BZA 12-18-07 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 December 18, 2007.
PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman,
Stonewall District; Dwight Shenk, Gaincsboro District; Kevin Scott, Shawnee District; Eric
Lowman, Red Bud District; Jay Givens, Back Creek District; and, Robert W. Wells, Member -At-
Large.
ABSENT:
STAFF
PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Planner
I; 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. Lowman, the minutes for the November
20, 2007, meeting were unanimously approved as presented.
The cut -off date for the January meeting is Friday, December 21, 2007. Mr. Cheran
stated that as of now, there are no applications but there will be a meeting in January.
PUBLIC HEARING
Variance Request #25 -07 of Red Apple Group, for a 30 foot left side yard
variance, resulting in a left side yard setback of 20 feet. This property is located
at 277 White Hall Road (Route 671), and is identified by Property Identification
Number 32- A -68E, in the Stonewall Magisterial District.
ACTION — VARIANCE APPROVED
Mr. Cheran presented the staff report. The applicant is seeking a variance of 30 feet on the left
side to correct a setback for an existing dwelling. The reason for this variance is to correct the dwelling
encroachment on the building restriction line, which was not discovered until resale. The building
restriction lines for this property on the approved plat are 60 feet front, 50 feet right side, 45 feet left side
and 50 feet to the rear. The left side of the dwelling is encroaching 30 feet over the setback line and this
new setback will be measured from the existing right -of -way on the adjacent lot.
Mr. Cheran further stated that Section 165- 23H(1) of the Frederick County Zoning Ordinance
provides the survey location requirements for primary structures and states that, "A surveyor licensed in
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the Commonwealth of Virginia shall establish the location of any primary structure that is five feet or
less from any minimum setback requirement ". The permit holder submitted an application for building
permit #451 -2004 on March 15, 2004, with setbacks of 80 feet front, 165 feet right side, 65 feet left side
and 180 feet to the rear. Therefore, the applicant was not required to submit a setback survey for this
property. The Frederick County Building Official issued a Certificate of Occupancy for this dwelling on
November 24, 2004. This setback violation was discovered during a title search for resale of this
property.
The Code of Virginia 15.2- 2309(2) states that no variance shall be granted unless the application
can meet the following requirements:
1. The strict application of the Ordinance will produce an undue hardship.
2. The hardship is not generally shared by the properties in the same zoning district and
vicinity.
3. That the authorization of such variance will not be a substantial detriment to the adjacent
property and the character of the district will not be changed by the variance.
It appears that this variance request meets the intent of the Code of Virginia, Section 15.2-
2309(2). The property was acquired in good faith by the owner and with no previous knowledge of the
setback violation. This request from the current setbacks of the RA zoning district may be justified.
Mr. Perry asked Mr. Cheran if this right -of -way was recorded on the original plat. Mr. Cheran
replied that it is on the original plat and it was recorded in 1992 when this subdivision was created.
is Mr. Givens stated he recognizes why a site plan wasn't required because the setbacks seemed to
be all right, but this house doesn't even look like it was set close to what they said. How could it have
not been noted by someone through the process?
Mr. Cheran responded that he could only speculate. The builder came in with the setbacks and
we go with what's on the permit.
Chairman Catlett stated that the current owner had the property built in 2004 and Mr. Cheran
responded that is correct. The builder, Mr. Shifflett, agreed to abide by all the zoning ordinances when
he applied for the permit.
Ms. Bonnie Edwards of ReMax stated she is representing the applicant. Ms. Edwards stated she
believes at the time the house was built, it was 45 feet not 60 feet, from the edge of that line.
Mr. Cheran said what Ms. Edwards is saying is that actually the plat has 45 feet from the edge of
the casement and it should have been 60 feet. That hasn't changed; when it was done in 1992, it should
have shown 60 feet.
Mr. Givens stated that the plat was approved at 45 feet so that was a County approval, so 45 feet
is the side yard setback. Their permit said they were going to be 65 feet off of that so if it had been 65
feet, it would have been 20 feet inside the easement. It turns out being 30 feet outside the easement so
the house was set 55 feet to the left side from where it was proposed to be set. Mr. Givens stated this
isn't a little bit of an error.
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Chairman Catlett asked if Mr. Shifflett built the house as a spec and sold it and Ms. Edwards
responded yes, he sold it to Red Apple Group. Ms. Edwards is now re- selling the house.
Mr. Perry asked if the private drive -way is being used and Ms. Edwards replied just by one
household.
Mr. Givens asked if it could be used by any other property and Ms. Edwards responded that's the
only property.
Mr. Wells asked who owns the fence and Ms. Edwards stated the fence belongs to the Red Apple
Group.
There were no citizen comments.
Discussion
Mr. Shenk made a motion to approve Variance 425 -07. Mr. Scott seconded the motion and it
passed by unanimous vote.
OTHER
Mr. Cheran introduced Mr. R. K. Shirley, III, of the Opequon District, who will be taking the place
of Chairman Catlett. Chairman Catlett's reappointment ends this month.
Mr. Cheran thanked Chairman Catlett for her time on the Board of Zoning Appeals.
Mr. Cheran introduced Mr. Dana Johnston, Zoning Inspector, who will be working with the Board
as Ms. Lauren Krempa will be leaving the County.
Mr. Cheran asked the Board to look over their Bylaws before the January meeting. Election of
officers and adoption of the Bylaws will take place at the January 2008 meeting.
As there were no other items to be discussed, the meeting adjourned at 4:10 p.m. by unanimous
vote.
Respectfully submitted,
Theresa Catlett 11 Chairman
Bev Dellinger, Secretary
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