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BZA 10-17-06 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia. on, October 17, 2006. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Dudley Rinker, Back Creek District; Dwight Shenk, Gainesboro District; Lennie Mather, Red Bud District_ and Kevin Scott, Shawnee District_ ABSENT: Robert W. Wells, Member -At- Large. 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 August 15, 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. October 20. 2006, is the cut -off date. PUBLIC HEARING Variance Request #18 -06 of Z. L. Metz Contracting, L.L.C., for a 35 foot side yard variance on both sides. This property is located on the right side of East Parkins Mill Road (Route 644), approximately 1,260 feet from the intersection of Route 50 East and East Parkins Mill Road, and is identified with Property Identification Number 77 -A -51 in the Shawnee Magisterial District. ACTION — VARIANCE APPROVED WITH CONDITION Chairman Catlett stated that she will recuse herself of this item and she turned this portion of the meeting over to Vice Chairman Perry. Ms. Krempa gave the staff report. The property setback lines for this property at the time of adoption of the Frederick County Zoning Ordinance were 35 feet front, 25 feet rear and 15 feet both sides. In 1989, Frederick County amended its zoning ordinance to change rural zoning classifications to the current RA Rural Areas) Zoning District. The current setbacks for this property are 60 feet front, 50 feet rear and 50 feet both sides. Ms. Krempa continued that the Code of Virginia, Section 15.2- 2 states that no variance shall be uthori-zed by the Board unless it finds that a) strict application of the Ordinance would produce an undue Minute Book Page 1407 Frederick County Board of Zoning Appeals Minutes of October 17, 2006 Wrdship; 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 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 35 feet for both side yards. Should this variance be granted, the building setbacks would remain 60 feet front, 50 feet rear and change to 15 feet on both sides. This variance was before the Board in April of 2006 and was tabled due to lack of the submittal of a house placement survey. The application was then withdrawn by the applicant and has been re- submitted with a house placement survey. 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. At this time. Mr. Shenk stated that he must also recuse himself from this item due to conflict of interest. Vice Chairman Perry asked if anyone is present who would like to speak in favor of this variance. Mr. David Lellock of Urban Engineering identified himself and asked if there are any questions. Ms. Mather asked why the house was situated where it was and not farther back on the property where a variance wouldn't be needed. Mr. Lellock stated that there is a drainfield at the rear of the property that's already been approved. Also, the topo in the rear of the property would require additional construction costs and all the other uildings in this area are up close to the road. Ms. Mather asked if the shown, existing septic tank is being used by anyone. Mr. Lellock stated that it is currently the permitted septic tank facility. Vice Chairman Perry asked, if the variance is granted, how close will that put the house to the existing houses to the right and left. Mr. Cheran stated that it would probably be about 20 feet. Staff did an on -site inspection, and it's close. Mr. Scott asked Mr. Lellock if he had to move the footprint of the home back on the lot, what kind of ramifications would that have. Mr. Lellock stated that he didn't foresee anything. They could still maintain the proper distance from the existing drainfreld. Mr. Lellock at this point is not sure exactly where the well is, so the house may need to move back anyway. He doesn't see that moving the house back would adversely affect the building of the house. Vice Chairman Perry asked how much distance Mr. Lellock is thinking about moving back. Mr. Lellock stated they had discussed this and maybe potentially 50 feet back from the presently shown cation without any hardship. l Minute Book Page 1408 Frederick County Board of Zoning Appeals Minutes of October 17, 2006 Vice Chairman Perry asked if he's talking about roughly 150 feet from Route 644 and Mr. Lellocklapondedyes. Vice Chairman Perry asked if anyone is present who has any further comments in favor of this request. Ms. Kimberly Franklin identified herself. She owns property on East Parkins Mill Road. Ms. Franklin stated that she's very familiar with this area and if the home is built where it is supposed, it will be extremely close to the homes on either side. Ms. Franklin opposes this variance request as it stands. Vice Chairman Perry asked if anyone is present to speak in favor of the applicant and no responded. He then asked if anyone else is present who is opposed and no one responded. Vice Chairman Perry closed the public hearing portion of the meeting. Discussion Ms. Mather stated she believes it would be better if the house was pushed back farther away from the road so it won't be clustered with the other houses. Vice Chairman Perry asked the Board members if they had a number. Mr. Scott stated it would be hard to determine without knowing the full outlay of the property. 6 Vice Chairman Perry asked Mr. Cheran the distance requirement between a drainfreld and a residence. Mr. Cheran stated he believes it's 20 feet. Mr. Lellock stated that the distance is 20 feet. Mr. Lellock clarified on the well. It is not existing, it's only proposed at this point; it hasn't been drilled. He believes it's somewhere to the front of the property but he doesn't have that information at this point. Vice Chairman Perry stated he believes the Board is pretty much in favor of granting the variance if they can get the site location back as deep as possible. Mr. Lellock asked is that a condition that's placed on this variance request, or if that's something that's dealt with at building permit time. Vice Chairman Perry stated it's a condition of the variance request. Mr. Scott made a motion that this variance request be approved as requested with the 15 foot side yard setbacks and that the proposed dwelling be pushed back 220 feet from Route 644 allowing the rear of the proposed dwelling to be 20 feet from the existing septic tank. Ms. Mather seconded the motion and the vote was unanimous. Vice Chairman Perry turned the meeting back to Chairman Catlett. Minute Book Page 1409 Frederick County Board of Zoning Appeals Minutes of October 17. 2006 0 PUBLIC HEARING Variance Request #19 -06 of Charles and Christine Gilbert, for a six foot rear yard variance. This property is located at 104 Richwood Court, and is identified with Property Identification Number 75D- 4 -3 -82 in the Shawnee Magisterial District. ACTION —VARIANCE DENIED Mr. Cheran gave the staff report. The variance request is a six foot rear yard variance to allow for an attached screen porch. The reason for this variance is the narrowness and shape of the lot. This property is currently zoned RP and has a square footage of 15,388 with a single family dwelling built upon the property. The Frederick County Zoning Ordinance allows for lots in the RP zoning district to range in size from 100,000 square feet to 13,000 square feet in size. Setbacks in this zoning district for lots that are 15,000 square feet or greater are 35 feet front, 10 feet sides and 25 feet rear. Mr. Cheran further stated that Section 165- 23F(3) of the Frederick County zoning ordinance allows for decks to extend three feet into the required setback provided that the features comprise less than one third the length of the wall of the primary structure. 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)Oat 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. This application does not meet the requirements for variances set forth in the Code of Virginia, Section 15.2- 2309(2), that strict application of the Ordinance will produce an undue hardship. Therefore, staff would recommend denial of this variance application. Ms. Mather noticed from the picture that there is a storm grate in the back yard and it looks like a lot of the land drains to their back yard. Mr. Cheran stated there is a drainage easement that runs perpendicular to the rear property line. Ms. Mather asked if the applicants were to change the size of the screen porch, would that make any difference. Mr. Scott asked if there are any measurements and Mr. Cheran stated the applicant could address that. Mr. Cheran responded to Ms. Mather, stating that they could get a different deck size. Mr. Rinker asked if it's a screened in deck or porch, does that become a room and more a part of the house. Mr. Cheran stated the ordinance defines it as part of the primary structure, whether it's a deck, screened in deck or stoop; if it's attached, it's part of the primary structure. If it's detached, we allow different regulations. Ms. Mather asked if it was a detached screened porch of some sort, would it be allowed. Mr. Cheran Minute Book Page 1410 Frederick County Board of Zoning Appeals Minutes of October 17. 2006 ted that is correct. Any detached structure in the RP zoning district only has to be five feet off the property41re. The Board members discussed with Mr. Cheran different shapes of porches that may be built, a terraced deck, a smaller deck, the builders' responsibilities and the BZA's responsibility according to the State Code. Mr. Charles Gilbert and his wife, Christina, identified themselves as the owners of the property in question. Mr. Gilbert stated they do wish to go six feet back but it's only for a length of seven feet. The lot is shaped diagonally and they want to go back six feet; within seven feet, it narrows down to nothing. He's talking about 24 square feet of space so they can put steps back there that are four feet wide and they're safe. They have tried many other designs, having the steps come out the side of the house, and the FICA will not approve the design to allow the steps to come out the side. They don't want the steps coming right down in front of their downstairs sliding glass door. They have a two foot bump -out on the back of their house which, if they could only go out the ten feet, if you count the bump -out, that leaves eight feet. Mr. Scott asked Mr. Gilbert what the dimensions are. Mr. Gilbert stated the deck itself is 12 feet from the back of the house and four feet for the steps. Chairman Catlett stated it is possible to build one within the building restriction lines, just not as large as the applicants would like to build. Chairman Catlett asked the length from the corner of the bump -out to the building restriction line. Mr. filbert stated eight feet. Chairman Catlett stated it is possible to put something there and Mr. Gilbert said it is Possible, but it's not useable. Chairman Catlett asked if anyone present would like to speak in favor of the variance request and no one responded. There was no one present who was opposed and wanted to speak. The public hearing portion of the meeting was closed. Discussion Mr. Perry asked the applicants if they had exhausted every possible deck configuration and Mr. Gilbert responded that they've had 15 or 20 of them drawn. Mr. Gilbert stated everything else just makes it unusable. Or the steps come down in front of the sliding glass door in the basement. Mr. Scott asked how about if they go the other way. Mr. Gilbert stated if you go the other way, you're going to be right in front of the window and the window would have to be barred up for safety reasons. Chairman Catlett and Mr. Scott offered suggestions to Mr. Gilbert about the direction of the steps and installing rails on the steps, but Mr. Gilbert stated they'd be coming back a few feet, because eight feet from the bump -out is just not very much space. Chairman Catlett stated that the variance request would not be as great if the Gilberts would bring their steps across the other side of the house. Mr. Gilbert stated if they bring the steps down this side of the house, ey're going to end up right in front of the window. Minute Book Page 1411 Frederick Count} Board of Zoning Appeals Minutes of October 17. 2006 W eraMs. Mather asked Mr. Cheran if there's anything he could suggest to help the Board with this. Mr. n stated, as it is now, this doesn't meet the requirement of a hardship. A smaller deck could work. What the Board is looking at is, does this meet a hardship, and under the Code of Virginia it does not meet a hardship. Mr. Cheran further stated that had they spec'ed the house out with a deck, the builder most likely would have set the dwelling differently. The drainage easement could be an issue. Chairman Catlett stated that it's up to this Board to decide whether a variance should be or should not be granted and if so, how much of a variance. Mr. Shenk made a motion that this variance be denied. Mr. Perry seconded the motion and it passed by a majority vote. PUBLIC HEARING Variance Request #20 -06 of Donald Adams, submitted by Artz and Associates, PLC, for a 40 foot right side yard variance and a 35 foot left side yard variance. This property is located in Fair View Subdivision, Lot 1, off Old Bethel Church Road (Route 608), and is identified with Property Identification Number 30- A -144A in the Gainesboro Magisterial District. ACTION — VARIANCE APPROVED FOR 35 FEET ON BOTH SIDES 0 Ms. Krempa gave the staff report. The property setback lines at the time of adoption of the 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 zoning classifications to the current zoning district RA, the setbacks became 60 feet front. 50 feet 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 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 35 feet on the left side and 40 feet on the right side. Should this variance be granted, the building setbacks would remain 60 feet front, change to ten feet on the right and 15 feet on the left, and remain 50 feet rear. It appears this variance does meet 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 j ustified. Ms. Krempa stated that Mr. Mike Artz, who is representing the owner, is present. Ms. Mather stated that from the aerial map, it looks like there are already two structures on the property. Ms. Krempa stated that the property is vacant; the property behind it is also owned by Mr. Adams and that has 4 structures on it. Minute Book Page 1412 Frederick County Board of Zoning Appeals Minutes of October 17. 2006 Ms. Mather said it looks like there is something on the rear and something on the right side. At this time, Mr. Shenk stated that he must abstain from voting due to a conflict of interest. Ms. Krempa stated that she'll defer Ms. Mather's question to Mr. Artz. Mr. Cheran stated that staff did visit the site and the property is vacant. The County's aerial photographs have not been updated. Mr. Mike Artz of Artz & Associates approached the podium. He stated that be believes the overlay of the lot on the aerial photo is not accurate. There are actually two lots there; there were three lots back in 1947 when the subdivision was created. There are no structures on the property; there is a little structure on the adjacent lot. Chairman Catlett asked if the red outline on the aerial photo is not accurate. Mr. Artz and Mr. Cheran both responded that is correct. Mr. Artz further stated that in 1947 the subdivision was created, prior to zoning in 1967. In 1966, half of the middle lot was given to both of the adjoining lots so that created the lot configuration you see today. What the owner is asking for today is relief on the side setbacks. The property on the northeastern side, the home would be located approximately with a 15 foot side yard about 50 feet away from an existing house so it's about 35 feet off the existing property line. On the other side, against the Mauzy property, they're asking 40r a ten foot setback and the house on that property is probably about 100 feet away from this house. They It if they were going to ask for a reduced setback, they would try to get it further away from the house next to the property. The proposed house is about 2,486 square feet. Chairman Catlett asked if anyone is present who would like to speak in favor of the variance and no one responded. She asked if anyone is present who is opposed would like to speak and no one responded. The public hearing portion of the meeting was closed. Discussion Mr. Rinker stated that when this was consolidated in 1966, the setbacks were 15 feet on each side, and he always has a problem going below that 15 feet, because they knew that in 1966. Chairman Catlett stated that's a good point; she understands Mr. Artz's comment that he's trying to get the house in between the two existing houses, but if they stay at 15 feet, it would require the home to be scaled back in square footage or re- scaled. Mr. Rinker made a motion to approve the variance with a 35 foot variance on both sides, resulting in a 15 foot setback on both sides. Mr. Perry seconded the motion and it passed with a majority vote. It Minute Book Page 1413 Frederick County Board of Zoning Appeals Minutes of October 17, 2006 0 PUBLIC HEARING Variance Request 421 -06 of Dennis Longerbeam, for a one foot front yard variance. This property is located in the Red Fox Run iI Subdivision, Lot 48 on Travis Court, and is identified with Property Identification Number 64D- 8 -2 -48 in the Shawnee Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran gave the staff report. The property is zoned RP (Residential Performance) and has a square footage of 13,224 square feet with a single- family dwelling built on the property. Required setbacks for RP lots for this size are 35 feet front, ten feet on each side and 25 feet rear. The building permit was issued for this dwelling and had setbacks of 37 feet front, 11.8 right side, 44.8 left side and 36.1 feet rear. The Frederick County Zoning Ordinance requires survey standards to establish the location of primary structures located five feet or less from the minimum setback requirement of the zoning district in which the property is located. This building permit was required to provide setback surveys. The applicant reversed the building plan layout during construction. The field change was revealed on the final setback report recorded September 15, 2006. Mr. Cheran further stated that this application for a variance does not meet the requirements as set forth by The Code of Virginia 15.2 -2209 (2), and the Frederick County Zoning Ordinance. The violation of the RP setbacks was self - inflicted and does not produce an undue hardship. Staff would recommend denial of the variance application. Mr. Cheran stated that Mr. Longerbeam will be represented by Mr. Scott Marsh of Marsh & Leggerveyors. Mr. Cheran pointed out that in the copy of the variance application submitted by Mr. Longerbeam and included with the agenda, he states, "The building plan layout for this dwelling was reversed for construction on this lot in an effort to meet the lot limitations listed above. This field change did not reveal a setback issue along the arc of the curve for the cul -de -sac right -of -way and 35' setback line'. The applicant admitted that it was self inflicted. Chairman Catlett said the Board has the survey drawn on August 8, 2005, that was turned in to get the building permit. Is there not a requirement for an additional survey as a wall check? Mr. Cheran stated that usually, that's how it happens. Mr. Cheran will let the applicant address that issue. Chairman Catlett stated that the survey that was submitted with the request for a building permit, regardless of whether he flipped or did not flip this house plan, was it a requirement that he would have a survey at the point of the footer? Was that not done? Mr. Cheran stated they have no copy of that. Mr. Dennis Longerbeam came forward. Mr. Longerbeam stated he's been responsible for well over 100 houses, dealing with the surveyors and sub - contractors. This is the first time this has ever happened to him. He understands and respects the setback requirements. This was a mistake; they reversed the house. Mr. Longerbeam further stated that they took into consideration that the garage would be kicked forward some; however, there is some difficulty in this lot with the slope in the back and also the drainage easement to the 6ft. He thought they were within the building restriction lines and he was not aware they were outside of this tit their final as -built survey that was done by Marsh & Legge. Minute Book Page 1414 Frederick County Board of Zoning Appeals Minutes of October 17. 2006 Mr. Perry asked Mr. Longerbeam the reason for reversing the house. Mr. Longerbeam stated the way it was originally laid out would have required moving the driveway apron which wouldn't have been such a big issue except there's a catch basin there, so they were unable to do that. But by reversing it, they eliminated that problem and also to help them with the grading so they wouldn't have such a severe slope from the front to the back. Mr. Perry also asked Mr. Longerbeam, with the experience that he has reiterated, would he not think that having secured the building permit with the garage on the left -hand side, and he elected to change it, that you did or did not need to come back and have that revised. Mr. Longerbeam stated that he didn't feel like he did because they had Marsh & Legge Land Surveyors come out and stake the lot out as well as survey it. He felt that he could shift everything without any further help from the surveyors or the County. Mr. Perry asked if the corner stakes were in place for this building envelope when Mr. Longerbeam made the flip - Flop? Mr. Longerbeam responded yes sir. Mr. Perry said when you did that, you couldn't see that the corner of the garage was outside of the stake? Mr. Scott Marsh responded to this; however, he was not standing at the podium. The microphone did not pick up what he said nor could the Secretary hear Mr. Marsh. Chairman Catlett asked Mr. Marsh to move closer to the microphone. Mr. Marsh stated Marsh & Legge has history on this lot before Mr. Longerbeam ever bought it. The Red Fox Subdivision has as many as 60 lots. Of those, six of the lots had special grading issues that Frederick County Public Works would not release s - built plans on the infrastructure roads, sewer /water, drainage, because of these six lots, five of which are all lgether in two cut -de -sacs, and those five butt up to Bufflick Run. This lot, Lot 48, was a stand -alone and it butts up to a tributary to Bufflick Run. What happened is, the County reviewed the drainage and they rejected these six lots and ECS, a - eotechnical firm, was brought in by the developer and they did an extensive study on the six lots and they passed all but two — Lot 34 and 48. Lot 34 wasn't built per the plan that the engineer did. On Lot 48, they said don't build it per the plan, the slopes are too steep, you need to reduce it to a greater slope than 2 to 1. Marsh & Legge did a final survey after the infrastructure part was put in place by the developer. Lot 48 was purchased by Mr. Longerbeam. In Mr. Marsh's view, here is the hardship on this lot, it is different than the other 60 lots and it's not like the ones adjoining it; it is a stand- alone. Mr. Marsh stated that Mr. Longerbeam, in his efforts to make this a suitable dwelling, reversed the house. It was a good. decision. He moved the garage to this side, the storm sewer is on this side and stays away from problem areas, and the curb cut was already in place. He could set the garage level down about a foot lower and that helped with the slope. Mr. Marsh continued that if they had it to do over again, they should have re- pinned it. Mr. Marsh stated that the encroachment is nominal. He believes they have demonstrated hardship. If this variance is granted, the dwelling and the way it's positioned is in harmony with the spirit and the intent of the zoning ordinance and it's consistent with the neighborhood. The intent is to have a reasonable front setback and this request, in Mr. Marsh's view, is still reasonable. if it's granted, the variance will not result in diminishing of value in surrounding properties and the dwelling is likely to enhance property values or have no effect either way on property values. If granted, the variance will not be contrary to the public or private interests or rights; this variance allows a reasonable use of the property without affecting anyone else's rights or interests. In fact, it benefits because he did reduce the yard slopes beyond what was recommended and Vs important to the subdivision and the open space that's behind it. Minute Book Page 1415 Frederick County Board of Zoning Appeals Minutes of October 17, 2006 4 Chairman Catlett asked if Mr. Longerbeam had left it with the original plan, could a drivewayhave been p aced across the drainage easement on the left side of the property. Mr. Cheran replied it could have. However, if repairs needed to be made, it would be the property owner's responsibility. Mr. Cheran pointed out again that this is self- inflicted. Understanding that Mr. Longerbeam did what he was supposed to do through Public Works, we could have re- shaped that lot and gotten the house in the way it should have been and not over the setback. One of the strict applications is will it change the look of what is there now, and that's the question the Board needs to look at. Mr. Cheran continued there are some things you can do in a front setback; the Zoning Administrator can do. If it would have been a non- conforming lot that had a front setback issue, the Zoning Administrator internally can go ahead and take care of that and issue the variance for front setbacks, not sides or rears. If this had been an older lot, Mr. Cheran could have sent a letter to Mr. Longerbeam saying you are authorized, it would have been on record and he could have gotten his CO. That would not apply in this case, but that's something to make the Board aware of. Mr. Perry stated it is hard for him to understand how he could be aware of all of these other problems that Mr. Marsh has mentioned and he has gone through all the steps, that Mr. Longerbeam didn't go that one last step and confirm with Mr. Marsh that the house is set all right before building it. Mr. Longerbeam stated that he understands that and in hindsight, from now on that will be done. He felt that it was something that he could do himself and he was confident enough to be able to handle it. But he made a miscalculation. is Chairman Catlett asked if anyone present in favor of the variance request would like to speak. Mr. Jimmy McCann stated that he is the neighbor to the right of this house. Mr. McCann is in favor of this variance request. Mr. McCann's opinion is it's a beautiful house and it has no effect on him or his family. There was no one else present who wished to speak in favor or against this request and the public hearing portion was closed. Discussion Mr. Rinker believes that the defense that Mr. Marsh gave for the hardship is all very accurate, but it would have been appropriate if it were coming in for a variance before the house is built. With the house laid out as it was, a variance was not needed. If they're going to flip it, then they needed the variance and they should have come in at that time. After the fact is the hardship, not the lay of the ground and the topo. Mr. Shenk made a motion to approve the variance. Mr. Scott seconded the motion and it passed unanimously. Mr. Perry left the meeting at 5:05 pm. 1 Minute Book Page 1416 Frederick County Board of Zoning Appeals Minutes of October 17, 2006 PUBLIC HEARING Variance Request #22 -06 for Funkhouser Lot 35, submitted by Ariz and Associates, PLC, for a 20 foot front yard variance to Callaway Court and a 40 foot side yard variance on both sides. This property is located at 113 Callaway Court, and is identified with Property identification Number 76A -1 -35 in the Shawnee Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran gave the staff report. This variance request was before the Board a couple of months ago and the applicant was directed to see if he could do a lot consolidation to make a non - conforming lot a buildable lot. The applicant has not been able to do that. Mr. Cheran further stated that Lot 35 is part of the Funkhouser Subdivision that was created in 1946, prior to Frederick County adopting 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 feet for both fronts and 15 feet 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 feet front on both fronts, and 50 feet side setbacks. 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 9rdship is not shared generally by other properties in the same zoning district and the same vicinity; and c) at 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 has proposed a lot consolidation of three lots in an effort to meet the current RA zoning district setbacks. The consolidation of the three lots will not meet the current setbacks for the RA zoning district. Staff would note that the proposed lot consolidation will result in a non - conforming RA lot of 11,000 square feet in size. The character of the surrounding district will not have changed, as the lot sizes in this area are 12,000 square feet to 15,000 square feet in size. The applicant is seeking a variance of 40 feet on both side yards and a 20 foot front yard variance to build a two -story residential structure of approximately 3,000 square feet in size. The Callaway Court front variance is being requested so as to save a large white oak tree. Should this variance be granted, the building setbacks for this property would be 40 feet front, 60 feet rear and ten feet on both sides. It is important to note that with the given setbacks, the dwelling will fit the appearance of the neighborhood. 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. Mike Ariz is representing the owner. What they're trying to do is create these lots in such a manner so that the houses and the lot sizes will be in character with the rest of the subdivision adjacent, which is Canter Estates. Mr. Artz stated they are asking for consideration because there are some nice sized trees there that they would like to save. Mr. Cheran stated that Callaway Court is now in the State's road system. Minute Book Page 1417 Frederick County Board of Zoning Appeals Minutes of October 17, 2006 0 As no one else wished to speak either for or against the request, the public portion of the meeting was closed. Discussion Chairman Catlett stated that, from her point of view, the applicant has tried to address the issues that were discussed at the June meeting. Mr. Rinker made a motion to approve the variance request. Mr. Scott seconded the motion and it passed unanimously. PUBLIC HEARING Variance Request #23 -06 for Funkhouser Lot 37, submitted by Artz and Associates, PLC, for a 20 foot front yard variance to Callaway Court and a 40 foot side yard variance on both sides. This property is located on Callaway Court, and is identified with Property Identification Number 76A -1 -37 in the Shawnee Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran gave the staff report. Mr. Cheran stated that Lot 35 is part of the Funkhouser Subdivision that was created in 1946 prior to Frederick County adopting 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 feet for both fronts and 15 fee 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 feet front on both fronts, and 50 feet side setbacks. 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 has proposed a lot consolidation of three lots in an effort to meet the current RA zoning district setbacks. The consolidation of the three lots will not meet the current setbacks for the RA zoning district. Staff would note that the proposed lot consolidation will result in a non - conforming RA lot of 11,000 square feet in size. The character of the surrounding district will not have changed as the lot sizes in this area are 12,000 square feet to 15,000 square feet in size. The applicant is seeking a variance of 40 feet on both side yards and a 20 foot front yard variance to build a two -story residential structure of approximately 3,000 square feet in size. The Callaway Court front ariancc is being requested so as to save a large white oak tree. Should this variance be granted, the building for this property would be 40 feet front, 60 feet rear and ten feet on both sides. It is important to note Minute Book Page 1418 Frederick County Board of Zoning Appeals Minutes of October 17, 2006 bat with the given setbacks, the dwelling will fit the appearance of the neighborhood. It appears that this ariance 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 bejustified. Mr. Mike Artz is representing the owner. Mr. Artz had nothing new to add. As no one else wished to speak either for or against the request, the public portion of the meeting was closed. Discussion Mr. Shenk made a motion to approve the variance request. Mr. Scott 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 5:10 p.m. by unanimous vote. Respectfully submitted, Theresa B. Catlett. Chairman Bev Dellinger, Secretary Minute Book Page 1419 Frederick County Board of Zoning Appeals Minutes of October 17, 2006