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BZA 05-16-06 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia May 16, 2006 3:25 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of April 18, 2006 PUBLIC HEARING 3) Variance Request #07-06 of Elizabeth Ann Cook, for a 35' variance on the eastern side of the property. This property is located on Bethel Grange Road (Route 630), Lot 153, and is identified with Property Identification Number 41-A-153 in the Gainesboro Magisterial District. ***POSTPONED*** 4) Appeal Application #06-06 of Pierce Hardy to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to Section 165-30 — Signs G -Height and H (1) - Size. The subject property is located off of Route 11 South on Yardmaster Court, and is identified with Property Identification Number 44 -A -75-B in the Stonewall Magisterial District. 5) Appeal Application #09-06 of Valley Farm Credit, 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 fronts Route 11, south of the interchange of Route 37 and Interstate 81, within the Kernstown Business Park, and is identified with Property Identification Number 75 -A -2G in the Back Creek Magisterial District. 6) Appeal Application #08-06 of Arogas, Inc., submitted by Mark E. Stivers, Esquire, to appeal the decision of the Zoning Administrator pertaining to proposed uses of the 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. 7) Other I- FILE COPY 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, April 18, 2006. PRESENT: Theresa Catlett, Chairman, Opequon District; Dudley Rinker, Back Creek District; Lennie Mather, Red Bud District; Dwight Shenk, Gainesboro District; and 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; 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. Shenk and seconded by Mr. Scott, the minutes for the Mai -ch 21, 2006 meeting were unanimously approved as presented. Chairman Catlett asked Mr. Cheran the cut-off date for the next meeting. Mr. Cheran replied that Friday, April 21, 2006, is the cut-off date. PUBLIC HEARING Variance Request #02-06 of Donald Haley, for a 34' southern side yard and an 82' northern 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 APPROVED Mr. Henry gave the staff report. Frederick County adopted performance zoning in 1967. The Frederick County historical zoning map shows this 1.00 acre property was zoned A-2 (Agricultural Limited) in 1972. The property setback lines at the adoption of the zoning ordinance were 35' for the fronts (any time property faces a road) 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' to the southern side and 100' to the northern side, in which the adjoining property is used agriculturally. This property is unique in that it has two front yards because of the existing road location. 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 Frederick County Board of Zoning Appeals Minutes of Aprit 18, 2006 Minute Book Page 1370 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 variance of 34' on the southern side and 82' for the northern side yard. Should this variance be granted, the building setbacks for this property would be 60' to the front, 60' to the back and new side setbacks of 16' on the southern side and 18' to the northern side. 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. Donald Haley approached the podium and stated that he had gotten the property surveyed as requested. Chairman Catlett asked if anyone else is present in favor of the variance request who would like to speak and no one responded. Chairman Catlett asked if anyone who is opposed would like to speak and no one responded. The public hearing portion was closed. Discussion Mr. Rinker stated that Mr. Haley has complied with the Board's request. He made a motion to grant Application 02-06 with the new setback numbers. Mr. Scott seconded the motion and it was unanimously approved. PUBLIC HEARING Variance Request #03-06 of Matthew Robertson, for a 36' side yard variance. This property is located on East Parkins Mill Road (Route 644), Lot 51, and is identified with Property Identification Number 77-A-51 in the Shawnee Magisterial District. ACTION — VARIANCE WITHDRAWN Mr. Cheran stated that this variance has been verbally withdrawn. The Zoning Administrator sent Mr. Robertson a letter stating that a written withdrawal would be appreciated; however, Mr. Robertson did not comply with that request. PUBLIC HEARING Appeal Application 904-06 of Stephens City GF LLC, submitted by Greenway Engineering, 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 the northeast intersection of Fairfax Pike (Route 277) and Double Church Road (Route 641), being developed as Fredericktowne Crossing Commercial Center, and is identified with Property Identification Number 86-A-10 in the Frederick County Board of Zoning Appeals Minutes of April 18, 2006 Minute Book Page 1371 Opequon Magisterial District. ACTION — APPEAL APPROVED Mr. Cheran gave the staff report. The applicant is appealing the decision of the Zoning Administrator as to the use of LED (Light Emitting Diode) signage in Frederick County. The Frederick County Zoning Ordinance does not define this type of sign; Section 165-4 of the Frederick County Ordinance authorizes the Zoning Administrator to make interpretations and applications of the zoning ordinance. Historically, Frederick County has not allowed this type of signage. Any change to the Frederick County Zoning Ordinance is a legislative action and not within the scope of the BZA Board. Furthermore, 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. 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 & I, that LED signage is not permitted in Frederick County. Mr. Cheran stated for the record that Mr. Evan Wyatt of Greenway Engineering is present and is representing the applicant. Mr. Evan Wyatt approached the podium and identified himself as representing the applicants, Stephens City GF LLC, regarding this matter. Mr. Wyatt stated that he agreed with the staff report until Mr. Cheran said that the ordinance says these aren't permitted. Actually, the ordinance does not define them and, because of that, Mr. Cheran is tasked with the determination of what these signs may or may not represent. With the LED technology, the zoning ordinance does not currently define that. Therefore, Mr. Cheran has determined that this would represent an animated or flashing sign as the type of sign. Mr. Wyatt stated, for those who may not be familiar with the site, that Martin's is developing a shopping center in Stephens City at the intersection of Rt. 277 and Double Church Road. The County's Development Review Committee is doing a complete overhaul of the sign ordinance, but the outcome cannot be guaranteed by the Board of Supervisors. Mr. Wyatt gave the Board members a hand-out showing an example of the sign that is being requested. Basically, it's typical of the standard shopping center sign; 150 square feet, and in this case, it's lower than the 35 foot height allowance in that zoning district. Mr. Wyatt wants to impress upon the Board that it is an illuminated sign and the name of the plaza, the anchor store and the tenants would be illuminated. This is not any part of the LED technology being requested. The LED technology being requested is for the gasoline sales prices that are on the sign, which in more normal times, are changed only on a one -to -two week basis. Mr. Wyatt emphasized that this is a sign that is highly unlikely to change during a 24 hour period, and if so, only once. Mr. Wyatt asked that the Board uphold their appeal request of Mr. Cheran's determination. Chairman Catlett asked if anyone else would like to speak in favor or in opposition of the appeal request and no one responded. Frederick County Board of Zoning Appeals Minutes of April 18, 2006 Minute Book Page 1372 Discussion Mr. Cheran cautioned that the sign could be used as a flashing sign; it can be controlled from a different source and could be used as a flashing sign. Mr. Rinker asked if the rest of the sign met all the requirements and Mr. Cheran stated yes, it does. Chairman Catlett asked Mr. Wyatt to clarify if he said he is not intending for any sort of flashing sign, only to change when the gasoline prices change. Mr. Wyatt stated that is correct; it is a price display sign only. Mr. Wyatt further stated that they would be amenable, if the appeal is upheld, to put a condition on it that it could not be used as a flashing sign. Mr. Scott made a motion to approve the appeal as submitted, with the condition that the sign remains as a price sign only with no flashing mechanism. Mr. Shenk seconded the motion and it passed unanimously. PUBLIC HEARING ACTION — VARIANCE APPROVED Variance Request #05-06 of P. Duane Brown, submitted by Marsh & Legge Land Surveyors, PLC, for a 20' side yard variance. This property is located at the southeast corner of the intersection of Double Church Road (Route 641) and Hudson Hollow Road (Route 636), and is identified with Property Identification Number 86 -A -260A in the Opequon Magisterial District. Mr. Henry gave the staff report. The property setback lines at the adoption of the zoning ordinance were 35' for the fronts and 15' for the side yards. Frederick County amended its ordinance in 1989 to change the A2 zoning districts to the current RA (Rural Areas) zoning district, making the current setbacks for the property 60' to the fronts, 50' to the 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 20' variance for the eastern side yard. Should this variance be granted, the building setbacks for this property would be 60' on both fronts, 50' in the back and would change to 30' on the eastern side. 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. Frederick County Board of Zoning Appeals Minute Book Page 1373 Minutes of April 18, 2006 Mr. Henry stated it's important to note that by changing the location of the house that already exists, this allows for less non -conformity. The current house is sitting at 33' off of Hudson Hollow and 17.4' on the other front. Moving it back will put it in conformance with the front setback. Mr. P. Duane Brown, with Marsh & Legge Land Surveyors, approached the podium and identified himself as representing the owners, Mr. and Mrs. Wayne Wright. (Mr. Brown walked away from the microphone to give the Board members a hand-out. He continued talking, but the microphone did not pick up anything he said.) Mr. Brown stated that the Wrights are trying to work with the Highway Department, unfortunately based upon the current conditions; any kind of slope grading done along that side would be detrimental to the existing structure, which is not in great shape. The Wrights would like to be able to build a new house further back within conformance to the setback regulations. When the property was created in 1979, the setbacks were totally different than from now. They are asking for a variance request to reduce the side yard to 30' to allow a sufficient structure to be built and the Highway Department can do the work they need to do to improve the sight distance. Chairman Catlett asked if anyone is present in favor of the variance request who would like to speak and no one responded. Chairman Catlett asked if anyone opposed to the request would like to speak. Mrs. Nathella Kitts is an adjoining property owner. Mrs. Kitts is not really opposed to a variance but there is a lot of history to the old house. Mrs. Kitts does not want to see a lot of extra building going up around them. As there was no one else who wanted to speak, Chairman Catlett closed the public hearing portion of the meeting. Discussion Ms. Mather asked if the house that's going to be built will be occupied by the owners. Mr. Cheran stated that would be up to the property owners. Mr. Cheran stated that the Wrights have been working with the Virginia Department of Transportation; they were approached by the District Engineer and the Right -of -Way Agent. VDOT has the authority to condemn the land because of setback issues. Mr. Rinker made a motion to approve the variance request. Mr. Shenk seconded 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 4:05 p.m. by unanimous vote. Frederick County Board of Zoning Appeals Minutes of Aprii 18, 2006 Minute Book Page 1374 Respectfully submitted, Theresa B. Catlett, Chairman Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Minutes of Aprit 18, 2006 Minute Book Page 1375 APPEAL APPLICATION #66-06 PIERCE PARRY Staff Report for the Board of Zoning Appeals w Prepared: May 1, 2006 Staff Contact: Mark R. Cheran, Zoning Administrator 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: May 16, 2006 - Pending LOCATION: Route 11 South on Yardmaster Court MAGISTERIAL DISTRICT : Stonewall PROPERTY ID NUMBER(S): 44 -A -75-B PROPERTY ZONING & USE: Zone: Land Use ADJOINING PROPERTY ZONING & USE: North: Zone RA (Rural Areas) East: Zone B3 (Industrial Transition Business) South: Zone B3 (Industrial Transition Business) West: Zone B3 (Industrial Transition Business) B3 (Industrial Transition Business) District Retail — Lumber Yard Land Use: Undeveloped Land Use: Undeveloped Land Use: Undeveloped Land Use: Undeveloped APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-30 — Signs, G -Height and H(1) - Size. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to the square footage and height of their sign. Appeal Application 406-06, Pierce Hardy May 1, 2005 Page 2 S'T'AFF - OIAYIEll TS: The applicant is appealing the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance with regards to Section 165-30 G of the Frederick County Zoning Ordinance. This section of the ordinance regulates signage height in its zoning districts. Signage height in the B-3 (Industrial Transition) Zoning District is not allowed to exceed thirty-five (3 5) feet in height. The applicant submitted a sign permit with a sign at sixty (60) feet in height. This proposed signage exceeds the allowed sign height in the B-3 Zoning District. The applicant also applied on the same sign permit for a sign to exceed 150 sq. ft. in area. Section 165-30 H(1) of the Frederick County Zoning Ordinance allows for franchise signage to be 150 sq. ft. in size. The applicant submitted a sign with an area of 200 sq. ft. This sign exceeds the maximum sign area for a franchise sign. It is important to note that in 1997 the County did study and ultimately adopt an ordinance establishing the IA Interstate Area overlay district to enable larger signs (heights and display face sizes) at appropriate locations. These locations deemed appropriate for the larger signs were further identified and designated to be adjacent to I-81 interchanges. As the subject site of this BZA appeal is not adjacent to an interstate interchange, nor does the site have direct vehicular access to the interstate, the IA district sign regulations do not apply. As such, the County Ordinance, which is based on previous studies on visibility and traffic speeds, would not permit the larger sign as sought by the appellant. STAFF CONCLUSIONS FOR THE MAY 1.6, 2006 MEETING: Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-30G and H(1) regarding height and sign area for signage that is not permitted in Frederick County. 'MdltlN08 333N �� bNb/771�g S8 v 4D A 69 ING �" d 88��b3�4Vy7�NM0?/� VIR�tW10.PIP, pC• b68 Z zzz 7 sLO co O V C m a W <O r VIVI 1 � . • v> .rte \ ``� w I..L w t t fiVA b'` ¢ E u18 61 if •, 1 ` E� ` � t m m m� f E s d oto 214 d ` `i W ` a via j4Fs�• r� ..,. , 'M O�E'N021 �d3N bNb77717 8 plb3 S8 tl trb 89 8W �p�VIRGINIA,%Nc 88 y yp� NM08g � 4a _ _ r• �NiSNOs - rs a'lt�•� bsa y � N/I� � �4 �j�,�r � •h9s�`rafp b � royyy �,, `a O a LO CO �LL 6 0 O CQ Qi i a ^Q C6 N 10 15 6 d6 v ,z Wil' 1• U' E S Q } m L J 1 �s >_y M d r Q Y 4 § 165-30 ZONING § 165-30 the separation between the two signs was reduced from the required 50 feet. G. H!2!aht. No sign shall exceed the maximum height requirement for the zoning district in which they are located. Business signs located in the RA (Rural Areas) Zoning District shall not exceed 10 feet in height. All signs other than business signs shall be no more than 10 feet in height. No freestanding business entrance sign shall exceed five feet in height. [Amended 12-14-20051 H. Size. The following restrictions shall apply to the size of signs: (1)_ No business sign or directional sign shall exceed 100 square feet in area. Standardized franchise signs may exceed 100 square feet in area, but shall not exceed 150 square feet in area. In the B-1 (Neighborhood Business) District and the RA (Rural Areas) Zoning District, no business sign or directional sign shall exceed 50 square feet in area. [Amended 12-14-2005] (2) Cottage occupation signs shall not exceed four square feet in area. (3) Wall -mounted business signs in the B2 Business General, the B3 Industrial Transition, M1 Light Industrial, the M2 Industrial General or the MS Medical Support Districts shall be permitted to encompass 20% of the area of the wall to which the sign is attached, provided that the total area of the wall -mounted business sign does not exceed 200 square feet. [Amended 9-12-20011 (4) No freestanding building entrance sign shall exceed four square feet in area. Maintenance. All signs shall be maintained in a state of good repair. Signs that are damaged, structurally unsound or poorly maintained shall be repaired or removed within 30 days. (1) If an off -premises sign advertises a business or activity that is no longer being operated or conducted or if a directional sign refers to a location where the advertised activities no longer exist, that sign shall be considered to be abandoned and shall be removed by the owner within 30 days. 16549 02-10-2006 HAND DELIVERED March 24, 2006 Mr. Dave Eicher Pierce Hardy Limited Partnership 1019 Route 519, Building 45 Eighty -Four, PA 15330 COUNTY of FREDERICK Department of Planning and Development 54Q/ 665-5658 FAX: 540/665-6395 RE: Zoning Determination of Proposed Signage (S4 Lumber) Property Identification Number (s) (PIN): 44 -A -75A Zoning District: B-3 (Industrial Transition) Dear Mr. Eicher: This letter is in response to your correspondence dated February 9, 2006, and updated on March 24, 2006, to the Zoning Administrator requesting a zoning determination on signage on the above - referenced property. In the correspondence, you indicated the size, number, and square footage of signage proposed for this site. 1. The sign you identified as sign 1 in your correspondence is allowed under the Frederick County Zoning Ordinance. 2. The sign(s) you identified as sign(s) 2 & 3, exceed the square footage indicted in the Frederick County Zoning Ordinance. Wall -mounted signs may encompass 20% of the wall area provided the sign does not exceed 200 square feet. Therefore, the wall -mounted sign submitted with sign permit # 2945 can not be approved. The total square feet of the wall - mounted sign is 338 square feet. 3. The sign that you want to locate along Interstate 81 exceeds the square footage allowed by the Frederick County Zoning Ordinance, franchise signs will not exceed 150 square feet in area. This proposed sign is 200 square feet and is not allowed. Height of any signs in this zoning district shall not exceed 35 feet in height. The proposed freestanding of 50 feet is not allowed. You may have the right to appeal this zoning determination within thirty (3 0) days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable if it is not appealed within thirty (30) days. Should you choose to appeal, the appeal 107, North Kent Street, Suite 202 - Winchester, Virginia 22601 -5000 Page 2 Mr. Dave Eicher Re: Zoning Determination of Proposed Signage (84 Lumber) March 24, 2006 must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165-155A(1) ofthe Frederick County Zoning Ordinance. This provision requires the submission of an application form, written statement setting forth the decision being appealed, date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information you may want to submit and a $300.00 filing fee ($250.00 filing fee and $50.00 refundable sign deposit). Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. Contact me regarding any questions you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator cc: The Adams Development Group, Inc. HC 34 Box 30 Bloomery, WV 26817 MRC/dlw APPLICATION FOR APPEAL IN THE COUNTY OF FREDERICK, VIRG11`411A -OFFICE USE ONLY - Appeal Application #"' .� Submittal Deadline Submittal Date Ay. tFor the meeting of Fee Paid yes initials: MUST RE TYPED OR FILLED Ott IN WK - PLEqA_SE PRINT 1. The applicant is the owner �/ other . (Check one) 2. APPLICANT: NAME: 1 i6 ADDRESS ; ri; 4-- A EJ,tv k,,�r vl TELEPHONE:t—"7 i —LI'Afl Ai_sye OCCUPANT: (if different) NAME: ADDRESS: TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): �-A /V L;'tj I L e1r 1. j 4. Magisterial District: 'St netvidu 5. Property Identification No.: A 7S 6. The existing zoning of the property is:-y� 7. The existing use of the property is: 8. Adjoining Property: USE ZONING North ()IIJuve1'jO East South l , West 9. Describe the decision being appealed. (Attach a copy of the written decision.) �� diyl y ;'�`ix'�a�'�, lt.� ��CiSi4r• � �d �1 Gid ��'G�i.�/ ' [ 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) "COW car 1, ��yyrra 9 I 11. Additional comments, if any: 12. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the appeal is being sought, including properties at the sides, rear, and in front of (across street from) the subject property. (Use additional pages if necessary.) Theqe ni-nnig- un,ii j,� by inna-111 Of thils -application: (Please list Property Identification Number.) NAME I ' - i" z , Address i J Property ID # 1 Z12 0 V,534, 5 Address Property ID # tA IJ L, Address Property ID # Address Property ID # Address Property ED # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID 9 AG RETEMENT APPEAL # I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions 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 hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. Iii f 1 •` )) ` SiGPdA UFSF AI�>pl< ICAI"JT >� '✓, DATE is SIGNATURE OF OW `TEAR (if other than applicant) -OFF USE ONLY- ;IIATE BZA PUBLIC HEARING OF ACTION: - DATE- APPEAL ATE-APPEAL 3VERRULED APPEAL SUSTAINED SIGNED: DATE: File: 09Lmd Use Applications\Application Fo msWPPEAL Revised: 01/] 4/03 3ZA CHAIRMAN r..I n, n„ SIGN CAE ONNECTIO BY 0 :ESS 30VE GR TAIL B =SS COLI c� APPEAL APPUCA T ION #09-06 00 MALLEI( FARM CREDIT w Staff Report for the Board of Zoning Appeals w Prepared: May 1, 2006 Staff Contact: Mark R. Cheran, Zoning Administrator 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: May 16, 2006 - Pending L OC'AT1 ON: Fronting Route 11, south of the interchange of Route 37 and Interstate 81, within the Kernstown Business Park VIAGISTERIAL IRIS T Rl! C -T: Back Creek PROPERTY ID NUMBERN: 75 -A -2G PROPERTY ZONING & USE: Zoning: Land Use: ADJOINING PROPER'T'Y ZONING & USE: North: Zone B2 (General Business) East: Zone B2 (General Business) South: Zone B2 (General Business) West: Zone B2 (General Business) B2 (General Business) District Commercial Land Use: Vacant Land Use: Commercial Land Use: Vacant Land Use: Commercial APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-30A(I), animated or flashing signs. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to the use of LED (Light Emitting Diode) signage in Frederick Comity. Appeal Application #09-06, Valley Farm Credit Mayl, 2006 Page 2 STAFF COMMENTS: The applicant is appealing the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance with regards to LED (Light Emitting Diode) signs and EMB (Electronic Message Board). The Frederick County Zoning Ordinance does not define this type of sign; Section 165-4 of the Frederick County Zoning Ordinance authorizes the Zoning Administrator to make interpretations and applications of the zoning ordinance. Historically, Frederick County has not allowed this type of signage. Any change to the Frederick County Zoning Ordinance is a legislative action and not within the scope of the BZA Board. Furthermore, Section 165-30 A(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. (See attachments). STAFF CONCLUSIONS FOR, THE MAY 16, 2006 MEETING: 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, that LED and EMB signage is not permitted in Frederick County. U .911 Ngo CD CN c N m W% co 0 < Ir Is se 1 o of w o U d. I ' � U Of a � � N N r i z N J ~ s (n Q Uw 2f - O z' 75 P' Zi � STROSNY�ER, TYLE P, INC. z oLo \ " N a AV w � CO ^ mew CL 1 U N ` ` ►r c� CU CD "N a< a 4� j iC yI a- +( Q Y W. J its !' 2 Q � "L - ELU19 E - � Sl, °fib � -' ♦!J!>OO — w w rZ dOti bs�dNe a� nle U W a =av E r + ri Qa F_W di m _ fL ' ! N y ..., !. �_ •� ria .1 2C2<p:2ir GO W ` N OD I Q LU LU ~'` = O �` U 0 N Z A N Q Q [) Q M" N r O STROSN . - z 9Y t § 165-29 FREDERICK COUNTY CODE § 165-30 (2) In such cases, the Zoning Administrator may require a traffic access plan which describes existing traffic, conditions and design on the streets abutting the site and the methods proposed to ensure that the intent of this section has been met. C. Internal circulation. A complete system of internal traffic circulation shall be provided to serve all uses in any shopping center, industrial park or any development included in a single master development plan, site plan or subdivision plat approved by Frederick County. In such developments, internal access shall be provided in a fashion so that all uses can be mutually accessed without entering onto arterial or primary highways. In such cases, a pattern of internal circulation shall be designed to ensure that conflicts are avoided between moving vehicles, parking areas, pedestrian areas, loading areas and the various uses provided. D. Pedestrian access. Safe pedestrian walkways shall be provided to all uses on land included in a master plan or site plan approved by Frederick County. Sidewalks shall be provided in conformance with adopted corridor or walkway plans or approved master development plans. The Planning Commission may require additional sidewalks or walkways on master plans or site plans to promote a general system of pedestrian access in residential neighborhoods or business corridors. E. Fire lanes. Fire lanes shall be required as set forth in Chapter 90, Fire Prevention. [Added 12-9-19921 § 165-30. Signs. Signs shall be allowed or prohibited according to the following requirements in order to promote safety, to protect property values, to create an atmosphere conducive to orderly economic growth and to meet the intentions of this chapter: A. Signs prohibited in all districts. The following types of signs shall be prohibited in all zoning districts: (1) Animated or flashing signs. (2) Signs painted directly onto the exterior of buildings. 16546 12-15-99 § 165-29 FREDERICK COUNTY CODE § 165-30 (2) In such cases, the Zoning Administrator may require a traffic access plan which describes existing traffic, conditions and design on the streets abutting the site and the methods proposed to ensure that the intent of this section has been met. C. Internal circulation. A complete system of internal traffic circulation shall be provided to serve all uses in any shopping center, industrial park or any development included in a single master development plan, site plan or subdivision plat approved by Frederick County. In such developments, internal access shall be provided in a fashion so that all uses can be mutually accessed without entering onto arterial or primary highways. In such cases, a pattern of internal circulation shall be designed to ensure that conflicts are avoided between moving vehicles, parking areas, pedestrian areas, loading areas and the various uses provided. D. Pedestrian access. Safe pedestrian walkways shall be provided to all uses on land included in a master plan or site plan approved by Frederick County. Sidewalks shall be provided in conformance with adopted corridor or walkway plans or approved master development plans. The Planning Commission may require additional sidewalks or walkways on master plans or site plans to promote a general system of pedestrian access in residential neighborhoods or business corridors. E. Fire lanes. Fire lanes shall be required as set forth in Chapter 90, Fire Prevention. [Added 12-9-19921 § 165-30. Signs. Signs shall be allowed or prohibited according to the following requirements in order to promote safety, to protect property values, to create an atmosphere conducive to orderly economic growth and to meet the intentions of this chapter: A. Signs prohibited in all districts. The following types of signs shall be prohibited in all zoning districts: (1) Animated or flashing signs. (2) Signs painted directly onto the exterior of buildings. 16546 12-15-99 COU I T Y of FREDERICK Depar''rdiia&"t of Pla allIg and Deveiapr eni 50/665-5651 24, 2006 Pies': 540/665-6395 Robert N. Carpenter, President/CEO Valley Farm Credit 125 Prosperity Drive Winchester, VA 22602 RE: Zoning Determination of Proposed signage (galley Fara, Credit) Property Identification Number (PIIS): 75-A-16 Zoning District: B-2 (Business General) Dear Mr. Carpenter: This letter is in response to your correspondence dated April 17, 2006, to the Zoning Administrator requesting a zoning determination on signage on the above -referenced property. In the correspondence, you referenced the proposed sign for Valley Fann Credit will be of an LED (Light Emitting Diode) sign, with a changing message Section 165-30 of the Frederick County Zoning Ordinance does not specify this type of sign, but prohibits the use of animated and flashing signs in Frederick County. This type of sign has the ability to be used as an animated or flashing sign. Furthermore, Section 165-4 of the Frederick County Ordinance allows the Zoning Administrator to make interpretations of the applications of the Zoning Ordinance. Frederick County has traditionally not allowed the use of these types of signs. You may have the right to appeal this zoning determination within thirty (30) days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable if it is not appealed within thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165- 155A(1) of the Frederick County Zoning Ordinance. This provision requires the submission of an application form, written statement setting forth the decision being appealed, date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any ether information you may want to submit and a $300.00 filing fee ($250.00 filing fee and $50.00 refundable sign deposit). Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. Contact me regarding any questions you may have at (540) 665-5651. Sincerely,.. M rk R. Cheran Zoning Administrator MRC/bad APPLICATION FOR APPEAL IN THE COUNTY OF FREDERICK, VIRGINIA OFFICE USE ONLY - Appeal Application #�' -- Submittal Deadline Submittal Date yQ For the meeting of J Fee Paid yes initials: NfUS 1i BE TYPED OR FILLED D OUT .IN P;K - 51LEASF, li--pa1T 1. The applicant is the owner other L. APPLICANT: NAME: Val (el.)Irm � ZA; -L- FLCA (Check one) OCCUPANT: (if different) NAME: ADDRESS 12,5 -Pr-0Sp e i �� -1>-W4- ADDRESS: tt�Ine-kg�Ac,r ,y;I 22k07 - TELEPHONE: �GZ- 3g73 TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): 1-r�Ul"Cl U1C{ 6-A U- S. V&k I l So d D -Poe Roup 2 3'7 od LvA4'rSka-+e. SI Ike [JAoPetc,, I s loco -Fe -i W*h VII +ke- P,1, (A;1hern Y� a-�'ms�o�,�-', �y !�- Y1 ✓e - Magisterial District: j[0'dCk CA -e e k- 5. Property Identification No.: Y5 -A - ID 12. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the appeal 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: (Please list property Identification Number.) NAME Np Jac e,+ �ra rye � �u�+tie-�s G-�^2. c �-pec eoQ i . --I--Cn t C V - .,O G 1, O [ _� Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # Address Property ID # 5. The existing zoning of the property is: '9- Z 7. The existing use of the property is: O �, c e-5 -J6, 8. Adjoining Property: USE North Vc co„�-� East 1k-+OVVV U -L deo l South Vasa , West�cs ZONfNG -2- 9. Describe the decision being appealed. (Attach a copy of the written deeusion.) a e S 4-o . U U �lLl_"�v�a Eac� CL �e�S ca.n� C�Y�Ca r cafe c` �� ►vtesSa 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) ,See- 11. Additional comments, if any: AGREEMENT EN APPEAL # I (we), the undersigned, do hereby respectfully petition the Frederick County Board ofZoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions 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 hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. V�h�SIGNATURE OF APPLICA14T 4 (24 ID(- SIGNATU RtE OF 01VIN1E r (if other than applicant) BZA PUBLIC HEARING OF -OFFICE USE ONLY- - DATE - APPEAL OVERRULED APPEAL SUSTAINED File- OALand Use Applications\Application Fo ms\APPEAL Revised: 01/14/03 SIGNET➢: DAVE: DATE ACTION: BZA CHAIRMAN a t � F F IFJ r _ y �'c9 �I 4j I{ 1I { 1{ _11 March 31, 21006 TO: County of 1=rederFclti Inspecitic.ns Depar'cme � PROIVI:Robert lel. Carpenter,-7,�� s Ps esident/v!E0 RE: Request -oor Sign 'i iodification E� d € I.O. 50! 2700, Wincheste ; 'M 22604 f.hnini satilveOfPce 125 Prosperity Drive, Winchester, VA 22602 phone 540-662-34/3 / toll-free o00-999-5341 fax 540-069-6663 / unjrv.va11e-,fC.coxn An application is subrnifted to modify an existing sign at 125 Prosperity Drive, location in the Kernstown Business Park. The new sign will be of similar dimensions as the existing sign, however, 6t is our interni to illuminate the sign and we are regp. estir g a variance to pe -mit an electronic message board. Please refer to Exhibit 1 which is a rendition of the current sign erected in 2001. Exhibit 2 is ile engineered base for the sign which has been in place since 2001. Exhibit 3 is the proposed sl:etch of the new sign ift1hich will be placed on the existing base. We are advised by the sign contractor (\ Sign Place) that the neve sign ily.+ill adapt to the base we have installed. Size and FAlind sheer conditions are expected to be the same as tele current sign since the new sign square footage will not exceed that of the existing sign. The proposed sign will be constructed fifiitih the following criteria: 1 - 144" high x 96" wide x 18"' de p illuminated sign. l=aces are white aMf5c divided by H -bar retainers. Pole Mounted +1rl shirt of 18" 90". LED OPTION for second panel fronn top of sign... A split double face 7 x 64 matrix of red LED's supplied as two separate cabinets. 13" high x 5'6" long x 6" deep per face Character Size: 6" Lines of Text: 2 4 `a r.'.'•1� /"xYnjl;�ti'nT'w�r(l.➢�. Message Capability: Time and Temperature, Shor Messages with programmable time sei"ings. Controller: Windows Controller Power: 120 volts, 3 arops per face Warranty: 5 year Computer Requirements: the programming computer must be a non - networked computer running Windows 93/MENT/2000 or XP. The purpose of the sign modification is to provide better visibility for our company and tenants. The illuminated sign will assist the public in locating our offices an,,,' tenants during darkness. Several of our tenants have regular office hours into the evening and winter months pose a significant problem for them in aitracting the public to our site. The LED screen is intended as a method to issue messages periodically through the day. We anticipate messages may be changed a few times each day. It is important that we be able to communicate to the public and also to promote our tenants. 'J4'e are aware there are several LED message boards within the city of Winchester and we are aware of three in the county — the Sports Plex, the Red Cross and the Capon Valley Sank. It is important to a business such as ours, that we can post messages about our rates, our services and to offer similar services to our tenants. Other businesses that have these message centers have a distinct competitive advantage over our business if we are not able to offer similar current information. The LED message center will be placed in a location (second panel from the top) that will not interfere with passing motorists. The sign will not be directly in their line of vision. We expect the iIlessages to last for much more than the five seconds addressed in the code and would likely only change them a few times a day. It is important, however, that we have the ability to change messages to oromote our business and our tenants. Exhibit 4, a section from the County Code, seems to outline the necessary criteria of an electronic message board. It is our intent to comply with the spirit of this regulation:. We respectfully request approval of the modification as proposed. o I;irjnz Tnr. TFI 9AR-l' -117? P. 2 P. NZA I I EY 540 fi62-11717 I— `+VALLEY FAR M CREDITMBURLAIFAR ._ MONEY CONCEPTS H Alf f & ASSOCIATES REAL 96TATE pj'•EASE CPAWK ALL SPELLHIJO, LAYOUT, COLON,% DIFUEAlsivius A 1r;rTcJ? 9?VLFG Fl -N-1 Ar'47U.".1cly. ranmirm 09 VX -'2V EIGNA 19C. NALI uw_zrls OTC�MIAP= mr-WWAwn POP. 05/Ly/01 15: Z9 FA.1 154Ur'G57y3 VAI_LEy FARM GRED! T 125 PRO-SR'ERiTy° DRIVE INCH ESTER: VA 226,2 YAiN"1EH LEWIS 1005 PROJEC PROPOSED SIC �� 1 a• 6`.., �. (6)#5 "L" -TYPE �9 ®® CONC. FOOTING 16 RE -BARS 'x16 9• " CON (TARS) 16 BRICK VENEER 16"--� PEDESTAL (Ty 12 p i' R G I 12''lo[ #3 STIIRRUPS1 ® B" 0. C. L (Typ.) PROPOSED - SIGN (BY OTHERS) TS6"x6"x3/1 E 6'` - .._,_ TUBULAR STE COLUMN (Typ _. ,. 14"x14"x 1.. BASE PLATE rti�u Al_L Typ- (4) 3/4"0 J ANCHOR BOLI - - - ---------------- -- HEIGHT OF COLUMNS TO BE DETERMINED BY SIGN CONTRACTOR - -- _ -- ---------- ..... ................. ....... - .- ---------- ---- --------..-..-_A ........................ ----- ---------- -----• l6)#5 "L" -TYPE RE -BARS ----N (Ty P-) #3 STIRRUPS--,,, 8" O -C. (Typ ) 3'— 4" FINIISH GRADE 6` 1'-4" fFY _-..... ....................../ i .............. 16 2., :2" 16 2- 24" 1F J _ 4 10' -0"x3' -6"x16" CONCRETE FOOTING with #5 RE -BARS ® 8" O.C., E.W. 1 C)' 24" I 6" f It— ,3' ii PROPOSED SIGN: FOUNDATION DETAIL 1/2" CAP PL. WELDED TO COLUMN (Typ.) TS6"x6"x3/16" TUBULAR STEEL CD1 LJMN (Tvr)_1 (4) 3/4"0 ANCHOR BOLTS (Typ.) 14"x 14 "x 1 " BASE PLATE 16"a 16" CONC. PEDESTAL (Typ. 3.- 3' " 3' 'AINTER-LEWIS, R..L.C. Consulting Engineers DATE: 05-25-01 302 S. DF�"DUOCK STREET, SUITE 200 SCALE: 1/2"=l'-0'' WINCHESTER, VA 22601 (540) 662-5792 � PLATE: Sign -1 a _u P—L. PLC ProJart No.: 9903408 C / ptr) IM01i Home Finance Division Homy Vallev Farm Credit NE'WCenturNT2, .Y R A. -ILT Y' An -them 11-0- A U T Hl 0 R I Z LE t) A s q iq -v LED 1811 x 5 1/2'w/ 6" char. or other tenant T�� 40 63,Z� YVk&Lkk & -RhiL-�t 3, April 24, 2006 Board of Zoning Appeals County of Frederick 107 North Kent Street Winchester, VA 22601 Members of the Board of Zoning Appeals - P.O. Po; 27 0. '14;',2_'60: Admhnast,ati e O,fice 125 Prosperity D,:c, 22'"02 phone 540-662-3473 / ol! e (C9 MD 5341 iax 540-869-6563 /v. fc.com Recently a request was submitted to the Zoning Administrator for a modification to an existing sign on the property of Valley Farm Credit at 125 Prosperity Drive. The request was to permit the use of a LED (Light Emitting Diode) sign in conjunction with our plan to upgrade our sign to an illuminated sign for better visibility. The request to incorporate the LED sign was denied by the Zoning Administrator based on a County Ordinance that does not allow animated or flashing signs. I respectfully request the BZA to hear our case and to rule in favor of permitting us the use of an appropriate LED sign. As background, Valley Farm Credit is completing an expansion of our facility at 125 Prosperity Drive from a 16,000 square foot office structure to a 26,000 square foot office complex that will house several divisions of Valley Farm Credit and three prominent tenants. The request to improve our current signage to illuminated signs is to provide better visibility after dusk when some of our tenants are still utilizing the building and for general promotion of our organization and our tenants. Photo representations of our existing structures are contained in Attachment A-1. The matter of the LED has become an issue of providing current information for the general public about our services and those of our tenants. The use of LED's has increased in recent years with several commercial businesses operating similar signage in the City of Winchester. Current signs also exist in the County at two prominent locations. It is imperative the BZA understand the difference between our application and those signs that exist in other situations. First and foremost, it is the intent of Valley Farm Credit to utilize this sign in a prudent and appropriate manner. Our goal is to allow static messages to be posted with changes occurring every few minutes. We do not envision using flashing symbols, scrolling or animation. A few local signs use animated sequences to change the message as is the case with the Best Western sign J_r-a�� i --' �`'r i�:-i. --__- (pictured in Attachment A — 2) and the Sports Plex sign along I — 81. Other signs such as the CVS Pharmacy and the American Red Cross (pictured in A — 2) use static messages that change over a period of time, but without the use of flashing symbols or animation. It is the latter example that our organization wishes to use as its model for communicating information to the public. A second consideration is the placement of the LED. it is intended the LED will be placed near the top of the sign (in the second row position from the top as depicted in the original application). This is an important issue because this position (more like the CVS sign) places the message well above the normal line of sight of passing motorists. Our belief is this will minimize the risk to drivers that the County Ordinance considers as a potential harmful effect from LEDs. Lastly, the matter of business competition will become more evident as the City of Winchester allows further signage to be adopted. The very recent addition of the Best Western sign indicates more businesses will have this mode of communication with the public. it is conceivable that our competition (local banks and mortgage companies) will also soon be using these signs within the city. The public does not recognize the county/city boundary in its determination of where it conducts its business. If the County continues to deny reasonable requests for electronic signage, then a distinct competitive disadvantage is cast upon any business established in the County. It is our intent to construct a sign that is in good taste and does not interfere with the spirit of the intentions of the County to protect the driving public. It is also our intent to remain a good corporate citizen of the County, but it is important that we have some of the same opportunities afforded to other local businesses in the city. I once again respectfully request the BZA to reconsider the decision of the Zoning Administrator and permit our application to proceed in full. Sig cerely, Robert N. Carpenter President/CEO i NukintA 04.10-1 F American o c Red Cross. WINCHESTER FREDERICK COUNTY low] i mmfln �l l.A�iE' -tt -1 sa�.z-•r 4d APPEAL APPLICATION #08-06 �tieK , Cao w �a AROOAS, INC. Staff Deport for the Board of Zoning Appeals w Prepared: May 2, 2005 Staff Contact: Mark R. Cheran, Zoning Administrator 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 miry also 5e useful to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING RATE: May 16, 2006 - Pending LOCATION: The property is located at the intersection of Rest Church Road (Route 669) and Martinsburg Pike (Route 11 North). MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUPJIBER(S): 34-A-4 PROPER'T'Y ZONING & USE: Zone: B2 (General Business) District Land Use: Vacant ADJOINING PROPERTY ZONING &L USE: North: M1 (Light Industrial) District Land Use: Vacant East: Ml (Light Industrial) District Land Use: Vacant South: B2 (General Business) District Land Use: Vacant West: B2 (General Business) District Land Use: Commercial APPEAL: To appeal the decision of the Zoning Administrator pertaining to the proffered uses on this property. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator regarding the proffered uses on this property. Appeal Application #08-06, Arogas, Inc. 2, 2005 May Page 2 STAFF COMMENTS: A site development plan was received by the Frederick County Planning Department on April 13, 2006. Staff was unable to process the site plan due to a discrepancy between the proposed use of the property and the proffers associated with the property. The project site lay -out of this property would indicate that the use of this property would be over -the -road truck fueling. This proposed use is not in conformance with the assigned proffers for this property. Staff returned the application fee and site plan to the applicant's engineer. The applicant is appealing the decision of the Frederick County Zoning Administrator regarding proffers assigned to Rezoning #02-04, which was approved by The Frederick County Board of Supervisors on April 27, 2004. This land use action rezoned the property from RA (Rural Areas) to B-2 (Business General) Zoning District and M-1 (Industrial Light) Zoning District. The Frederick County Zoning Ordinance, Section 165-13 (E) states: proffers assigned with any rezoning shall be enforced by the Zoning Administrator. It is important to note that proffers are conditions that a property owner offers to be placed on the owner's property when the owner asks the County to rezone the property. When a rezoning is approved with proffers, the proffers provide restrictions on the property beyond the regulations in the zoning district in which the property is located. Therefore, in this case, although the property is located in the B-2 zoning district, and although the provisions of the B-2 zoning district permit truck stops and the sale of diesel fuel for over -the -road carriers, the approved proffers on the property have removed those uses as permitted uses on this property. The applicant is appealing the decision of the Zoning Administrator in the enforcement of proffers of this rezoning. These include the following: 1. The Frederick County Zoning Ordinance allows Standard Industry Code (SIC) 55 in its B-2 Zoning District. A subtitle of SIC 55 is SIC 5541which allows motor fuel to all types of vehicles and truck stops. Staff Response: Proffers for Rezoning #02-04 do not allow the retail or wholesale of diesel fuel for over -the -road truck carriers. The use of SIC 5541 is a moot point per the proffers assigned to this rezoning. 2. The Frederick County Code does not define "over -the -road truck carriers." Staff Response: The Frederick County Zoning Ordinance, Section 165-156, defines tractor - trailer truck for hauling freight. A tractor -trailer by this definition is used for any over -the -road truck for hauling and has the same meaning. This definition is further defined in the Merriam - Webster Dictionary. Appeal Application #08-06, Arogas, Inc. May 2, 2005 Page 3 3. The proffer — "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 or the commercial or industrial zones." -is: a. Void for vagueness b. Unconstitutionally interferes with interstate commerce c. Arbitrary and capricious d. Procedurally defective Staff Response: The proffers clearly state that diesel fuel retail or wholesale for over -the - road truck carriers shall not be allowed, and there is no vagueness in the way the proffer is enforced and referenced. Interstate commerce has no bearing on the decision of the Zoning Administrator and is not unconstitutional due to the assigned proffers on this property. The applicant should have read and understood the proffers prior to submitting a site plan for review. 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. The decision of the Zoning Administrator was not arbitrary or capricious in the enforcement of the proffers and the procedure on returning the site plan. The site plan could not be reviewed by the staff due to the site lay -out. The site plan clearly shows pavement details for heavy truck traffic use, and clearly shows fuel islands and parking spaces to accommodate over -the -road trucks. This site plan, if approved by staff, would be a violation of the proffers assigned through the approved rezoning. The decision of the Zoning Administrator with regards to the enforcement and interpretation of the proffers assigned with Rezoning #02-04 is correct and not arbitrary and capricious as the applicant contends. The applicant should have read and understood the proffers before investing the time and money to develop this property. Staff was in no position to review and approve the site plan as presented and, therefore, returned the site application to the applicant. The only issue this Board must address to affirm or overrule the Zoning Administrator's decision in not reviewing the applicant's site plan pertains to the proffers assigned to this property. Any changes to these proffer uses are beyond the scope of the Board of Zoning Appeals. The Frederick County Board of Supervisors is the only body that can approve any changes to the uses or proffers assigned to this property. STAFF CONCLUSIONS FOR THE MAY 16, 2006 MEETING: Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance regarding the proffered uses on this property and was correct in not reviewing the applicant's site plan. �, �rtn- 4,4 NO "-'dO,W 4.41, P, Cf) CM 0 Ct CID 00 +*+00 sP9?4 a i � 0 < 2 B n'bN1t �y s Mp dills �� O) N 3 Cin NJypN'1S/ppN � � a - � b g13a'ls3b ,. I \�a z m o»'s3ua3aoaal ` �, ds d Ic C Z-VJ/ytby b d[1 JN�NNyW, / U U) M 0)- 2 )—O Q CO Q 00 M � O l � i r r Q C R C R'z o a o � � E - 3° = a j ba31 9WA,pp N .,- — a E bLr"3H Q 4"4' O'z' Civ 4•T o> sa` S N33bo .tr `P.. GHAaIF'`' B s � �t�r, •':-"��'` � � '.rte � /'/ � � � � !� _ [ \`' w\__. AM cB 2 NT c¢o Q OD 0 ! / L J E u' E 0 I{d,3y y Q E tip Url1s ry�K i a� c f S j p E pls/pp I w V E Js_['dOYL�HJIN` Il� [t ib y 3 # 4, •\ U 1 ! r Mz =2<` _ , o nd NJal a � d 5.rn . cz pNrNNyK, 4srxryde�; 1 ! • 5.73,' / x' :. COUNTY of FR E-4 DE- : C K Department of Manning and Development 540/665-5651 FAX: 540!665-6395 April 19, 2006 Triad Engineering, Inc. Attn: Mr. Dennie Dunlap 200 Aviation Drive Winchester, VA 22602 RE: AL ogas Facility Site Development Plan Whitehall Commerce !Center Dear Mr. Dunlap: The Frederick County Planning Department received a transmittal letter from your firm on April 13, 2006 which included a site plan application fee in the amount of $2,300.00 and two copies of a site development plan for the referenced project. Our department is unable to process this application due to a discrepancy between the proposed use of this property and the property's current zoning designation and associated proffers. The proposed site development plan identifies the proposed use as commercial. Upon further review of the use on site plan Drawing Number C-4, it is clear that the commercial use is, in fact. a gasoline service station (SIC 5541) with fuel islands and parking spaces appropriately sized to accommodate over -the -road trucks. Additionally, the commercial entrance detail on Drawing Number C-14, and the pavement details on Drawing Number C-13, are designed to accommodate heavy truck traffic. This site layout is very similar to that submitted by the developer — Arogas, Inc. with Rezoning #07-05. In fact, with Rezoning #07-05, provisions were made to accommodate six truck diesel fuel islands; the submitted site development plan would accommodate eight fuel islands which are dimensionally consistent to accommodate over -the -road trucks. As stated in the proffered conditions accepted as part of the rezoning application for the subject property, which has been included on the site development plan's coversheet, "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 either in the commercial or industrial zones." The submitted site plan clearly accommodates truck diesel fuel islands and associated truck parking, consistent with Arogas, Inc.'s rezoning application. 107 Nor h Kent Street, quite 202 ® Winchester, Virgizria 22601-5000 Mr. Dennie Dunlap RE: Arogas Facility Site Development Plan April 19, 2006 Page 2 The development of this parcel as proposed by your site plan would necessitate a proffer amendment to enable the sale of diesel fuel for over -the -road truck carriers. Please find attached the information that was provided to our department on April 13, 2006 under your transmittal letter. This infornation is being returned to your attention as not approvable based on our determination that the proposed use is a prohibited use on this property. You may have the right to appeal this site development plan submittal rejection within thirty (30) days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable, if it is not appealed within thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165-155A (1), of the Frederick County Zoning Ordinance. This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved parry, any other information you may want to submit, and a $300.00 filing fee. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. Sincerely, Mark R. Cheran` Zoning Administrator Attachments: Site Development Plan review fee, application, copies of plan cc: T. Pat Manning, President, Arogas, Inc. MRC/bad REZONING KEQUEST PROFFER, -Property Identification Nuimber 34-A-2 and 34-A-4 St€anex,� afl Magisterial District Frederick County, Virginia voempeles Properly Preliminary Matters Pursuant to Section 15.1 - 491.1 et. sea., of the code of Virginia, 1950, as amended, and the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the undersigned applicant hereby proffers that in the event the Board of Supervisors of Frederick County, Virginia, shall approve Rezoning Application #Co --off for the rezoning of 10 1. 9189 acres from Rural Area (RA) Zoning District to Light Industrial (M-1) and 10.3492 acres from Rural Areas (RA) to Business General (B-2) development of the subject property shall be done in conformity with the terms and conditions set forth herein, except to the extent that such terms and conditions may be subsequently amended or revised by the applicant and such be approved by the Frederick County Board of Supervisors in accordance with Virginia law. Should this petition for rezoning not be approved by the Board of Supervisors then these proffers shall be deemed withdrawn and of no effect whatsoever. These proffers shall be binding upon the applicant and their legal successor or assigns. General Development Plan The development of the subject property, and the submission of any Master Development Plan shall be in conformance with all pertinent County regulations and shill be in substantial conformity with the Generalized Development Plan (GIMP), dated March 8, 2004, which is attached hereto and incorporated herein by reference. Street Improvements The Applicant shall design and construct an industrial access road including entrance improvements on U.S. Route 11 consistent with the County's adopted North East Land Use Plan for the area, and according to uniform standards established by the Virginia Department of Transportation (VDOT), and as may be provided in these proffers as illustrated on the Generalized Development Plan which is attached hereto and incorporated herein by reference. The road improvements shall include the following: a. Along the property frontage on U.S. Route 11, the applicant shall construct curb and gutter and storm sewer with a 12' or wider lane widening consistent with VDOT commercial entrance standards. The applicant shall dedicate an additional 14' of right of way along property frontage with U.S. Route 11. Two 36' or larger commercial entrances shall be installed in approved locations, one south and one north of the industrial access road intersection. (See 1 on the GI)P). The southern commercial entrance shall be right in/out in accordance with VDOT requirements - Page 1 of 5 Revision 4/27/04 Rezoning Request Proffer Property Identification Number 34-A-2 and 34-A4 Stonewall Magisterial district b. The applicant shall construct an industrial access road to VDOT standards with centerline intersection equal to the centerline intersection of Rest Church Road and U. S. Route 11. The industrial access shall connect with Woodbine Road. (See 2 on the GDP). The configuration and location of this collector road addition to the road system shall be adjusted to conform with actual proposed use of the site subject to Frederick County and VDOT approval at the site plan stage of development. The right of way width for this road shall be 80'. C. The applicant shall modify the VDOT proposed stoplight from 3 way to 4 way intersection_ (See 3 on the GDP). d. The applicant shall enter into a signalization agreement involving partial cost sharing for the Woodbine Road/Route 11 intersection_ Establishment of the signalization agreement will correspond with development of the industrial (M1) portion of the site, and will therefore occur prior to approval of the first site plan for Ml development. The timing for ultimate signalization of the intersection will be determined by VDOT. e. The applicant agrees to provide a TIA for each industrial (M-1) use at the time of site plan. Additional street improvements suggested by the T IA will be negotiated with VDOT as a part of the land use permit. Landscape Design Features The development of the subject property, and the submission of any Master Development Plan shall include the following landscape design features provided in these proffers and as illustrated on the Generalized Development Plan dated March 8, 2004 which is attached hereto and incorporated herein by reference: A twenty foot (20') landscaped green strip along the US Route 11 frontage portion of the site. (See 5 on the GDP). Features within the landscape green strip include a low berm (30" or less) with suitable low profile landscaping that will not conflict with sight distance at entrances. On Site Development The applicant expects the industrial zoned portion of the site to develop with a minimum of 1 and maximum of 8 end users depending on marketing conditions at the time of sale. Covenants and restrictions of record shall control the standards of construction to include: a. Fagade materials of buildings facing street to be concrete masonry (CMU) brick, architectural block, dry vit or other simulated stucco, real or simulated wood or glass. Page 2 of 5 Revision 4/27/04 b. All buildings within the development on the property shall be constructed using compatible architectural style and materials, and signage for such buildings shall be of a similar style and materials. c. All buildings within the property shall be developed as a cohesive entity, ensuring that building placement, architectural treatment, parking lot lighting, landscaping, trash disposal, vehicular and pedestrian circulation and other development elements work together functionally and aesthetically. Additional Site Proffers In addition to the proffers above, the applicant shall implement the following design standards in construction on this site. a. All utilities to be underground. b_ 2" caliper street trees on 50' centers along both sides of industrial access road. c. Stormwater management pond facilities shall be lined with impervious liner materials to preclude groundwater impacts. d. All commercial and industrial structures shall have a geotechnical analysis and study prepared prior to site plan approval. u e. Any use involving the retail or wholesale sale of diesel fuel for over the road to carriers shall not be conducted or performed on this site either in the commercial industrial zones. Monetary Contribution to Offset Impact of Develop-ment The undersigned, who owns the above described property hereby voluntarily proffers that if the Board of Supervisors for the County of Frederick, Virginia approves the rezoning for the 112.2681 acre site lying on the east side of U.S. Route 11 in the Stonewall Magisterial District of Frederick County, Virginia from RA to M-1 and B-2, the undersigned will pay to Frederick County for the Clearbrook Fire and Rescue Company the sum of $15,000.00, the Sheriff s Office the sum of $3,000.00 and the Administration Building the sum of $2,000.00 for a total payment of $20,000.00, at the time the first building permit is issued. The conditions proffered above shall be binding upon the heirs, executors, administrators, assigns and successors in interest of the Applicant and Owner. In the event the Frederick County Board of Supervisors grant said rezoning and accepts these conditions, the proffered conditions shall apply to the land rezoned in addition to other requirements set forth in the Frederick County Code. Page 3 of 5 Revision 4/27/04 Respectfully sub:ritted, PROPERTY DW1VF By: By: Geo ge �MSempeles Carol T. Sempeles Date: �'� -/ Date: -!5J3/o/ STATE OF VIRGIMA, AT LARGE FREDERICK COUNTY, To -wit: CO- The CThe foregoing instrument was acknowledged before me thisday of CA , 2004, by G e0c m , �4- CQ DO 7D My commission expires Notary Public Page 4 of 5 Revision 4/27/04 °" - 3 noeorvo3 xda„u NHId aIS/1d3ONOO ,mo- 3I53N]NIM d lbaniO3ilHOaH VINI�OUTA'AlNnoo NoIH3a3H� h Q mau NaFae '+u�siwe� 4A 3vea iruww ac ''ONI 'SV!DOHV a z5 - J gg Al fi3,rs opo h4o- r. a 3 d� oq go° o P , 6 } ci i�ca ,. u I T•`� of e 1 <4 ffi� � U �a dy9 I `I o , Y a° 6 6NM 2 � •i: -,i 4 `., APPLICATION FOR APPEAL DI THE COUNTY OF FREDERICK, VIRGINIA -OFFICE FTSE oNLY- Appeal Application # Submittal Deadline Submittal Date For the meeting of Fee Paid' yes initials: T�irl,USTBET"I-P):,-'.DORr4lLLEDO-UTINP,iK-F'L-Lq,ASE--F'-R-114T 1. The applicant is the owner -- other ) . (Check one) 2. APPLICANT: N� .-i r.,k,,t�,- A ,- 4-'Aqgy- A"ME: t7: \\j cc ex -L ADDRESS Vr!�- lZU'A OCCUPANT: (if different) NAME: ADDRESS: TELEPHONE: S7qo ( I Gg TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): 44ro;'^ os U -N -A io V- 04- 4. Magisterial District: Z77;erit'W'0;!( '3 q 5. Property Identification No.: '00-s- I'l 5 — L 0- 1"'-" C'. The eXisting Zoning of the properly is: ,j> 7. The existing use of the property is: V' A 8. Adjoining Property: 9. Describe the decision being appealed. (attach a copy of the written decisli(M.) 1A& r- C - C V' t; Q�.n ` ..mac: �n v� CkCkM'% v& 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) 11. Additional comments, if any: XO>, 1S -k %y\c)uXc—� �a \;rA. !, '�•►D�� je-c&tri qA., J- o \A c-kOLvYV%O-rc'v- S 414 4N ,-C USE ZONING North ircA—A+ ?A I East IV,, x South West qo-s 5kz=,tom \' z 9. Describe the decision being appealed. (attach a copy of the written decisli(M.) 1A& r- C - C V' t; Q�.n ` ..mac: �n v� CkCkM'% v& 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) 11. Additional comments, if any: XO>, 1S -k %y\c)uXc—� �a \;rA. !, '�•►D�� je-c&tri qA., J- o \A c-kOLvYV%O-rc'v- S 414 4N ,-C 12. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the appeal is being sought, including properties at the sides, rear, and in front of (across street from) the subject property. 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Z w— Z m w Uj w Z a w :ow F w_> W o<a W - F J Z W J ❑} F �I N (� Z Z Z❑ CL p -j J J a Z U F w O w.w r-: W� J Q Q Q W Q= o w O1= Q o a w w Q g ��LLU)(DU) JzEww0LL�YU2LLW 2cn��cn�cnUY�(ntLS��o I ❑JJUJ��U C� 4 i E Q m U L rM06)M�ti�(DM�LOMd-(DI`000)OIrN(MIV M N N N N r N r- r N r N r r r N N N. N �QmrN-, O W CD © N N r N M� 0 0 N r r r M Qaaaaaaaaaaaa-aaaaaaaaaaaaaaaa i, aaaaaaaaaaaaa aaaaaaaaaaaaaa Qaa Ia.V<� N N N N N N N N d' N M N M M M M co M co M co M M MMM ('`) (`� M M M M M I(`� M M ('� MMM M M M Cl) M M M M MiM (`') co co MIM MIMIMjM MIM:M,M;M V' V M M M M M co (`') d' !") AGREEMENT APPEAL # I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions 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 hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF APPLIC SIGNATURE OF UiVi7I\TETiR (if other than applicant) -OEIF CE USE 01� LY- BZA PUBLIC HEARING OF� / t� (_ ACTION: - DATt- APPEAL OVERRULED APPEAL SUSTAINED File: 01Land Use Applications\Application Foms\APPEAL Revised: 01/14/03 SIGNER: DATE: DATE �i ' Z I I)ATE `t _ 2 6 BZA CHAIRMAN Special Limited Pawer of Attorney County of Frederick, Virginia Planning Office, Caunty of Frederick, Virginia, 107 Forth Kent Street, Winchester, Virginia 22601 Rhone 540-665-5651 Facsimile 540-665-6395 Know All Men By These Presents: That I (We) (Name) `stn - (Phone) 9-q D (Address) 331 V the owner(s) of all those tracts or parcels of land ("Property") conveyed to me (us), by deed recorded in the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by Instrument No. cn Page , and is described as Parcel: Lot: 1*_ Block: 41 Section: Subdivision: JJ (fo +N1c'hP.ace Cis do hereby make, constitute and appoint: (Name) ' Jv►..►� °�t �c 23� z ryr� 4 sz ` (Phone) (Address) '0�= Z T3 7i f.? ✓i t� ,r' S� - ' � 'L.7Z- Lg,0 To act as my true and lawful attorney-in-fact for and in my (our) name, place and stead with full power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: ❑ Rezoning (Inciudin, g proffers) ❑ Ca ndational Use Permits ❑ Master Development flan (P~el2.mznary acrd Final) ❑ Subdivision ❑ Site flan My attorney-in-fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. l In witness thereof, I (we) have hereto set my (our) hand and seal this_'�,� day of (-�`l 6` , 200, Signature(s) State of Virginia, City/County of.. _( �u c (< , , To -wit: a NotaryPublic in and for the jurisdiction aforesaid, certify that the person(s) who s4ined to the foregoing instrument and who is (are) known to me, personally appeared before me and has acknowledged the same before me in the jurisdiction aforesaid thisI 'rday oft ` , 200 My Commission Expires: Notary JNblic PIN 34—A-2 rrn I GEORGE M. SEMPELES & CAROL T SEMPELES EDGE OF CO.44' ONC. GINAL 139' ' JSTED Ra 9 °° 0 0 � FUELING 00 m CANOPY m 'v I oa° ® ABOVE.UEL 1L O 8 I A K AREA 0 o 0 o F _ o o ^ o o N 38' O.C.— (TYP.) EDGE OF CONC. DETAIL7A�� SCALE: 1"=20' uy \ �RECTIONAL ________ ________________ N22*58'44"E 171.42' PLANTING STRIP ID INFORMATIONAL CG -6 00 lot TANK - SEE FUELING. . �RECTIONAL 04/28/2006 16:37 15407226169 MARK E STIVERS ESQ ATTORNEY AT LAW POST OFFICE BOAC 1737 WIN CHESTER, IRGIA U ".604 Telephone 540-722-6168 Facsimile 540-722-6169 ADMITTED TO THE BAR OF VIRGINIA AND TO THE BAR OF PENNSYLVANIA April 28, 2006 Mark R. Cheran, Zoning Administrator. Department of Planning and Development 107 North Kent Street, Suite 202 Winchester, Virginia 22601 P'acsimi,le 665-6395 Re: Whitehall Commerce Center Dear Marl.: PAGE 01/01 APR 2 8 20106 1160 JORDAN SPRINGS ROAD STEPHENSON, VIRGINIA 22656 This is a follow-up to our discussion last week about the above referenced matter. As I expressed at the time, my client is simply interested in determining what is necessary to receive site plan approval, specifically what modifications you deem necessary. While I believe that a face to face; meeting would be most productive, after careful review of your letter dated April 19, 2006, I posit the following revisions to the site plan in response thereto for your consideration and in an effort to reach a prompt and agreeable resolution: o reductions in the entrances to 36' o elimination of oversize parking o reductions in concrete surface areas near diesel islands o modification of diesel island designs I respectfully request your prompt consideration of this matter, and am happy to meet with you at your office to discuss the same. I would like to explore a possible resolution to eliminate the necessity of, a RZA hearing or litigation. Please let me know your thoughts on this matter. Thank you. Sincerely, Mark E. Stivers l:dl cc: Mr. Manning Attachment: #10. Appellant, Arogas, Inc. is the developer of the proposed it p an dated develop 0 this -0 e and is an aggrieved party that has invested substantial time anmoney Y in accordance with the existing B-2 zoning. The stated decision on appeal includes but is not limited to the following assertions: 1) is unable to process this application due to a discrepancy 11 Our department between the proposed use of this property and the property's current zoing designation and associated proffers." 2) "... that the proposed use is a prohibited use on this property." Date of decision: April 19, 2000 Reasons that appellant disagrees with the stated decision include but are not limited to the following: o Article X 165.82 B. of the Zoning Code of the County of Frederick specifically recognizes SIC 55. S.I.C. 5541 is therefore a permitted use in B-2. The subject site was f mo o °� 04/o all types of4 for 1s use. vehiclesS.lC. 5541 allows the sale of all types o S.I.C. 5541 also specifically allows "truck stop" as a permitted use. o The application is not inconsistent with the B2 zoning or proffers The dimensions of fuel islands, parking spaces, and commercial entrances are irrelevant to the use. * The similarity of site layout to rezoning #07-05 is irrelevant to the use. Frederick County Zoning Code does not define "over -the -road truck carriers," (Frederick Code does define tractor -trailer truck, tractor truck, tractor truck trailer, and truck.) * The decision is arbitrary and capricious. 0 There are many types of large vehicles that will access the proposed site. a The referenced proffer -- "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." — is: - void for vagueness - unconstitutionally interferes with interstate commerce - arbitrary and capricious - procedurally defective