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BZA 11-21-06 Meeting MinutesMEETING MINUTES t 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, November 21, 2006. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro District; Lennie Mather, Red Bud District; Kevin Scott, Shawnee District; and Robert W. Wells, Member -At- Large. ABSENT: Dudley Rinker, Back Creek District. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Zoning Inspector; and Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. On a motion by Mr. Shenk and seconded by Mr. Scott, the minutes for the October 17, 2006 meeting were unanimously approved as presented. 0 Chairman Catlett asked Mr. Cheran the cut -off date for the next meeting. Mr. Cheran replied that today, November 21, 2006, is the cut -off date, and there are no new applications pending. PUBLIC HEARING Variance Request #24 -06 of Gary Baylis for a 23.6 foot front yard variance, resulting in a front yard setback of 36.4 feet. This property is located on Sulphur Springs Road (Route 655) near Opequon Creek, and is identified with Property Identification Number 65 -A -187 in the Shawnee Magisterial District. ACTION— VARIANCE TABLED BY APPLICANT Ms. Krempa gave the staff report. The property setback lines for this property at the time of the adoption of the Frederick County Zoning Ordinance were 35 feet front, 25 feet rear and 15 feet both sides. In 1989, when Frederick County amended its zoning ordinance to change rural zoning classifications to the current RA (Rural Areas) Zoning District, the setbacks changed to 60 feet front, 50 feet rear and 50 feet both sides. Ms. Krempa continued that the Code of Virginia, Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that a) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the me vicinity; and c) that the authorization of such variance will not be of substantial detriment to adjacentproperty, and that the character of the district will not be changed by the granting of the variance. Minute Book Page 1420 Frederick County Board of Zoning Appeals Minutes of November 21, 2006 The applicant is requesting a variance of 23.6 feet for his front yard. Should this variance be granted,Oe building setbacks would change to 36.4 feet front, and remain 50 feet on the rear and 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 could be justified. Ms. Krempa stated that staff would like to point out that the Director of Public Works, Mr. Strawsnyder, has provided comments on the suitability of this site, which are included with the agenda. If the variance is granted, Mr. Strawsnyder will require a detailed flood plain analysis due to the location of a flood zone "A" on the property which is derived from the FEMA maps. Mr. Strawsnyder also expressed concern regarding the drainfield capabilities on the site, encroachment of the house location on a powerline easement and the proximity of this property to the landfill's wastewater treatment facility. Based on the concerns from the Director of Public Works, it may be appropriate for the Board to postpone a decision on this variance pending the outcome of a flood plain analysis. Mr. Gary Baylis approached the podium. Mr. Baylis stated that he would like to request a postponement until the January 2007 meeting. Chairman Catlett asked if the reason for the postponement request is to have the study done for Mr. Strawsnyder. Mr. Baylis stated that it's to look into that possibility. Mr. Baylis questioned why Mr. Strawsnyder has the authority to request that, he's just a neighbor to Mr. Baylis's property. Mr. Baylis asked if the neighbors across the street could request the same thing. Mr. Cheran replied that any building permit, if the property is near a flood zone the Zoning ldministrator cannot sign the permit and an engineered flood study would have to occur. The rest of Mr. Strawsnyder's concerns have some bearing with the pylon location and that's something that's done through easements. The flood plain is the real issue here. The point being, if we can't issue a building permit, approving the variance would not give Mr. Baylis the right to build because he can't build in a flood zone or flood way. Mr. Baylis stated that he still doesn't know how Mr. Strawsnyder is able to require that. Mr. Cheran explained again. There was discussion between Mr. Baylis, Board members and Mr. Cheran whether the property is in the flood zone, the survey, FEMA maps, and Mr. Strawsnyder's authority to require this. Chairman Catlett stated that if Mr. Baylis would like for this to be postponed, perhaps Mr. Cheran and his department could answer more of Mr. Baylis's questions on an individual basis. Mr. Baylis agreed to this. Mr. Perry made a motion to postpone Variance #24 -06 until the January 2007 meeting. Mr. Shenk seconded the motion and it passed unanimously. PUBLIC HEARING Variance Request #25 -06 of Brian Foor for a 2.8 foot left side yard variance, resulting in a left side setback of 47.2 feet. This property is located at 2880 Indian Hollow Road (Route 679) and is identified with Property Identification Number 40 -A -24 in the Gainesboro Magisterial District. ACTION — VARIANCE APPROVED Minute Book Page 1421 Frederick County Board of Zoning Appeals Minutes of November 21, 2006 0 Ms. Krempa gave the staff report. The property setback lines for the property at the time of adoption of Frederick County Zoning Ordinance were 35 feet front, 25 feet rear and 15 feet sides. In 1989, when Frederick County amended its zoning ordinance to change rural classifications to the current RA (Rural Areas) zoning district, the current setbacks changed to 60 feet front, 50 feet rear and 50 feet both sides. Ms. Krempa continued that the Code of Virginia, Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that a) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. The applicant is requesting a variance of 2.8 feet on the left side yard to account for the structure on the property which was built over the building restriction line. Should this variance be granted, the building setbacks would remain 60 feet front, 50 feet on the right, change to 47.2 feet on the left and remain 50 feet rear. The setbacks for this dwelling as indicated on Building Permit #767 of 2006, which is included with the agenda, were 160 feet off the front, 60 feet off the right, 60 feet off the left and 200 feet off the rear. Section 165 -23(H) of the Frederick County Zoning Ordinance requires survey standards to establish the location of primary structures only if those structures are located five feet or less from the minimum setback requirement of the zoning district in which the property is located. Because the applicant proposed a left side setback which was more than five feet over the minimum requirement, the Planning Department did not require a setback survey for this site. The applicant did build the structure closer to the property line than was 0 - originally indicated on the building permit, and in doing so, built the structure over the line by 2.8 feet. This application for a variance may not meet the requirements as set forth by the Code of Virginia, Section 15.2- 2309(2) or the Frederick County Zoning Ordinance. The violation to the setback requirement of the RA zoning district is self - inflicted and as such, may not produce an undue hardship. Mr. Brian Foor approached the podium and identified himself as the property owner. Mr. Foor stated that the builder, in setting the house, was supposed to stay within the 50 feet. In trying to set the house, corresponding with the other houses around them parallel to the street, is where they ran into a problem. Mr. Foor has signatures from his neighbors as well as other community folk in favor of this variance. Mr. Foor took a house that was an eyesore for the district and made a favorable house for the community. Ms. Mather asked Mr. Foor if he removed an existing house and Mr. Foor responded yes, he did. She asked who the builder was and Mr. Foor stated Wampler Homes was. Mr. Foor stated Wampler Homes brought in a modular home and set it on a foundation that was set up by them. Wampler asked Mr. Foor where he wanted the house located; he told them the general location and assumed they would do the necessary measurements in setting the house properly. Mr. Perry stated he couldn't understand why Wampler would ask Mr. Foor where he wanted the house instead of going by the building permit. Ms. Mather asked Mr. Foor if he had been allowed to close and move into the house. Mr. Foor stated he 4s an Occupancy Permit, but he has not been able to close on any kind of mortgage. This error was found er doing a survey to satisfy the title company. The Foors are living in the home. Minute Book Page 1422 Frederick County Board of Zoning Appeals Minutes of November 21, 2006 0 Mr. Perry asked if the builder is aware he put the house in the wrong place. Mr. Foor stated that Wampler is aware but he's not taking any fault to it or liability. He's basically saying Mr. Foor told him where to put the house. Mr. Scott stated the Building Permit clearly showed Wampler where the setbacks were. Mr. Foor stated they tried to get a boundary line adjustment which failed because the neighbor is concerned that doing a boundary line adjustment will affect him selling his home next year. Mr. Shenk stated he's a little bit familiar with the property and it looks much better now than prior to his purchasing it. Ms. Mather asked Mr. Cheran if there's any way the County can hold Wampler Homes responsible. Mr. Cheran stated no, it's a civil issue. And ultimately it falls back on the owner. Chairman Catlett asked if anyone is present who would like to speak in favor of this variance. Mr. Allen Henderson of Integrity Home Mortgage, Ms. Madelyn Largent and Mr. Jim Plank, adjoiners, support this variance. Chairman Catlett asked if anyone opposed would like to speak and no one came forward. The public hearing portion was closed. Discussion Mr. Shenk made a motion to approve Variance # 25 -06. Mr. Scott seconded the motion and it passed by a majority vote. 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. Respectfully submitted, Theresa B. CatldWt, Chairman Bev Dellinger, Secretary Minute Book Page 1423 Frederick County Board of Zoning Appeals Minutes of November 21, 2006