BZA 01-16-07 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, January 16, 2007.
PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall
District; Dwight Shenk, Gainesboro District; Eric Lowman, Red Bud District; Kevin Scott, Shawnee
District; Dudley Rinker, Back Creek District; and Robert W. Wells, Member -At- Large.
ABSENT:
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. Pert', the minutes for the November 21, 2006
meeting were unanimously approved as presented.
f0
Chairman Catlett welcomed Mr. Eric Lowman to the Board of Zoning Appeals. Mr. Lowman is
the new member from the Red Bud District.
Chairman Catlett opened the floor for motions for the election of officers for the year 2007. Mr.
Wells made a motion to keep the current officers in place. Mr. Scott seconded the motion and it
passed unanimously. Officers for the Board of Zoning Appeals for the year 2007 are: Theresa Catlett,
Chairman; Robert Perry, Vice Chairman; and Bev Dellinger, Secretary. The By -Laws for the Board of
Zoning Appeals were unanimously adopted, as well as the time and place of meetings, which is the
third Tuesday of the month at 3:25 p.m. in the Board Room of the Frederick County Administration
Building, 107 North Kent Street, Winchester, Virginia.
Chairman Catlett stated she would like to take this opportunity to present a Resolution of
Appreciation, honoring Mr. Dudley Rinker, for his years of service to this Board and also Mr. Rinker
has served this County in many capacities for many years. Chairman Catlett read the Resolution and
presented it to Mr. Rinker. Mr. Rinker stated it certainly has been interesting and he leaves the Board
in good hands. Mr. Rinker stated he's only going to serve until Mr. James Givens' appointment
becomes official.
The cut -off date for the February meeting is January 19, 2007.
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Frederick County Board of Zoning Appeals
Minutes of January 16, 2007
PUBLIC HEARING
Variance Request 926 -06 of Darin S. Newlin, for a 22 foot left side yard variance,
resulting in a left side yard setback of 28 feet. This property is located in Hogue
Creek Estates, Lot 22 -B, and is identified with Property Identification Number 50-
4-22B in the Back Creek Magisterial District.
ACTION — VARIANCE APPROVED
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, 15 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
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 22 feet for his left side yard to produce a buildable area on the
operty. Should this variance be granted, the building setbacks would remain 60 feet front, 50 feet on the
ht, change to 28 feet on the left and remain 50 feet to the rear. This is a five acre piece of property
however, the steep slopes, floodplain across the middle and narrowness of the lot toward the front of the
property appear to present a hardship as defined in the Code of Virginia, Section 15.2- 2309(2). This request
from the current setbacks of the RA zoning district could be justified.
Mr. Darren Foltz, who is representing the applicant, approached the podium. Mr. Foltz stated he agrees
with staff comments; the topography is a hardship as well as the narrowness of the lot.
Chairman Catlett asked if anyone present would like to speak in favor of the variance. There was no
response. She then asked if anyone would like to speak who is opposed to the variance, and no one
responded.
The public hearing portion of the meeting was closed.
Discussion
As the request seemed to be in order, Mr. Shenk made a motion to approve Variance #26 -06. Mr. Scott
seconded the motion and it passed unanimously.
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Frederick County Board of Zoning Appeals
Minutes of January 16, 2007
PUBLIC HEARING
Appeal Application #27 -06 of JRE Winchester, LLC, to appeal the decision of the
Zoning Administrator in accordance with Section 15.2 -2311 of the Code of
Virginia. Two decisions made in the November 28, 2006, Zoning Determination
Letter prepared by the Frederick County Zoning Administrator are being
appealed. The first decision involves the determination that vehicles for rent must
be screened behind a six -foot board -on -board fence or by evergreen trees. The
second decision involves the determination that the gravel area of the site that will
be utilized for the display of equipment for sale or rent must have impervious
surface landscaping as indicated in Section 165 -27E of the Frederick County
Zoning Ordinance. This property is located at the end of Yardmaster Court on
the west side of Martinsburg Pike (US Route 11) approximately two miles north of
Interstate 81, Exit 317, and is identified with Property Identification Numbers 44-
A-75C, 44 -A -75D and 44 -A -75E in the Stonewall Magisterial District.
ACTION — APPEAL APPROVED
Mr. Cheran gave the staff report. Section 165 -33A states that all outdoor storage must be screened by a
fence, wall or by screening. Section 165 -331) states that the display of vehicles for sale by a vehicle dealer
shall be exempt from the screening requirements of 165 -33A. The applicant in their appeal application states
that James River Equipment should not be required to screen vehicles for rent or awaiting repair because other
jtes in the County have not been made to do so. The Zoning Ordinance clearly designates that this ordinance
rtains only to vehicles that are for sale, not vehicles for rent or awaiting repair.
Mr. Cheran further stated that the applicant is also appealing the Zoning Administrator's interpretation
of Section 165- 27E(1 1)(a), which states that the perimeter of all impervious areas shall be landscaped with
shade trees and other landscaping. One tree shall be provided for every 2,000 square feet of impervious area
for the first 100,000 square feet of the entire site. One tree shall be provided for every 5,000 square feet of
impervious area over 100,000 square feet of the entire site. Frederick County allows the area used for the
storage of this type of vehicle /equipment to be gravel due to the weight of the equipment; landscaping
requirements still apply to this parking lot.
In the applicants' appeal application, they state that due to the definition of impervious surface in the
Zoning Ordinance and which items are not calculated toward the total, they are excluded from providing this
landscaping. Section 165 -156, Definitions and Word Usage, defines impervious surface as any area generally
paved or graveled, with a surface that prevents or significantly reduces absorption of stormwater into the
ground. When calculating impervious surface area for landscaping purposes, retention and detention basins,
dry wells, sidewalks, display areas, dumpster pads and structures shall be excluded. The areas used to display
the vehicles that are for sale clearly do not count towards the impervious surface calculations. However, the
entire gravel parking lot that will also contain vehicles for rent and vehicles awaiting repair are not display
areas and are clearly not exempt from the landscaping requirements of §165- 27E(1 1)(a) and need to provide
the required landscaping. It is also noted that this area is classified as a parking lot, not a storage lot, due to
the type of vehicles being stored (mechanized equipment is defined as a vehicle in the Merriam' s- Webster
Dictionary)
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Frederick County Board of Zoning Appeals
Minutes of January 16, 2007
Staff is requesting to affirm the decision of the Zoning Administrator in the administration of Section
65 -27 and 33D of the Frederick County Zoning Ordinance regarding the requirements as they apply to the
applicant's site plan. The requirements being placed on this site are requirements of the Frederick County
Zoning Ordinance and are the same requirements being placed upon all new developments within the County.
Mr. Evan Wyatt of Greenway Engineering, who is representing the applicant, approached the podium.
Mr. Wyatt handed out a presentation to the Board members. Mr. Wyatt asked the Board members to look at
the fold -out map included with his presentation. Mr. Wyatt showed the members the parking area on the map
that complies with what the County requirements are. He also showed them where the equipment display and
outdoor storage area are located. There is also about a 10,000 square foot area that has been designated as a
repair area and there is an actual six foot high fence. They concur that when you get equipment that's
awaiting repair that it should definitely be screened from adjoining properties and road right -of -ways. Mr.
Wyatt further stated that where they have hit an impasse on the site plan approval has been with the issue of
outdoor display of equipment that they believe, whether the equipment is for sale or for rent, has been allowed
to occur on all other sites that Mr. Wyatt can think of without the need for screening. The other issue is the
outdoor display area; the requirement being suggested for parking lot landscaping because it is impervious
surface area.
They believe that businesses within Frederick County that have been developed over the same ordinance
standards have not changed since they were originally adopted in 1990. The sites that have developed,
whether they are having display of equipment outside for rental or for sale, are allowed to display their
products and be visible.
Off - street parking is the first section Mr. Wyatt wants to reference. Section 27 of the Zoning Ordinance
is the section that is specific to off - street parking. It says that off - street parking shall be provided on every lot
or parcel on which any use is established according to the requirements of this section. When you go through
the parking lot section it says you need curb and gutter, asphalt, striping, etc. They are specific standards for
parking lots. Section 27E(11) says that parking lots shall be landscaped; it further says that landscaping shall
be provided in such parking lots as follows. Then it goes into subsection (a) which is perimeter landscaping
and it says the perimeter of all impervious areas shall be landscaped. The area that the County has chosen in
their Ordinance for outdoor display falls under the general category of outdoor storage and processing. It says
that in the business and industrial districts, you can have outdoor storage and you can have stuff that's used in
your processing stored outside, provided it's directly associated with the business. It goes on to say under
subsection (a), 33(a), that if you are doing outdoor storage or processing that that should be completely
screened from views of right -of -ways and adjoining properties. There is an exemption in this same section
which talks about display of vehicles for sale by a vehicle dealer. It says that they're allowed to display
vehicles for sale by a dealer along with other products for sale that are normally displayed outdoors and not
only are they allowed to display them outdoors, but they're exempt from the above requirements, being the
screening requirements.
There are two definitions in the Ordinance today; one is specific for a parking lot. There's another
definition that's strictly for display areas. The definition of impervious says when calculating impervious area
for landscaping purposes, display areas shall be excluded.
Mr. Wyatt stated they believe their site plan clearly complies with what the ordinances are. Looking at
hat's happened in the community, how site plans have been approved, and how their site has been designed,
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Frederick County Board of Zoning Appeals
Minutes of January 16, 2007
they believe they are consistent with the Ordinance. In reviewing the staff report, the only real thing that Mr.
O 'yatt would like to note is the comment about the requirements being placed on the site are requirements
being placed upon all new development. That would be appropriate as a comment if the ordinance had been
revised recently, and it has not. For economic development purposes, business people coming into this
community or to do expansions or new development, there is a certain degree of predictability that they're
looking for, and that degree of predictability is the ordinance that we use to design the sites. Looking at how
we've done these other sites, the ordinance hasn't changed, and that's how they do their design. If the County
is interested in putting up a visual barrier for rental products, Mr. Wyatt personally doesn't think that's
beneficial to that sector of the business community because they need the visibility to let people know they
are there. But if that's the direction that the County wants to go, that's fine, but it should be done through a
process in which the business communities are involved with an ordinance revision that the Board of
Supervisors ultimately approves or denies. Mr. Wyatt believes that the impervious issue does not apply to
them because it is not a parking lot.
Mr. Wells asked Mr. Wyatt how this appeal came before this Board. Mr. Wyatt replied that James River
purchased the property and they hired Greenway Engineering to do the site plan. The site plan was filed
along with all agency comments; they received approvals from all review agencies with the exception of
Planning. We are now at an impasse. Since September of last year, they have been seeking to get their site
plan approved and this is the only outstanding issue preventing that. They got to a point where they felt they
had to come before this Board.
Mr. Perry asked, bottom line, what is the difference between an area where you're going to park a
vehicle or equipment and a parking lot. Mr. Wyatt responded that the difference gets into the definition
Zction of the Ordinance. The Ordinance says a parking lot is this, and then there's a specific section of the
oning Ordinance that says a parking lot shall be designed based on this criteria. You determine the number
of parking spaces based on this criterion. By definition a display area is different. In a display area, not only
on this site but every other site plan Mr. Wyatt has been involved with, your parking area is here and your
display area is here. The two standards are designer different. What is being suggested is that because we
have vehicles that are for sale and rent in the display area, that those would now constitute a parking lot.
That's the first time in Mr. Wyatt's knowledge that that interpretation has ever been made for a commercial
site.
Mr. Wells made a motion to approve the appeal of James River Equipment. Mr. Wells attached to the
motion that they request the proper Board to review these particular ordinances and bring them in line with
where they really need to be. Mr. Scott seconded the motion. Mr. Wells further stated the ordinances seem
counter- productive to him; one says one thing and one says something else. It's a gray area.
Chairman Catlett asked Mr. Wells if his motion is to overturn the decision of the Zoning Administrator.
Mr. Wells said yes, but he wants Mr. Cheran to know that's not overturning, it's recognizing the situation that
Mr. Cheran is in. Mr. Wells further stated that he in no way means this as a negative comment.
Mr. Scott said they are recognizing there are mitigating factors involved and that Mr. Cheran followed
the Ordinance, as he must, in his role as Zoning Administrator.
Chairman Catlett called for the vote and it was unanimous to approve Appeal 927 -06.
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Frederick County Board of Zoning Appeals
Minutes of January 16, 2007
OTHER
Chairman Catlett asked if there is any other business to conic before the Board.
As there were no other items or new business to be discussed, the meeting adjourned at 4?5 p.m.
by unanimous vote.
Respectfully submitted,
Theresa B. Catlekt, Chairman
Bev Dellinger, Secretary
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Frederick County Board of Zoning Appeals
Minutes of January 16, 2007