or not the exception can become the rule and Mr. Stivers respectfully suggests that is not proper. Mr. Stivers respectfully requests that the Board reverse his decision and if the Board chooses, based on the comments of Mr. Mitchell, not to address this second question of the validity of the proffer, so be it. Mr. Scott said he understands, but Mr. Stivers did not answer his question. Mr. Stivers said he'd have to wait and see what the Board's decision is with respect to the two questions. Mr. Scott stated part of his reason for asking is because there's a lot of complexity here and Mr. Scott ks that some of this is beyond his scope of being fair to either side. Mr. Slivers stated he appreciates that. Minute Book Page 1402 re ene oun y "Oar' o omng Appeals Minutes of Augmst 15, 2006 9 Mr. Stivers said this is within your ability to comprehend and is within your knowledge. It's a simple question. A site plan comes in and in all respects meets the B2 zoning requirement; it is for SIC 55 -41, gasoline and diesel sales. The configuration of the site plan allows large vehicles onto the site and Mr. Stivers agrees it would allow a vehicle as big as a tractor trailer on the site. But it also allows all the other big vehicles that aren't specified and aren't precluded by that proffer to also enter and utilize the site. It's in the context of whether or not that one exception can govern the actions of the Zoning Administrator in its entirety. Mr. Stivers respectfully suggests that it is an improper and an illogical method of evaluating this site plan. This site plan, if evaluated and subject to comment by the Zoning Administrator, can well result in changes, which is what happens; it's an administrative function in almost every instance and it's customary for the Zoning Administrator to say we need to tweak this, we need to do that, and the applicant works along with the engineer to accomplish those concerns. But in this instance, they never even got that opportunity and that's the decision Mr. Stivers is asking the Board to overturn. Mr. Rinker asked if' there's anything on the Master Plan to deter over- the -road trucks from coming in and being serviced. Mr. Stivers stated that the proffer itself is. Mr. Rinker said that's just a piece of paper and some words. What's in place on the Master Plan to keep those vehicles from coming to the property? Mr. Stivers asked Mr. Rinker if he's asking if there's a sign or is there a barrier? Ms. Mather asked if there's a height deterrent, so that you could run a pickup truck into it but not a tractor trailer. Mr. Stivers stated there's another issue that isn't directly on the site plan that would affect this and that is, it's an industrial access road and as part of the public comments that were made during the Semples rezoning also includes thru- trucks prohibited. Mr. Rinker asked what's in place to implement the proffer. Mr. Shenk asked how they would police it. How would they allow a bus to come in but not a tractor trailer? Mr. Stivers supposes that's something that would have to be worked out with the Zoning Administrator. It's the Zoning Administrator's responsibility to do that. However, in the same context, if there were suggestions as to how not to sell fuel to over- the -road truck carriers, they would gladly implement those. One thing they can do is refuse to turn the pump on for that type of vehicle. The sign at the entrance to the industrial access route, among other things, precludes a vehicle - it says, "No Thru Trucks ". Again this is one of these issues of what are we concerned about here. There was an allusion to the fact that across the street, there's a rezoning application pending for a truck stop. Is that what we're worried about? Are we then stepping outside of our discretion and /or the purposes of this Board or the Zoning Administrator, and it seems to Mr. Stivers we are. Mr. Stivers introduced Mr. Pat Manning, the Chief Executive Officer of Arogas. Mr. Manning asked about the public hearing of the Sempeles and he has a copy of it, he can make it available. It shows how this proffer was hatched, how it evolved, what procedures were taken, what weren't taken. Mr. Mitchell reiterated the point that this Board can't get over into the area of adjudicating the validity of a legislative act of the Board of Supervisors in approving the rezoning and the proffer that's on the property. Mr. Mitchell stated that he does not agree with Mr. Stivers' recitation of what happened at the public hearing and how the proffer came about and what the proffer was before it went to the public hearing or the fact that it represented a more expansive use of the property. That's a factual issue that Mr. Mitchell feels is not even before the Board because the issue is not before the Board. Mr. Mitchell stated it's hard to from their presentation as to whether or not they're saying that this site plan is set up to serve diesel fuel to Minute Book Page 1403 Me enc un yo oar o omng ppea s Minutes of August 15, 2006 wI r- the -road truck carriers or whether they're saying we can serve other vehicles. Mr. Mitchell feels one has ake a common sense approach to this. If you look at page C4 in the agenda, there is a convenience market with a fueling canopy right in front of it, obviously for vehicles. There are eight fueling stations there in front of the convenience store. In the rear is a large fueling area that would serve, Mr. Mitchell guesses, with seven fueling stations. Does that look like the occasional bus or truck that's going to use diesel fuel — seven fueling stations? Mr. Mitchell feels that the Zoning Administrator took a common sense approach to what was being presented, and this was clearly a site plan for selling diesel fuel to over - the -road truck carriers. That was the basis of his determination. Chairman Catlett asked if anyone else would like to speak and that they will be held to no more than three minutes per person. Mr. Ken Rice, Chief Operating Officer of H. N. Funkhouser & Co., approached the podium. Mr. Rice stated their property is on the other side of the entrance, about 3 -1/2 acres. Unlike Mr. Manning, who Mr. Rice believes is under contract pending site plan approval, fl. N. Funkhouser purchased their land. They purchased it with the clear understanding that truck stops were prohibited. Mr. Rice stated that he's not going to get into all the legal issues before the Board today, but it was clearly the intent of all parties involved that truck stops were not supposed to be put in this area. VDOT is clear in that direction because of the traffic concerns. They bought their land with that clear understanding of the proffer and now they continue to see these issues come up about legal niceties and language and intent. He thinks everyone knows what the intent is. It was a clear understanding of all parties — VDOT, zoning — that truck stops were prohibited. That's how they bought it. To see this issue come up again and someone trying to wiggle around and get a truck stop in here concerns them. 0 Chairman Catlett asked if anyone else would like to speak and no one responded. The public hearing portion of the meeting was closed. Discussion Mr. Scott asked Mr. Cheran when he first received the site plan, did he respond to them and point out the discrepancies he found per the proffers and what was the response to that? Mr. Cheran replied there's a letter in the agenda which he sent to Mr. Dunlap after reviewing the site plan. That's the only response by staff. Ms. Mather asked Mr. Cheran what his personal opinion is of what the Board of Supervisors was trying to do with this proffer. Mr. Cheran responded that he doesn't have a personal opinion, but his professional opinion is what the proffer states. Mr. Stivers asked to speak again. He said that he knows that Mr. Cheran indicated there had been no additional correspondence, but there was additional correspondence that transpired. It's not part of this hearing so it's for that reason Mr. Stivers thinks Mr. Cheran may have responded that way. Mr. Rinker stated that he believes the proffer speaks for itself and the Master Plan presented speaks for itself, and he believes the Administrator made the proper calls. Mr. Rinker made a motion that the Board uphold the Zoning Administrator's determination. The motion was seconded by Mr. Scott and the vote was Omimous to deny the appeal. Minute Book Page 1404 re ene oun y oar o onmg ppea s Minutes of August 15, 2006 0 PUBLIC HEARING Variance Request #15 -06 of Jay Mergler, submitted by H &H Builders, for a 15 foot front yard variance and a one 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 gave the staff report. This request is for a 15 foot front yard variance and a one foot rear yard variance for the construction of a single family home. The reason for the variance is the lot is exceptionally shallow and is bordered on three sides by unimproved platted right -of -ways. Mr. Cheran further stated this 1.72 acre property was part of the New Middletown Subdivision created in 1890. In 1967 Frederick County adopted zoning. The historical zoning map shows this property was zoned A -2 Agricultural General) and building restriction lines at the adoption of the zoning ordinance were 35 feet front and 15 feet on the sides. In 1987 this property was subject to a lot consolidation of 23 lots with building restriction lines of 35 feet front 15 feet on the sides. Frederick County amended its Code in 1989 to change the rural zoning districts to the current RA (Rural Areas) zoning district, making the building restriction lines for the property 60 feet front for all four sides. Mr. Cheran further stated a variance request by Mr. Mergler on this property was heard and approved by v Board of Zoning Appeals at their meeting of November 15, 2005 (Variance 923 -05). The request was for a foot variance in the front and a 15 foot 6 inch variance in the rear. The owner is now seeking a variance of 15 feet left side and one foot right side. Should this variance be granted, the building setbacks for this property would be 35 feet left side, 43.5 feet right side and would remain 60 feet front and 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 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. Cheran stated that these are "paper" right -of -ways, not platted right -of -ways. When the plats were done in 1890 and as we moved forward, some of these streets were on those plats, so the County has to recognize them as a right -of -way. High Street is a state - maintained road. Mr. Charles Lucas of Urban Engineering, and representative for H &I-I Builders, approached the podium. Mr. Lucas stated that the owner of this property had submitted for a variance last year and that was approved. M . Lucas's client intends to purchase this property and has a home that will not fit within the currentbrovedvariance. He has also placed similar homes on the two corner lots on High Street. Mr. Lucas Minute Book Page 1405 Frederick oun y oar o on ng Appeals Minutes of August 15, 2006 1wlie ves this house type in this community would be a benefit to the community, aesthetically, and it would fit ell with the homes that currently exist on that end of High Street. Ms. Mather asked if she understood correctly that the variance that the owner got does not work with the builder's new house. Mr. Lucas responded that's right. Mr. Cheran stated that to clarify, the Board has already acted on this property. The reason this variance may meet the intent is that this is a separate application with a different house size. Chairman Catlett asked if anyone in favor of the variance would like to speak and no one responded. She then asked if anyone against the variance would like to speak and again, no one responded. The public hearing portion of the meeting was closed. Discussion On a motion by Mr. Scott and seconded by Mr. Shenk, this variance was unanimously approved. OTHER Chairman Catlett asked if there is any other business 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. bv unanimous vote. Respectfully submitted, Bev Dellinger, Secretary 0 Minute Book Page 1406 re enc oun y oar o -onmg ppea s Minutes of August 15, 2006