BZA 02-21-06 Meeting AgendaAGENDA
FREDERICK COUNTY. BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
3:25 p.m.
1) Determination of a Quorum
2) Adoption of Bylaws
February 21, 2006
CALL TO ORDER
3) Minutes of December 20, 2005 and January 17, 2006
PUBLIC HEARING
4) 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.
5) Variance Request #01-06 of Roy Gottschalk, for a 35' variance on both sides of the
property. This property is located in Lake Serene, on Lake Serene Drive, Lot 36, and is
identified with Property Identification Number 3113-1-36 in the Gainesboro Magisterial
District.
6) Other
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FREDERICK COUNTY
BOARD OF ZONING APPEALS
BY-LAWS
CONTENTS
BY-LAWS
CODE OF VIRGINIA SECTION 15.2-2308 to 2314
ARTICLE XXI CHAPTER 165 CODE OF FREDERICK COUNTY
FREDERICK COUNTY VESTED RIGHTS POLICY
FREDERICK COUNTY
BOARD OF ZONING APPEALS
BY-LAWS
(Adopted February 21, 2006)
ARTICLE I -AUTHORIZATION
1-1 The Frederick County Board of Zoning Appeals is established by and in conformance with
Chapter 165 of the Code of Frederick County, and in accord with the provisions of Section
15.2-2308 of the Code of Virginia (1950), as amended.
1-2 The official name of this body shall be the Frederick County Board of Zoning Appeals,
hereinafter referred to as the BZA.
ARTICLE II -PURPOSE
2-1 The primary purpose of the BZA is to hear and decide appeals, variances, and interpretations
of the Chapter 165 of Code of Frederick County, in accord with the provisions of Section
15.2-2308 Code of Virginia (1950), as amended.
ARTICLE III - MEMBERSHIP
3-1 The membership of the BZA shall be open to residents of Frederick County, recommended
by Frederick County Board of Supervisors; and appointed by the Circuit Court for the
locality, as prescribed by Section 15.2-2308 Code of Virginia, (1950) as amended. The
membership shall be no more than seven (7) members; or less than five (5) members. Terms
of office shall be five (5) years.
3-2 Members shall notify the chairman via the Zoning Administrator; twenty-four (24)
hours prior to the meeting, if a member is going to be absent or must abstain. As per 15.3-
2308 Code of Virginia, (1950) as Amended.
ARTICLE IV -OFFICERS
4-1 Officers of the BZA shall consist of a chairman, vice-chairman and secretary. The chairman
and vice-chairman must be voting members of the BZA. The secretary shall be a county
employee.
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4-2 The selection of officers shall be elected by the voting members of the BZA at the first
meeting of the calendar year.
4-2-1 Nomination of officers shall be made from the floor at the first meeting of the
calendar year. Elections of officers shall follow immediately. A candidate
receiving a majority vote of the entire voting membership shall be declared
elected.
4-3 Duties
4-3-1 The Chairman shall:
4-3-1-1 Preside at meetings.
4-3-1-2 Rule on procedural questions.
4-3-1-3 Certify official documents involving the authority of the BZA.
4-3-1-4 Certify minutes as true and correct copies.
4-3-2 The Vice -Chairman shall:
4-3-2-1 Assume the full powers of the chairman in the absence or inability of the
chairman to act.
4-3-3 The Secretary shall:
4-3-3-1 Ensure that attendance is recorded at all meetings.
4-3-3-2 Ensure that the minutes of all BZA meetings are recorded.
4-3-3-3 Notify members of all meetings.
4-3-3-4 Prepare agendas for all meetings.
4-3-3-5 Maintain files of all official BZA records and reports. Official records and
reports may be purged in accordance with applicable state codes.
4-3-3-6 Give notice of all BZA meetings, public hearings.
4-3-3-7 Provide to the Circuit Court reports and recommendations of the BZA.
4-3-3-8 Attend to the correspondence necessary for the execution of the duties and
functions of the BZA.
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4-4 Term of Office
4-4-1 Officers shall be elected for a one-year term or until a successor takes office.
Vacancies shall be filled for an unexpired term by a majority vote of the BZA. In
such cases, the newly elected officer shall serve only until the end of the calendar
year or until a successor takes office.
ARTICLE V- MEETINGS
5-1 Regular meetings shall be held at the time and place set by the BZA at the first meeting of
each calendar year.
5-2 Notice of all meetings shall be sent by the secretary with an agenda at least five (5) days
before the meeting.
5-3 All meetings of the BZA shall be open to the public except for Closed Sessions held in
accordance with the provision specified under Section 2.1-344(A) of the Code of Virginia,
(1950), as amended.
ARTICLE VI - VOTING
6-1 A majority of voting members shall constitute a quorum. No action shall be taken or motion
made unless a quorum is present.
6-2 No action of the BZA shall be valid unless authorized by a majority vote of those present and
voting.
ARTICLE VII - OPERATING RULES
7-1 Order of Business
7-1-1 Call to Order
7-1-2 Consideration of Minutes
7-1-3 Public Hearing
7-1-4 Other
7-1-5 Adjournment
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7-2 Minutes
7-2-1 The BZA shall keep minutes of each meeting. The Chairman and Secretary shall sign
all minutes following approval by the BZA certifying that the minutes are true and
correct. Minutes made available to the public prior to formal approval by the BZA
shall be clearly identified as a draft version of the meeting.
7-3 Procedures
7-3-1 Parliamentary procedure in the BZA meetings shall be governed by Robert's Rules of
Order Simplified and Applied, except where otherwise specified in these procedures.
7-3-2 When a motion has been made and defeated, additional, different motions may be
made concerning the item under consideration.
7-3-3 Business items on the agenda shall be considered using the following procedures:
7-3-3-1 Report by County Staff
7-3-3-2 Presentation by Applicant
7-3-3-3 Citizen Comment
7-3-3-4 Rebuttal by Applicant
7-3-3-5 Discussion by BZA
7-3-3-6 Motion and Action by BZA
7-3-4 Public comment shall be allowed in all cases required by the Code of Virginia,
(1950), as amended.
7-3-5 The BZA members may ask questions of clarification and information after the staff
report, applicant presentation and citizen comment.
7-3-6 Petitions, displays, documents or correspondence presented at a meeting may be
made part of the official record of the meeting by motion of the BZA and are to be
kept on file by the secretary. Such items need not be made part of the published
minutes.
7-3-7 Public Hearings
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7-3-7-1 The BZA shall hold public hearings on all items as required by the Code of
Virginia, (1950), as amended. Such public hearing shall be advertised and
notifications provided as required by the Code of Virginia, (1950), as
amended.
7-3-7-2 The Chairman may establish special rules for any public hearing at the
beginning of said hearing. These rules may include limitation_ s on the time of
staff report, applicant presentation and citizen comment.
7-3-8 Tabling
7-3-8-1 The BZA shall have the authority to table agenda items if any one of the
following situations occurs:
A) The agenda item does not meet the requirements of the Code of
Virginia, (1950), as amended.
B) The agenda item does not meet the requirements of the Code of
Frederick County.
C) Insufficient information has been provided for the agenda item.
D) Issues or concerns that arise during formal discussion of the agenda
item warrant additional information or study.
E) The applicant provides the Frederick County Zoning Administrator
with a written request to table the agenda item.
F) The Frederick County Zoning Administrator is advised of an
emergency situation that prevents attendance by the applicant.
G) The applicant fails to appear at the meeting in which the application
has been advertised to be acted upon.
ARTICLE VIII - AMENDMENTS
8-1 These by-laws may be amended by a majority vote of the entire voting membership
after thirty days prior notice.
8-2 BZA shall conduct an annual review of these by-laws to ensure their accuracy. All
amendments to these by-laws shall be considered by the BZA in December of each
calendar year. The BZA shall adopt their by-laws during the first meeting of each
calendar year.
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IS> Code of Virginia> 15.2-2308 http://Iegl.state.va.us/cgi-binAegp5O4.exe?000+cod+15.2-230F
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§ 15.2-2308. Boards of zoning appeals to be created; membership, organization, etc.
A. Every locality that has enacted or enacts a zoning ordinance pursuant to this chapter or prior enabling
laws, shall establish a board of zoning appeals that shall consist of either five or seven residents of the
locality, appointed by the circuit court for the locality. Boards of zoning appeals for a locality within the
fifteenth or nineteenth judicial circuit may be appointed by the chief judge or his designated judge or
judges in their respective circuit, upon concurrence of such locality. Their terms of office shall be for five
years each except that original appointments shall be made for such terms that the term of one member
shall expire each year. The secretary of the board shall notify the court at least thirty days in advance of the
expiration of any term of office, and shall also notify the court promptly if any vacancy occurs.
Appointments to fill vacancies shall be only for the unexpired portion of the term. Members may be
reappointed to succeed themselves. Members of the board shall hold no other public office in the locality
except that one may be a member of the local planning commission. A member whose term expires shall
continue to serve until his successor is appointed and qualifies. The circuit court for a city having a
population of more than 140,000 but less than 170,000 shall appoint at least one but not more than three
alternates to the board of zoning appeals. At the request of the local governing body, the circuit court for
any other locality may appoint not more than three alternates to the board of zoning appeals. The
qualifications, terms and compensation of alternate members shall be the same as those of regular
members. A regular member when he knows he will be absent from or will have to abstain from any
application at a meeting shall notify the chairman twenty-four hours prior to the meeting of such fact. The
chairman shall select an alternate to serve in the absent or abstaining member's place and the records of the
board shall so note. Such alternate member may vote on any application in which a regular member
abstains.
B. Localities may, by ordinances enacted in each jurisdiction, create a joint board of zoning appeals that
shall consist of two members appointed from among the residents of each participating jurisdiction by the
circuit court for each county or city, plus one member from the area at large to be appointed by the circuit
court or jointly by such courts if more than one, having jurisdiction in the area. The term of office of each
member shall be five years except that of the two members first appointed from each jurisdiction, the term
of one shall be for two years and of the other, four years. Vacancies shall be filled for the unexpired terms.
In other respects, joint boards of zoning appeals shall be governed by all other provisions of this article.
C. With the exception of its secretary and the alternates, the board shall elect from its own membership its
officers who shall serve annual terms as such and may succeed themselves. The board may elect as its
secretary either one of its members or a qualified individual who is not a member of the board, excluding
the alternate members. A secretary who is not a member of the board shall not be entitled to vote on
matters before the board. For the conduct of any hearing and the taking of any action, a quorum shall be not
less than a majority of all the members of the board. The board may make, alter and rescind rules and
forms for its procedures, consistent with ordinances of the locality and general laws of the Commonwealth.
The board shall keep a full public record of its proceedings and shall submit a report of its activities to the
governing body or bodies at least once each year.
D. Within the limits of funds appropriated by the governing body, the board may employ or contract for
secretaries, clerks, legal counsel, consultants, and other technical and clerical services. Members of the
board may receive such compensation as may be authorized by the respective governing bodies. Any board
member or alternate may be removed for malfeasance, misfeasance or nonfeasance in office, or for other
just cause, by the court that appointed him, after a hearing held after at least fifteen days' notice.
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E. Notwithstanding any contrary provisions of this section, in any city with a population greater than
390,000, members of the board shall be appointed by the governing body. The governing body of such city
shall also appoint at least one but not more than three alternates to the board.
(Code 1950. §§ 15-825, 15-850, 15-968.8; 1950, pp. 176, 489; 1952, c. 688; 1962, c. 407, § 15.1-494;
1975, c. 641;1976, c. 642; 1977, c. 172; 1982, c. 3; 1989, c. 27; 1992, c. 47; 1997, cc. 570, 587; 1998, cc.
346, 520, 528; 1999, c. 838; 2002, cc. 205, 545.)
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§ 15.2-2309. Powers and duties of boards of zoning appeals.
Boards of zoning appeals shall have the following powers and duties:
1. To hear and decide appeals from any order, requirement, decision or determination made by an administrative
officer in the administration or enforcement of this article or of any ordinance adopted pursuant thereto. The decision
on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The board
shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision.
2. To authorize upon appeal or original application in specific cases such variance as defined in § 15.2-2201 from the
terms of the ordinance as will not be contrary to the public interest, when, owing to special conditions a literal
enforcement of the provisions will result in unnecessary hardship; provided that the spirit of the ordinance shall be
observed and substantial justice done, as follows:
When a property owner can show that his property was acquired in good faith and where by reason of the
exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of
the ordinance, or where by reason of exceptional topographic conditions or other extraordinary situation or condition
of the piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the
strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the utilization of the
property or where the board is satisfied, upon the evidence heard by it, that the granting of the variance will alleviate
a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience
sought by the applicant, provided that all variances shall be in harmony with the intended spirit and purpose of the
ordinance.
No such variance shall be authorized by the board unless it finds:
a. That the strict application of the ordinance would produce undue hardship;
b. That the hardship is not shared generally by other properties in the same zoning district and the same vicinity; and
c. That the authorization of the 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.
No variance shall be authorized except after notice and hearing as required by § 15.2-2204. However, when giving
any required notice to the owners, their agents or the occupants of abutting property and property immediately across
the street or road from the property affected, the board may give such notice by first-class mail rather than by
registered or certified mail.
No variance shall be authorized unless the board finds that the condition or situation of the property concerned is not
of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be
adopted as an amendment to the ordinance.
In authorizing a variance the board may impose such conditions regarding the location, character and other features
of the proposed structure or use as it may deem necessary in the public interest, and may require a guarantee or
bond to ensure that the conditions imposed are being and will continue to be complied with.
3. To hear and decide appeals from the decision of the zoning administrator after notice and hearing as provided by §
15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting
property and property immediately across the street or road from the property affected, the board may give such
notice by first-class mail rather than by registered or certified mail.
4. To hear and decide applications for interpretation of the district map where there is any uncertainty as to the
location of a district boundary. After notice to the owners of the property affected by the question, and after public
hearing with notice as required by § 15.2-2204, the board may interpret the map in such way as to carry out the intent
and purpose of the ordinance for the particular section or district in question. However, when giving any required
notice to the owners, their agents or the occupants of abutting property and property immediately across the street or
road from the property affected, the board may give such notice by first-class mail rather than by registered or
certified mail. The board shall not have the power to change substantially the locations of district boundaries as
established by ordinance.
5. No provision of this section shall be construed as granting any board the power to rezone property or to base
board decisions on the merits of the purpose and intent of local ordinances duly adopted by the governing body.
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6. To hear and decide applications for special exceptions as may be authorized in the ordinance. The board may
impose such conditions relating to the use for which a permit is granted as it may deem necessary in the public
interest, including limiting the duration of a permit, and may require a guarantee or bond to ensure that the conditions
imposed are being and will continue to be complied with.
No special exception may be granted except after notice and hearing as provided by § 15.2-2204. However, when
giving any required notice to the owners, their agents or the occupants of abutting property and property immediately
across the street or road from the property affected, the board may give such notice by first-class mail rather than by
registered or certified mail.
7. To revoke a special exception previously granted by the board of zoning appeals if the board determines that
there has not been compliance with the terms or conditions of the permit. No special exception may be revoked
except after notice and hearing as provided by § 15.2-2204. However, when giving any required notice to the owners,
their agents or the occupants of abutting property and property immediately across the street or road from the
property affected, the board may give such notice by first-class mail rather than by registered or certified mail. If a
governing body reserves unto itself the right to issue special exceptions pursuant to § 15.2-2286, and, if the
governing body determines that there has not been compliance with the terms and conditions of the permit, then it
may also revoke special exceptions in the manner provided by this subdivision.
8. The board by resolution may fix a schedule of regular meetings, and may also fix the day or days to which any
meeting shall be continued if the chairman, or vice-chairman if the chairman is unable to act, finds and declares that
weather or other conditions are such that it is hazardous for members to attend the meeting. Such finding shall be
communicated to the members and the press as promptly as possible. All hearings and other matters previously
advertised for such meeting in accordance with § 15.2-2312 shall be conducted at the continued meeting and no
further advertisement is required.
(Code 1950, §§ 15-831, 15-850, 15-968.9; 1950, p. 176; 1962, c. 407, § 15.1-495; 1964, c. 535; 1972, c. 695; 1975,
cc. 521, 641; 1987, c. 8; 1991, c. 513; 1996, c. 555; 1997, c. 587; 2000, c. 1050; 2002, c. 546; 2003, c. 403.)
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§ 15.2-2312. Procedure on appeal.
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The board shall fix a reasonable time for the hearing of an application or appeal, give public notice thereof
as well as due notice to the parties in interest and make its decision within ninety days of the filing of the
application or appeal. In exercising its powers the board may reverse or affirm, wholly or partly, or may
modify, an order, requirement, decision or determination appealed from. The concurring vote of a majority
of the membership of the board shall be necessary to reverse any order, requirement, decision or
determination of an administrative officer or to decide in favor of the applicant on any matter upon which it
is required to pass under the ordinance or to effect any variance from the ordinance. The board shall keep
minutes of its proceedings and other official actions which shall be filed in the office of the board and shall
be public records. The chairman of the board, or in his absence the acting chairman, may administer oaths
and compel the attendance of witnesses.
(1975, c. 521, § 15.1-496.2; 1983, c. 444; 1986, c. 483; 1997, c. 587.)
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§ 15.2-2313. Proceedings to prevent construction of building in violation of zoning ordinance.
Where a building permit has been issued and the construction of the building for which the permit was issued is
subsequently sought to be prevented, restrained, corrected or abated as a violation of the zoning ordinance, by suit
filed within fifteen days after the start of construction by a person who had no actual notice of the issuance of the
permit, the court may hear and determine the issues raised in the litigation even though no appeal was taken from
the decision of the administrative officer to the board of zoning appeals.
(1975, c. 521, § 15.1-496.3; 1997, c. 587.)
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S > Code of Virginia> 15.2-2314
§ 15.2-2314. Certiorari to review decision of board.
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Any person or persons jointly or severally aggrieved by any decision of the board of zoning appeals, or any
f6ce, udeP , �,„o,,+ and bureau of the locality, may, file with fhe clerk of the
aggrieved taxpayer or Qi�y ou1���, u�YC" L1.1 1– bo— r
circuit court for the county or city a petition specifying the grounds on which aggrieved within 30 days
after the final decision of the board.
Upon the presentation of such petition, the court shall allow a writ of certiorari to review the decision of
the board of zoning appeals and shall prescribe therein the time within which a return thereto must be made
and served upon the realtor's attorney, which shall not be less than 10 days and may be extended by the
court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court
may, on application, on notice to the board and on due cause shown, grant a restraining order.
The board of zoning appeals shall not be required to return the original papers acted upon by it but it shall
be sufficient to return certified or sworn copies thereof or of the portions thereof as may be called for by the
writ. The return shall concisely set forth such other facts as may be pertinent and material to show the
grounds of the decision appealed from and shall be verified.
If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the
matter, it may take evidence or appoint a commissioner to take evidence as it may direct and report the
evidence to the court with his findings of fact and conclusions of law, which shall constitute a part of the
proceedings upon which the determination of the court shall be made. The court may reverse or affirm,
wholly or partly, or may modify the decision brought up for review.
In the case of an appeal from the board of zoning appeals to the circuit court of an order, requirement,
decision or determination of a zoning administrator or other administrative officer in the administration or
enforcement of any ordinance or provision of state law, or any modification of zoning requirements
pursuant to § 15.2-2286, the decision of the board of zoning appeals shall be presumed to be correct. The
appealing party may rebut that presumption by proving by a preponderance of the evidence, including the
record before the board of zoning appeals, that the board of zoning appeals erred in its decision. Any party
may introduce evidence in the proceedings in the court.
In the case of an appeal by a person of any decision of the board of zoning appeals that denied or granted
an application for a variance, or application for a special exception, the decision of the board of zoning
appeals shall be presumed to be correct. The petitioner may rebut that presumption by showing to the
satisfaction of the court that the board of zoning appeals applied erroneous principles of law, or where the
discretion of the board of zoning appeals is involved, the decision of the board of zoning appeals was
plainly wrong and in violation of the purpose and intent of the zoning ordinance.
Costs shall not be allowed against the board, unless it shall appear to the court that it acted in bad faith or
with malice in making the decision appealed from. In the event the decision of the board is affirmed and
the court finds that the appeal was frivolous, the court may order the person or persons who requested the
issuance of the writ of certiorari to pay the costs incurred in making the return of the record pursuant to the
writ of certiorari. If the petition is withdrawn subsequent to the filing of the return, the board may request
that the court hear the matter on the question of whether the appeal was frivolous.
(Code 1950, §§ 15-834 through 15-839, 15-850, 15-958.11; 1950, p. 176; 1962, c. 407, § 15.1-497; 1975,
c. 641; 1988, c. 856; 1994, c. 705; 1996, c. 450; 1997, c. 587; 2001, c. 422; 2003, c. 568; 2005, cc. 625,
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§ 165-154 FREDERICK COUNTY CODE § 165-155
ARTICLE XXI
Board of Zoning Appeals
§ 165-154. Appointment; organization; terms.
A Board of Zoning Appeals shall be appointed by the Circuit Court according
to the requirements and provisions of the Code of Virginia. The Board of Zoning
Appeals shall organize and conduct itself according to all requirements of the
Code of Virginia. The Board of Zoning Appeals shall consist of five members
appointed for five-year terms.
§ 165-155. Powers and duties.
A. Administrative appeals. The Board of Zoning Appeals shall hear and
decide appeals from any order, requirement, decision or determination
made by the Zoning Administrator, Director of Planning and
Development or other administrative officer with authority to
administer or enforce the requirements of this chapter.
(1) Procedures. An appeal to the Board of Zoning Appeals may be
taken by any person, department, board, County or municipality
aggrieved or affected by any decision of the Zoning
Administrator. Such appeal shall be taken within 30 days after the
decision by filing with the Zoning Administrator and Board of
Zoning Appeals a notice of appeal specifying the grounds thereof.
The Zoning Administrator shall transmit to the Board all the
papers constituting the record upon which the action appealed
was taken. An appeal shall stay all proceedings in furtherance of
the action appealed unless the Zoning Administrator certifies to
the Board that, by reason of facts stated in the certificate, a stay
would, in his opinion, cause imminent peril to life or property, in
which case proceedings shall not be stayed otherwise than by a
restraining order granted by the Board or. by a court of record, on
application and on notice to the Zoning Administrator and for
good cause shown.
(2) The Board shall fix a reasonable time for the hearing of an
application or appeal and shall give public notice thereof as well
as due notice to the parties in interest. It shall decide the appeal
within 60 days. The Board may reverse or affirm wholly or partly
or may modify an order, requirement, decision or determination
appealed according to the procedures described in the Code of
Virginia.
16684 9-20-2002
§ 165-155 ZONING § 165-155
B. Map interpretations. The Board of Zoning Appeals shall hear and
decide applications for the interpretation of the Zoning District Map
after notice to the owners of the property affected and after a public
hearing held according to the requirements of the Code of Virginia.
The Board shall interpret the map in such a way as to carry out the
intent and purpose of this chapter for the particular district in question.
The Board shall not have the power to change substantially the
locations of district boundaries as established by this chapter. The
Board shall not have power to rezone property.
C. Variances. The Board of Zoning Appeals shall hear and decide
applications for variances from specific terms or requirements of this
chapter in specific cases. Variances shall only be granted by the Board
in the following cases:
(1) When granting the variance will not be contrary to the public
interest.
(2) When owing to special conditions, a literal enforcement of the
provisions of this chapter will result in unnecessary hardship.
Variances shall only be granted when the property owner can
show that his property was acquired in good faith and where the
owner can show that the hardship was not self-inflicted.
Variances shall be granted where, by reason of the exceptional
conditions on the property at the time of the effective date of this
chapter, the strict application of the requirements of this chapter
(Cont'd on page 16685)
16684.1 9-20-2002
§ 165-155 ZONING § 165-155
would effectively prohibit or unreasonably restrict the use of the
property. Variances shall be granted to alleviate a clearly
demonstrabie hardship approaching confiscation. Variances shall
not be granted to provide a special privilege or convenience
sought by the applicant. A variance shall not be granted when the
condition being alleviated is of a recurring nature so that the
condition could better be alleviated by a zoning amendment.
(3) When the granting of the variance will maintain the intent of this
chapter.
(4) Variances shall be granted to alleviate the following types of
conditions:
(a) Narrowness, shallowness, size or shape of a specific piece of
property.
(b) Exceptional topographic conditions.
(c) Extraordinary conditions concerning the use of adjacent
properties.
(d) Other extraordinary conditions of the specific parcel of land.
(5) Variances shall only be authorized if the Board finds the following:
(a) That the strict application of this chapter would produce
undue hardship as described above.
(b) That such hardship is not shared generally by other properties
in the same zoning district and the same vicinity.
(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 granting the
variance.
(6) No variance shall be granted for any proposed use, development
or activity in the Floodway District that will cause any increase in
flood levels during the one -hundred -year flood.
(7) When considering a variance application located within the
floodplain districts, additional factors contained in Article XV,
§ 165-121, must be followed. [Added 8-12-19921
D. Procedures. Applications for variances shall be made to the Zoning
Administrator in accordance with rules adopted by the Zoning
16685 10-25-2001
§ 165-155 FREDERICK COUNTY CODE § 165-155
Administrator. Plans, maps and other application materials shall be
provided by the applicant as required. Variances; shall be promptly
transmitted to the Board of Zoning Appeals for public hearing. No
variance shall be granted until after notice and a public hearing is held
according to the requirements of the Code of Virginia. Applications for
variances shall be accompanied by a nonrefundable fee in an amount
as set by resolution of the Board of Supervisors from time to time.
[Amended 12-9-19921
Appeals and Variances
Complete Petition
Filed with
Planning Department
Notification of
BZA Public Hearing
I BZA Meeting I
Favorable Unfavorable
Decision I I Decision
Variance or Variance or
Appeal Denied Appeal Denied
E. Conditions. In granting a variance, the Board of Zoning Appeals may
impose such conditions regarding the location, character and other
features of the proposed structure or use as it may deem necessary in
the public interest and may require a guaranty or bond to ensure that
the conditions imposed are being and will continue to be complied
with.
F. Decisions of the Board of Zoning Appeals may be appealed to the
Circuit Court according to procedures set forth in the Code of Virginia.
16686 10-25-2001
VESTED RIGHTS POLICY STATEMENT
RESOLUTION
At a regular meeting of the Frederick County Board of Supervisors, held on the 10th day of
April, 1996, in the Board Room of the Frederick County Court House on Loudoun Street in
Winchester, Virginia, it was duly moved and seconded that the following resolution be adopted:
WHEREAS, residential, commercial and industrial development within Frederick County,
Virginia, is continuing at a significant rate; and,
WHEREAS, the Frederick County Board of Supervisors continues to develop policies to
address the management of growth in the community; and,
WHEREAS, the Frederick County Board of Supervisors believes that the establishment of a
Vested Rights Policy Statement will provide a valuable planning tool for County Officials and
property developers within Frederick County; and,
WHEREAS, the Frederick County Board of Supervisors believes that the establishment of a
Vested Rights Policy Statement will initiate a technique for consistent decision making
regarding development and design issues.
THEREFORE, BE IT RESOLVED, that the Frederick County Board of Supervisors endorses
the adoption of a Vested Rights Policy Statement for Frederick County, Virginia.
This resolution shall be adopted by the following recorded vote:
James L. Longerbeam, Chairman Aye Charles W. Omdoff, Sr. Aye
W. Harrington, Smith, Jr. Aye Margaret B. Douglas Aye
Robert M. Sager Aye Richard C. Shickle Aye
A COPY ATTEST
John k kiley, Jr., Courdy Administrator
RESOLUTION NO.: 032-96
VESTED RIGHTS POLICY STATEMENT
FOR FREDERICK COUNTY, VA
The information set forth in this document is intended to define the requirements of the Code of
Frederick County that maintain a vested right when provided on a legally approved development plan,
or a legally approved and recorded plat. It is envisioned that these requirements be vested perpetually
unless future legislative actions at the State or Federal levels mandate otherwise.
1) Master Development Plans:
a) Overall land use plans shall be vested when depicted on an approved master development
plan.
b) Proposed residential densities, the type of residential dwelling, the number of residential
dwellings within various development phases, and commercial or industrial floor to area ratios
(FAR) shall be vested if the appropriate terminology and numeric information is clearly
depicted on an approved master development plan.
c) Proposed widths for required buffers shall be vested if the appropriate terminology and
numeric information is clearly depicted on an approved master development plan. However,
requirements for screening shall be required as mandated by the current ordinance.
d) Percentages or acreage of required common open space and recreational areas shall be vested
if the appropriate terminology and numeric information is clearly depicted on an approved
master development plan.
e) The number of recreational areas designated on an approved master development plan shall
be vested. However, required recreational amenities and installation specifications shall be
mandated by current ordinance requirements.
2) Subdivision Design Plans:
a) The use of each parcel and the number of lots in each use shall be vested when depicted on
an approved subdivision plan.
b) The location and acreage of each parcel of land dedicated for common open space or for
public use shall be vested if the appropriate terminology and numeric information is clearly
depicted on the approved subdivision design plan.
C) The location and width of all road right-of-ways provided on an approved subdivision plan
shall be vested provided that the road classification and numeric information is clearly
depicted.
3) Subdivision Plats:
a) The location of setback lines shall be vested if the appropriate terminology and numeric
information is clearly depicted on a subdivision plat that is legally approved and recorded.
b) The location and design of proposed buffers and screening shall be vested if the appropriate
terminology and numeric information is clearly depicted on a subdivision plat that is legally
approved and recorded.
c) The location and acreage of each parcel of land dedicated for common open space or for
public use shall be vested if it is consistent with the approved subdivision plan, and if the
appropriate terminology and numeric information is clearly depicted on a subdivision plat that
is legally approved and recorded.
d) The location and width of all road right -of ways shall be vested if the information is consistent
with the approved subdivision plan, and if the appropriate road classification and numeric
information is clearly depicted on a subdivision plat that is legally approved and recorded.
e) The allowable density which results from future subdivisions of a parent tract shall be vested
if the appropriate terminology and numeric information is clearly depicted on a subdivision
plat that is legally approved and recorded.
4) Site Development Plans:
a) All requirements provided on an approved site development plan shall be valid for five years
from the official approval date of the plan. The requirements provided on an approved site
development plan shall only be vested if building permits have been issued prior to the date
of site plan expiration.
b) Site plans shall be allowed to be approved for phased development. In the event that
outstanding phases are not developed when the expiration date of a site development plan is
realized, all requirements associated with the individual phases shall only be vested if building
permits have been issued for the individual phases by Frederick County.
C) Site development plans that have been submitted for review but have not received official
approval from Frederick County shall not be vested from new design requirements or from
new performance standards.
MEETING MINUTES
OF THE
FREDERICK. COUNTY BOARD OF ZONING APPEALS
Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester,
Virginia, on, December 20, 2005.
PRESENT: Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall
District; Dudley Rinker, Back Creek District; Lennie Mather, Red Bud District; Kevin Scott, Shawnee
District; and, Dwight Shenk, Gainesboro District.
ABSENT: Robert W. Wells, Member -At -Large.
STAFF
PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; J. D. Kirby, Zoning Inspector;
Kevin Henry, Planning Technician; 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. Rinker and seconded by Mr. Scott, the minutes for the November 15, 2005
meeting were unanimously approved as presented.
Chairman Catlett asked Mr. Cheran the cut-off date for the next meeting. Mr. Cheran replied that
1 fiday, December 22, 2005, is the cut-off date.
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
Mr. Henry gave the staff report. Frederick County adopted zoning in 1967. The Frederick County historical
zoning map shows this property was zoned A-2 (Agricultural General) in 1967. The property setback lines at the
adoption of the zoning ordinance were 35' for the front and rear and 15' for the side yards. Frederick County
amended its Ordinance in 1989 to change the rural zoning districts to the current RA (Rural Areas) Zoning
District, making the current setbacks for the property 60' front, 60' rear and 50' to the southern side and 100' to
the northern side due to the adjoining agricultural lot.
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
f such variance will not be of substantial detriment to adjacent property, and that the character of the district will
Frederick County Board of Zoning Appeals Minute Book Page 1348
Minutes of December 20, 2005
not be changed by the granting of the variance.
The applicant is requesting a variance for 40' to the southern side yard setback and 90' for the northern side
yard setback. Should this variance be granted, the building setbacks for this property would be 60' in the front,
60' in the back and would change to 10' on the sides. It appears that this variance meets the intent of the Code of
Virginia, Section 15.222-2309(2). This request from the current setbacks of the R A zoning district may be justified.
Mr. Henry directed the Board to the screen, where he showed them photos of the property.
Mr. Henry stated that the applicant is not here today.
Mr. Rinker asked if there is a trailer currently on the lot and Mr. Henry answered yes. Mr. Rinker stated
that it looks like there's a house on the lot beside of it, and it's notched out around that house. Mr. Rinker asked
if that is right and Mr. Henry responded yes, there's another house right on the property line, about 5' from the
property line.
Mr. Cheran stated that a boundary line adjustment was done in 1999. The house was set and the property
line ran right through the middle of it and that was an easy fix which was done internally.
Mr. Rinker asked if the building site is where the trailer is presently located. Mr. Henry said he believes the
applicant is looking to propose it closer to Hayfield Road, further away from the house.
Mr. Cheran stated they're assuming that's where the applicant wants to put the house, but he's not present to
answer any questions.
Mr. Rinker asked if the variance is for a 10' setback on the sides, are they going to put up an 80' house. Mr.
Henry responded that he did not know.
Mr. Perry stated that he'd like to see the applicant present to answer some questions.
Chairman Catlett stated that they can proceed with this or if there's a motion, they do not have to act on it
without the applicant being present. Chairman Catlett stated that this is the second time they have looked at this
application.
Mr. Perry made a motion that the application be postponed, Mr. Rinker seconded and the vote was
unanimous.
PUBLIC HEARING
Appeal Application 926-05 of Holiday Signs, to appeal the decision of the Zoning Administrator in the
administration of the Zoning Ordinance pertaining to Section 165-30A(1), animated or flashing signs. The
subject property is located at 1400 Tasker Road, and is identified with Property Identification Number 75 -A -
105D in the Opequon Magisterial District.
ACTION —APPEAL APPROVED
Frederick County Board of Zoning Appeals Minute Book Pabe 1349
Minutes of December 20, 2005
Mr. Cheran gave the staff report. The applicant is appealing the decision of the Zoning Administrator in the
'ministration of the Frederick County Zoning Ordinance with regards to LED (Light Emitting Diode) and EMD
electronic Message Display) signs. Section 165-30A(1) of the Frederick County Zoning Ordinance does not
allow animated or flashing signs within Frederick County. Section 165-156 of the Frederick County Zoning
Ordinance defines animated and flashing signs. Section 165-4 of the Frederick County Zoning Ordinance
authorizes the Zoning Administrator to make interpretations and applications of the zoning ordinance. Frederick
County, in keeping with the intent and definition of animated and flashing signs, historically has not allowed this
type of signage.
Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick
County Zoning Ordinance, Section 165-30A(1) and Section 165-156, Sign, H & 1, that LED and EMD signage is
not permitted in Frederick County.
Mr. Cheran directed the Board to the screen, showing the property as well as pictures of the CVS sign
located in Winchester. Mr. Cheran stated that apparently Winchester does allow this type of sign. Staff visited
this site on December 6th, and the sign changed every two minutes.
Mr. Cheran further stated that Mr. Steve Petler, representing Holiday Signs, is present to answer any
questions.
Mr. Rinker asked about the sign for the sports complex that's up along I-81. Mr. Cheran stated that's an
illegal sign. The permit for that sign was issued erroneously, it was staff s fault, but it is an illegal sign. Staff has
not received a complaint and no action has been taken.
Mr. Perry asked if this sign is on the site plan for the building permit. Mr. Cheran stated no, the sign package
was submitted by CVS on Holiday Signs for what they commonly have through permits. Staff sent a
determination letter which brought us here today. Mr. Perry asked if the sign has been erected and Mr. Cheran
stated no, they're holding the permit. Mr. Cheran stated that Frederick County allows franchise signs of a certain
height. This is what CVS generally uses around the country, but as far as Frederick County is concerned, we treat
this as an animated and flashing sign.
Chairman Catlett asked if it's only the portion that changes that's in question and Mr. Cheran stated that is
correct.
Mr. Steve Petler, of Harrison & Johnston, approached the podium and identified himself. Mr. Petler is
representing Holiday Signs, who is the subcontractor with Icon Signs who is the contactor for the CVS signage.
Mr. Robert Moran, President of Holiday Signs, is also present today. Mr. Petler stated that the issue before them is
the fact that this sign is being denied erection per se. Section 165-30A(1) notes that animated or flashing signs are
prohibited in Frederick County. The sign that has been submitted to the County for erection at the CVS is not an
animated or flashing sign. It is LED, EMD and that stands for light emitting diode and electronic message board.
Mr. Petler stated if that sign was erected and a message was put on there and was left up there and never changed,
that would clearly not be in violation of the code. The issue here has to do with this perception that a change in the
message in the LED display creates animation or flashing and that's all that's prohibited under the code. What the
effect of the decision right now by staff is, that sign can't even be erected no matter how often the message
- mges. The sign is not prohibited from being erected, per se, it's prohibited from changing its message. This is
Frederick County Board of Zoning Appeals
Minutes of December 20, 2005 Minute Book Page 1350
the CVS franchise sign.
Mr. Petler directed the Board members to literature he provided them - Chapter 10 of the International
Zoning Code, which pertains to sign regulations. This is a code which is used to supplement and what localities
refer to in their zoning ordinances. Mr. Petler stated that when he read the Frederick County Code, he didn't see
any definition of what animated or flashing is. The International Zoning Code would be a place to turn to after
that to see what the industry defines as animated or flashing. In the International Zoning Code, there is a definition
for an animated sign. An animated sign is one that employs actual motion or the illusion of motion. It also
addresses what flashing is. Flashing is a sign where the illumination is characterized by a repetitive cycle in which
the period of illumination is either the same or less than the period of non -illumination. The sign which Mr.
Cheran showed you pictures of and the sign submitted for application changes on a period that's set by the user. In
the City of Winchester, two minutes is what the City decided to allow as a period of time to change because in that
period of time, it's clearly not flashing. To make another distinction, there is no animation in this sign. When a
cluster of the LED diodes illuminates, another cluster goes out — it doesn't create the illusion of movement. All
this sign does is change the message, remotely, during a certain period of time. Another key aspect of the
definition from the International Zoning Code is the fact that they actually define what cycle of change on the sign
constitutes flashing, and it's a period that's less than four seconds. If it exceeds four seconds before it changes, it
is not a flashing sign. What we're requesting is you allow the sign to be erected with the electronic message board
as part of the franchise sign. We're also requesting that the duration of the message be referred back to Staff to
come up with a time period that would be acceptable. In the interim, the DRRS is scheduled to meet in January to
address revisions to the sign ordinance. CVS is willing to participate in that exercise to clearly define what an
acceptable rate would be so it could be spelled out in the ordinance.
Mr. Bob Moran, President of Holiday Signs, approached the podium. As a practical matter, CVS and
commercial clients in general do not want flashing signs. A more reasonable interval for change is six to ten
seconds and that's what the CVS standard is. With a two minute interval, it's actually a distractive thing to a
driver because people in general are trained to look for the next message.
Chairman Catlett asked Mr. Cheran if he feels that flashing or animated is not completely defined in the
County's ordinance, how does this sign regulation from the International Zoning Code play into it. Does the
County rely on or recognize this code. Mr. Cheran stated no, but if the code were to be changed, they would
probably use that and what other localities use.
Chairman Catlett asked if anyone else is present to speak in favor of this appeal and no one responded. She
asked if anyone is present to speak against the appeal and again, no one responded. The public hearing portion of
the meeting was closed.
Discussion
Chairman Catlett asked if it is possible that the sign can be erected without that portion of the sign being
operational at this time, and then if the zoning ordinance changes in the future, it could become operable.
Mr. Moran responded yes, that's possible, but he asked that the message board be allowed to display a
message
Mr. Shenk asked Mr. Moran if he had run into this situation anywhere else in Virginia. Mr. Moran stated no,
Frederick County Board of Zoning Appeals
Minutes of December 20, 2005 Minute Book Page 1351
not where the sign is banned.
Ms. Mather asked Mr. Cheran if the lighted portion of the sign only changed once every 12 or 24 hours,
.Vould that make a difference. Mr. Cheran responded no, it would not.
Chairman Catlett asked Mr. Cheran if, in his opinion, if it changes, it's considered in violation and Mr.
Cheran responded yes.
Mr. Rinker asked if the message stayed the same seven days a week, 365 days a year, would that be allowed
and Mr. Cheran responded no. Mr. Cheran stated it also becomes an enforcement issue. The best way for this to
happen is to get a text amendment to the Frederick County Zoning Ordinance.
Mr. Petler pointed out that if this were a manual reader board, there's no prohibition about how often the
message could be changed. Just because it's being done electronically is the reason this is being denied,
apparently.
Ms. Mather asked if they could vote on this in two parts to allow the sign to be erected but not allow the LED
portion until the ordinance is changed. Mr. Cheran stated that he would be hesitant to issue a sign permit without
the LED portion and once the permit has been issued, it gives them the right to do it.
The Board Members discussed among themselves and with Mr. Cheran the possibility of allowing the sign to
be erected without the LED board, and also with the LED board and the board only changing every two minutes.
Mr. Shenk made a motion to approve the appeal and allow the sign permit and limit the repetition of the LED
and to two minutes. Mr. Rinker seconded the motion and it passed unanimously.
PUBLIC HEARING
Variance Request #27-05 of Frederick County Sanitation Authority, for a 20' front yard variance
and a 15' side yard variance. This property is located on Route 522, east on Parkins Mills Road,
approximately 1/4 mile on the right, and is identified with Property Identification Number 87 -A -94A I
n the Shawnee Magisterial District.
ACTION — VARIANCE APPROVED
Mr. Kirby gave the staff report. This 6.7326 acre property was purchased by the Frederick County Sanitation
Authority in March of 1988. The Frederick County historical zoning map shows the 59 acre parent tract was
zoned A-2 (Agricultural General) in 1967. The building restriction lines at the adoption of the zoning ordinance
were 35' front and 15' sides. Frederick County amended its Code in 1989 to change the rural zoning districts to
the current RA (Rural Areas) zoning district, making the setbacks for the property 60' front, 100' rear and 50'
sides.
The Code of Virginia, Section 15.2-2309(2), states that no variance shall be authorized by the Board unless it
finds that a) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not
shared generally by other properties in the same zoning district and the same vicinity; and, c) that the authorization
"such variance will not be of substantial detriment to adjacent property, and that the character of the district will
Frederick County Board of Zoning Appeals
Minutes of December 20, 2005 Minute Book Page 1352
not be changed by the granting of the variance.
The applicant is seeking a variance of 40' front yard variance and 35' side yard variance. Should this
variance be granted, the building setbacks for this property would be 20' front yard, 15' right side yard and 15' left
side yard. It appears that this variance meets the intent of the Code of Virginia, Section 15x2-2309(2). This
request from the current setbacks of the RA zoning district may be justified.
Mr. Kirby directed the Board to the screen, showing them pictures of the property. The applicant is present.
Mr. Wellington Jones, Engineer -Director of the Frederick County Sanitation Authority, approached the
podium and identified himself. Mr. Bill Minor, the Project Manager, is also present to answer any questions.
Chairman Catlett asked how close the building closest to the eastern boundary would be to the adjacent
house. Mr. Jones stated the house is owned by the Sanitation Authority, and it's probably 200'. The Sanitation
Authority purchased that property a little over a year ago because they know at some time they're going to need it.
Mr. Perry asked if the house is presently occupied and Mr. Jones stated yes, it's rented.
Mr. Scott asked how large the service area is at this time and Mr. Jones responded the service area for this
facility is basically from Hogue Run down to Stephens City, Route 277. Mr. Jones stated they're expanding the
plant from 2,000,000 gallons a day to 5,000,000 gallons a day.
Mr. Perryasked if they were to incorporate the two tracts of land into one, hypothetically, they wouldn't need
the variance. Mr. Jones stated yes, that's probably the case; however, they don't know what regulations are going
to come out that will effect this plant in the future so that's one of the reasons they want that extra land, to use for
whatever additional processes that they have to meet.
Mr. Cheran stated for the record that West Parkins Mill Road is going to be re -aligned; that is on our road
plan. If we wait on that for the Sanitation Authority, if we kick the road to move a little more north to straighten it
out, we wouldn't be here for the variance but obviously, as Mr. Jones has pointed out, he can't wait. Once that
road gets aligned, he'll have the variance for what he needs but the BZA probably will not be seeing this anymore
because he'd have enough land.
Chairman Catlett stated that she initially had concerns about the residential property, but since she's learned
that it's owned by the County, her concerns aren't major. Mr. Cheran stated that even though the Sanitation
Authority does own it, it doesn't relieve them from having proper buffers as the site plan comes through.
Chairman Catlett asked if there is anyone else in favor of the variance who would to speak and there was no
response. She asked if anyone opposed would like to speak and no one responded. Chairman Catlett closed the
public hearing portion of the meeting
Discussion
Mr. Rinker stated that he was on the Board of Supervisors and sat on the Sanitation Authority Board when
that property was purchased and the plant was built. He doesn't know if that's a conflict of interest now to vote on
it, but he will abstain from voting and further discussion at this point.
Frederick County Board of Zoning Appeals Minute Book Page 1353
Minutes of December 20, 2005
Mr. Perry made a motion to grant the variance as requested. Mr. Scott seconded the motion and it passed
ani nously.
OTHER
Chairman Catlett asked if there is any other business to come before the Board.
Mr. Cheran stated that in the Board's agenda packet is an updated version of the Bylaws and they should be
adopted at the first meeting in January 2006. Mr. Cheran asked the members to look this over before next month
and if they have any changes, please let him know.
As there were no other items or new business to be discussed, the meeting adjourned at 4:40 p.m. by
unanimous vote.
Respectfully submitted,
Theresa B. Catlett, Chairman
Bev Dellinger, Secretary
Frederick County Board of Zoning Appeals
Minutes of December 20, 2005 Minute Book Page 1354
MEETING MINUTES
OF THE
FREDERICK COUNTY BOARD OF ZONING APPEALS
Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street,
Winchester, Virginia, on, January 17, 2006.
PRESENT: Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall
District; Dudley Rinker, Back Creek District; Lennie Mather, Red Bud District; and, Dwight Shenk,
Gainesboro District.
ABSENT: Kevin Scott, Shawnee District; and Robert W. Wells, Member -At -Large.
STAFF
PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; Kevin Henry, Planning
Technician; and, Bev Dellinger, BZA Secretary.
CALL TO ORDER
The meeting was called to order by Chairman Catlett at 3:25 p.m.
Chairman Catlett asked Mr. Cheran the cut-off date for the next meeting. Mr. Cheran replied
that Friday, January 20, 2006, is the cut-off date. We will have two variance applications: the Haley
variance, which the Board is familiar with, and one other variance request, as well as the minutes from
,cember 20, 2005.
Chairman Catlett stated that the first item on the agenda is the election of officers for this year.
Mr. Rinker made a motion to keep the officers that we have at the present time: Theresa Catlett as
Chairman, Robert Perry as Vice Chairman, and Bev Dellinger as Secretary. Mr. Shenk seconded the
motion and it passed unanimously.
Chairman Catlett stated that it has been suggested that the adoption of the By -Laws be postponed
until after the public hearing. Mr. Rinker made a motion that the Board of Zoning Appeals meetings
be held at 3:25 p.m. on the third Tuesday of the month, at 107 North Kent Street in the Board Room.
Mr. Perry seconded the motion and it passed unanimously.
Chairman Catlett stated that due to a potential conflict of interest with her employer, she will
turn the meeting over to Vice Chairman Perry.
PUBLIC HEARING
Variance Request 928-05 of Beverly Longerbeam, for a 45' variance on both sides of the property.
This property is located on Gun Club Road (Route 666), and is identified with Property Identification
Number 45-2-C in the Stonewall Magisterial District.
ACTION — VARIANCE APPROVED (2' VARIANCE ON EACH SIDE)
Frederick County Board of Zoning Appeals
Minutes of January 17, 2006 Minute Book Page 1355
Mr. Henry gave the staff report. Frederick County adopted zoning in 1967. The Frederick County
historical zoning map shows this property was zoned A-2 (Agricultural General) in 1967. The property
setback lines at the adoption of the zoning ordinance were 35' for the front, 25' for the rear and 15' for the
side yards. Frederick County amended its Ordinance in 1989 to change the rural zoning districts to the
current RA (Rural Areas) Zoning District, making the current setbacks for the property 60' front, 50' rear
and 50' to the 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 requesting a 5' variance for both side yards. Should this variance be granted, the
building setbacks for this property would 60' front, 50' rear and would change to 45' on both 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. Henry directed the Board to the screen, where he showed them photos of the property.
Vice Chairman Perry asked if anyone is present to speak in favor of the applicant. Mr. Beverly
Longerbeam approached the podium and identified himself.
Ms. Mather asked Mr. Longerbeam what he intends to put on the lot and Mr. Longerbeam responded a
modular ranch house, roughly 26X52, without a garage. Mr. Longerbeam further stated that he's asking for
5' on either side so that he won't have to pinpoint it exactly within inches of what he has to do. Ms. Mather
stated that Mr. Longerbeam really doesn't need 5', but he'd like 5', and Mr. Longerbeam responded that he
would like to have 5'.
Vice Chairman Perry stated that the Board does not like to give more than what is actually required.
Vice Chairman Perry asked Mr. Longerbeam what he thought a comparable fudge factor for him would be
and if the house is going to be surveyed. Mr. Longerbeam responded he won't have to have it surveyed if he
gets 5' on either side; he can place it himself.
Vice Chairman Perry asked Mr. Longerbeam if he's going to do 52' width and Mr. Longerbeam said
yes.
Mr. Rinker stated that Mr. Longerbeam would use 2' of the 10' requested and Mr. Longerbeam replied
yes. Mr. Longerbeam stated if he only asks for the 2', that pinpoints him to put it dead on and he has no
room if he's off two or three inches, and he'll be back in front of the Board again.
Ms. Mather asked Mr. Longerbeam if he already has the well and septic laid out and Mr. Longerbeam
replied that the septic has already been installed, in the front of the lot, and when the house is placed, it has to
be 10' away from the septic tank and that leaves him about 35' depth. The well goes in the back of the lot.
Vice Chairman Perry asked if anyone is present to speak against the request and no one responded.
Vice Chairman Perry closed the public hearing portion of the meeting.
Frederick County Board of Zoning Appeals
Minutes of January 17, 2006 Minute Book Page 1356
DISCUSSION
Mr. Rinker asked staff if there is a guideline requirement of having a house surveyed, no matter what
size the lot is. Mr. Cheran stated that if you're within 5' of the setback line, you're required to do a site
survey -
Vice Chairman Perry stated that Mr. Longerbeam is going to build a 52' house and he's asking for a 5'
variance on each side, so he's going to need a survey anyway.
Mr. Rinker stated that the Board doesn't like to give 5' if an applicant doesn't need 5'. Mr.
Longerbeam stated that he would like to have 5' but he'll take whatever he can get.
Mr. Rinker made a motion for a 2' variance on each side of the property. Ms. Mather seconded the
motion. The vote was unanimous, with Chairman Catlett abstaining.
Vice Chairman Perry turned the meeting back over to Chairman Catlett.
Chairman Catlett stated that the Board would now consider the review and adoption of the By -Laws.
Chairman Catlett read through the By -Laws and the County's Vested Rights Policy. Board members
discussed changes they felt needed to be made with Mr. Cheran.
Mr. Rinker made a motion to table voting on the By -Laws until the February meeting. Mr. Perry
-conded the motion and it passed unanimously.
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 4:30 p.m. by
unanimous vote.
Respectfully submitted,
Theresa B. Catlett, Chairman
Bev Dellinger, Secretary
Frederick County Board of Zoning Appeals
Minutes of January 17, 2006 Minute Book Page 1357
VARIANCE APPLICATION 925-05
DONALD HALEY
Staff Report for the Board of Zoning Appeals
Prepared: January 24, 2006
Staff Contact: Kevin T. Henry, Planning Technician
This report is prepared by the Frederick County Planning Staff to provide information to the Board
of Zoning Appeals to assist them in making a decision on this request. It may also be useful to
others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
February 21, 2006 - Action Pending
LOCATION: 1008 Back Mountain Road (Route 614)
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER(S): 39-A-82
PROPERTY ZONING & USE: Zoned: RA (Rural Areas)
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RA (Rural Areas) Use: Agricultural
South: RA (Rural Areas) Use: Residential
East: RA (Rural Areas) Use: Agricultural
West: RA (Rural Areas) Use: Agricultural
VARIANCE REQUESTED: A 40' side yard variance on the Southern side and a 90'
variance on the Northern side.
REASON FOR VARIANCE: Narrowness
Variance Request #25-05, Donald Haley
January 24, 2006
Page 2
STAFF COMMENTS:
Frederick County adopted zoning in 1967. The Frederick County historical zoning map shows this
property was zoned A-2 (Agricultural General) in 1967. The property setback lines at the adoption of
the zoning ordinance were 3 5' for the fronts and 15' for the side yards. Frederick County amended its
Ordinance in 1989 to change the rural zoning districts to the current RA (Rural Areas) Zoning
District, making the current setbacks for the property 60'front, 60'rear, 50' to the Southern side and
100' to the Northern side, in which the adjoining property is used agriculturally.
Frederick County zoning requires a 100' setback for any dwelling adjoining a lot which provides an
agricultural land use. The proposal for a 90' variance on the North boundary would be a drastic
decrease from the required setback.
STAFF CONCLUSIONS FOR THE FEBRUARY 21, 2006 MEETING: The Code of Virginia,
Section 15.2-2309(2), states that no variance shall be authorized by the Board unless it finds that a)
strict application of the Ordinance would produce an undue hardship; b) that such hardship is not
shared generally by other properties in the same zoning district and the same vicinity; and, c) that the
authorization of such variance will not be of substantial detriment to adjacent property, and that the
character of the district will not be changed by the granting of the variance.
The applicant is seeking a variance of 40' on the Southern side and 90' variance from the North side
of the property to replace an existing mobile home. Should this variance be granted, the building
setbacks for this property would be: 60' in the front, 60' in the back, and would change to 10' 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.
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OCT 7 20OF
APPLICATION FOR VARIANCE
IN THE
COUNTY OF FREDERICK, VIRGINIA
MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT
1. The applicant is the owner other
2. APPLICANT:
NAME:T)f,,,j1d e { Y �►
LsNi o -e An 4_6A
ADDRESS 1�'�
(Check one)
OCCUPANT: (if different)
NAME:
TELEPHONE: �D� -- (3'77.- A 7<7/ TELEPHONE:
3. The property is located at (give exact directions and include State Route numbers):
4.
,v e��sfi�2 -to- ke - int 4-", s
Poo t, b/ -f- ftp . /.q m, 1—s -o Pp � tY onl ,e,ght
The property has a road frontage of igG feet and a depth of 6 qL,� feet
and consists of /, ,L_-1 t- acres (please be exact).
Page 5 of 9
5. The property is owned by 'Dana -1d L. 4-W� -¢� (�_ I/� evidenced
by deed u offi ; (,Int J , ,; C- ' ` (previous owner) in deed book
no. 947 on page 3lg of the deed books of the Clerk of the Court for
Frederica Co`una y. Please attach a copy of the recorded deed.
6. Magisterial District:
7. Property Identification No.: -3 9 - 14 - S
8. The existing zoning of the property is:
9. The existing use of the property is: /?� S' -"k' T , e � -
10. Adjoining Property:
ZONING
11. Describe the variance sought in terms of distance and type. (For example: "A 3.5'
rear yard variance for an attached two -car garage.'D
-T W 14OLW) e -2i✓
12. List specific reason(s) why the variance is being sought in teens of
-
V4 exceptional narrowness, shallowness, size or shape of property, or
exceptional topographic conditions or other extraordinary situation or condition of
property, or
the use or development of property immediately adjacent thereto
Page 6 of 9
USE
North;>
East
e;
South
West
ZONING
11. Describe the variance sought in terms of distance and type. (For example: "A 3.5'
rear yard variance for an attached two -car garage.'D
-T W 14OLW) e -2i✓
12. List specific reason(s) why the variance is being sought in teens of
-
V4 exceptional narrowness, shallowness, size or shape of property, or
exceptional topographic conditions or other extraordinary situation or condition of
property, or
the use or development of property immediately adjacent thereto
Page 6 of 9
13. Additional comments, if any:
14. The following names and addresses are all of the individuals, firms, or corporations
owning property adjacent to the property for which the variance is being sought,
including properties at the sides, rear and in front of (across street from) the subject
property. (Use additional pages if necessary.) These people will be notified by mail
of this application:
NAME
0PI+A) C Lc C, S L- 2
r p&y
)--XrJ Ok ve L
Address t 0 Y L .l w.Z
Property ID # �� C/� `
Address 0 23 Y S o tceT4
Property ID# 3 9 A 7 101
Address (U
Property ID # 3 4 — / -71
Address -Tq-9 13 a9�
Property ID #
Address 3 �'
Property ID
Address
Property ID #
Address
Property ID #
Address
Property ID #
Page 7 of 9
-4 7 �
-�A -Zb
15. Provide a sketch of the property (you may use this page or attach engineer's drawing)
Show proposed and/or existing structures on the property, including measurements
to all property lines and to the nearest structure(s) on adjoining properties. Please
include any other exhibits, drawings or photographs with this application.
/Q -)'I Z::--1 16
GD
Page 8 of 9
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AGREEMENT
VARIANCE # ,._ C�
Number to be assigned by the Planning Dept.)
I (we), the undersigned, do hereby respectfully make application, and petition the Frederick
County Board of Zoning Appeals (BZA) to grant a variance to the terms of the Frederick
County Zoning Ordinance as described herein. I agree to comply with any conditions for the
variance required by the BZA.
I authorize the members of the BZA and Frederick County officials to go upon the property
for site inspection purposes.
I understand that the sign issued to me when this application is submitted must be placed at
the front property line at least seven ('n days prior to the BZA public hearing and maintained
so as to be visible from the road or right-of-way until the hearing.
I hereby certify that all of the statements and information contained her are, to the best
of my knowledge, true.
SIGNATURE OF APPLICANT
DATE /� / 9—
SIGNATURE OF OWNER
DATE
{if other than zppli ---
-OFFICE USE ONLY-
BZA PUBLIC HEARING OF _/ ACTION:
DA -
APPROVAL SIGNED:
�1 C
_ 1: a ►I
DENIAL DATE:
Page 9 of 9
VARIANCE APPLICATION #01-06
ROY GOTTSCHALK
Staff Report for the Board of Zoning Appeals
Prepared: February 20, 2006
Staff Contact: Bernard S. Suchicital, Planner I
This report is prepared by the Frederick County Planning Staff to provide information to the Board
of Zoning Appeals to assist them in making a decision on this request. It may also be useful to
others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
February 21, 2006 - Action Pending
LOCATION: Lake Serene, on Lake Serene Drive, Lot 36
MAGISTERIAL DISTRICT: Gainesboro
PROPERTY ID NUMBER(S): 31B-1-36
PROPERTY ZONING & USE:
Zoned: RA (Rural Areas)
Land Use: Vacant and Residential
ADJOINING PROPERTY ZONING & USE:
North: RA (Rural Areas)
South: RA (Rural Areas)
East: RA (Rural Areas)
West: RA (Rural. Areas)
Use: Lake
Use: Common Land
Use: Residential
Use: Residential
VARIANCE REQUESTED:
A 35' variance for both the left and right sides of the property.
REASON FOR VARIANCE:
The lot predates the current zoning ordinance with regards to RA setbacks and prevents any new
structure to be built.
Variance Request #01-06, Roy Gottschalk
February 20, 2006
Page 2
STAFF COTWIT I NTS:
Frederick County adopted performance zoning in 1967. The Frederick County historical zoning map
shows this 1.00 acre property was zoned A-1 (Agricultural Limited) in 1972. The property setback
lines at the adoption of the zoning ordinance were 35' front and 15' sides. Frederick County
amended its Ordinance in 1989 to change the rural zoning districts to the current RA (Rural Areas)
Zoning District, making the current setbacks for the property 60' front, 50'rear and 50' sides.
STAFF CONCLUSIONS FOR THE FEBRUARY 21, 2006 MEETING:
The Code of Virginia, Section 15.2-2309(2), states that no variance shall be authorized by the Board
unless it finds that a) strict application of the Ordinance would produce an undue hardship; b) that
such hardship is not shared generally by other properties in the same zoning district and the same
vicinity; and, c) that the authorization of such variance will not be of substantial detriment to
adjacent property, and that the character of the district will not be changed by the granting of the
variance.
The applicant is seeking a variance of 35' on the left and right sides of the property to build
residential structure of approximately 2,877.24 square feet in size. Should this variance be granted,
the building setbacks for this property would be: 60' in the front, 50' in the back, and would change
to 15' 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 maybe justified.
APPLICATION FOR VARIANCE
IN THE
COUNTY OF FREDERICK, VIRGINIA
MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT
1. The applicant is the owner ✓ other . (Check one)
2. APPLICANT: OCCUPANT: (if different)
NAME: Ge��-sc_6P_ NAME:
ADDRESS IS kCtVe S C Q✓. ADDRESS:
W IRC. e5Te✓ 1 ka.1bo3
TELEPHONE:6 yC (,,&7,.2 (9 TELEPHONE:
3. The property is located at (give exact directions and include State Route numbers):
J j T 0 t,d}�G7 *?�,
4. The property has a road frontage of 1 0 deet and a depth of '�,- ' feet
and consists of I acreslease be exact).
(Pa
Page 5 of 9
5. The property is owned by 0 &/ C101 5 C �+ cd �_ as evidenced
by deed from Jr'U f_# 1,4 �, s (,,�,Ee recorded (previous owner) in deed book
no. on page of the deed books of the Clerk of the Court for
Prederick Coun y. Please a teach a copy of the recorded deed.
6. Magisterial District:(? lac ► S h K
7. Property Identification No.: 3 18-- 1 .3 (o
8. The existing zoning of the properly is: 0,
9. The existing use of the property is: o A A e A G w e (�
10. Adjoining Property:
USE j ZONING
North %,��1CC ��es� �t����dq G ck V
3
East des AtlltaNl, 10
South Q z .� i4en G ,
West C,
11. Describe the variance sought in terms of distance and type. (For example: "A 3.5'
rear yard variance for an attached two -car garage.")
/, % `epi S f— /Z f'rf— 121,4117— -55,i_�
12. List specific reason(s) why the variance is being sought in terms of
exceptional narrowness, shallowness, size or shape of property, or
exceptional topographic conditions or other extraordinary situation or condition of
property, or
the use or development of property immediately adjacent thereto
f.c^qs +1 'n(j`o. �1 �iCfL{=i '6 1 Y)l S5'�I
l�Sy,, k f" K ' �i Z YC
`40 ;I-1 'C' (' � 1
o
Page 6 of 9
13. Additional comments, if any:
14. The following names and addresses are all of the individuals, firms, or corporations
owning property adjacent to the property for which the variance is being sought,
including properties at the sides, rear and in front of (across street from) the subject
property. (Use additional pages if necessary.) These people will be notified by mail
of this application:
W UI
Pc e- s .., T,
Address
Property ID # 3 l 1 -
QAddress
Li )_ S Ci l� e SZ k-,, h L- 0
Property ID # 3 j P) -- 1 - .3-5
i e- rO t. 'T kc.
Address JJ z
Property ID #
Address
Property ID #
Address
Property ID #
Address
Property ID #
Address
Property ID #
Address
Property ID #
Page 7 of 9
15. Provide a sketch ofthe property (you may use this page or attach engineer's drawing).
Show proposed and/or existing structures on the property, including measurements
to all property lines and to the nearest structure(s) on adjoining properties. Please
include any other exhibits, drawings or photographs with this application.
Page 8 of 9
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% 33,106 SO. FT. /
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S 4800"12" W 121.12 �� IRF S 483738'" W
LOT 37
LAKE SEREPVA DSI �Z- a
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3
!� Q
F!. 00,9 A/01-1'—. _
ZONE.- C L EGE ALS
COMMUNITY NO.: 510063 IRF — IRON ROD FOUND
PANEL: 0105 B
DATE: 07-17-78 GRAPHIC SCALE
A/0TE, : 50 0 25 50 loo
1. NO TITLE REPORT FURNISHED. '
2 PROPERTY IDENTIFICATION NO. 31B-1-36 1 inch = 50 ft.
J. EASEMENTS MAY EXIST THAT ARE NOT SHOWN ON THIS PLAT
4. THE BOUNDARY INFORMATION SHOWN HEREON IS BASED ON AN ACTUAL FIELD RUN SURVEY MADE
ON JUNE 16 2005 ORIENTED TO A PLA T DA TED JUL Y 9 1969 BY LEE A EBERT C L S
TH. OF
PLA T SHOWING j'
LOCA T10:v' OF PROPOS-29 HOUSF
L 36
LAKEGSERENEw0ga RIV s e
LAKE SERENE D E
GAINESBORO MAGISTERIAL DISTRICT No. 0 119
FREDERICK COUNTY, VRGINIANO ER /Z�� S
REVISED. V DECEMBER 14, 2005 C4IDS U R'4 v,
ID 7051 -KB KHB
560 NORTH LOUDOUN
MARSH & LEGGE WINCHESTER, IRGNIASTREET 22601NE (540) 667-0468
M
1 Land Surveyors, P. L.C. PH FAX (540) 667-0469 '
Page 1 of
Parcel Ma
Frederick County Department of Geographic Information Systems
aimer: Frederick County does not give any expressed or implied warranties, conditions, representations,
anities of any kind, statutory or otherwise, concerning any or all of the Frederick County GIS data. Frederick
ty GIS data is a "work in progress" and is provided as is, with all its faults.
uestions about the website or mapping please contact the Dept. of GIS at 540-665-5614. For questions on the Tax
ase please contact the Commissioner of Revenue at 540-665-6358
http://gis.co.frederick.va.us/Freeance/Client/PublicAccess 1 /PrintFrame.htTnl 10/7/2005
AGREEMENT
VARIANCE # 6 / - Q 6
(Number to be assigned by the Planning Dept.)
I (we), the undersigned, do hereby respectfully make application, and petition the Frederick
County Board of Zoning Appeals (BZA) to grant a variance to the terms of the Frederick
County Zoning Ordinance as described herein. I agree to comply with any conditions for the
variance required by the BZA.
I authorize the members of the BZA and Frederick County officials to go upon the property
for site inspection purposes.
I understand that the sign issued to me when this application is submitted must be placed at
the front property line at least seven (7) days prior to the BZA public hearing and maintained
so as to be visible from the road or right-of-way until the hearing.
I hereby certify that all of the statements and information contained herein are, to the best
of my knowledge, true.
SIGNATURE OF APPLICANT
DATE / -/ F�C
SIGNATURE OF OWNER
DATE
(if other than applicant)
-OFFICE USE ONLY-
BZA PUBLIC HEARING OF ACTION:
- DATE -
APPROVAL SIGNED:
BZA CHAIRMAN
DENIAL DATE:
Page 9 of 9