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BZA 07-17-07 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, July 17, 2007. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro District; Eric Lowman, Red Bud District; Jay Givens, Back Creek District; Kevin Scott. Shawnee District; and, Robert W. Wells, Member -At- Large. ABSENT: STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Robert T. Mitchell, Jr., Attorney for Frederick County; 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 .tune 19, 2007 meeting were unanimously approved as presented. The cut -off date for the August meeting is July 20, 2007. PUBLIC HEARING Appeal Application #09 -07 of Skyridge, LLC, to appeal the determination of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance pertaining to Section 165 -52, Permitted Residential Density; Exception. The subject property is located at Duck Run (Route 608) just south of Shawneeland in Section 32, and is identified with Property Identification Number 69 -A -1 in the Back Creek Magisterial District. ACTION — APPEAL DENIED, ZONING ADMINISTRATOR'S DETERMINATION UPHELD Mr. Cheran stated this is an appeal of the determination of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165 -52, Permitted Residential Density in the Rural Areas District. Mr. Cheran stated for the record that Mr. Douglas Napier is representing the applicant. Mr. Cheran asked Mr. Napier to speak to the appeal. Mr. Doug Napier identified himself as an attorney from Front Royal and he is representing the appellant, Skyridge, LLC. Mr. Napier identified Greg Koons, owner of HT Development, Larry Weaver, project manager for Racey Engineering, and Joe Brogan, surveyor. Minute o k Pag 1465 edenc yt 99 .rd Zoning Appealsmutesou Mr. Napier stated that the overview is that in late July of 2005, Mr. Koons and Donnie Poe, who is the principal with Skyridge (Mr. Poe cannot be here because of a prior commitment, but he will be available by speaker phone to speak to this issue), were considering buying the northern portion, 194 acre parcel, which they did ultimately purchase. Originally, the parcel was all of the 194 acres and the 68 acres. They read the ordinance, and prior to closing on the lot went to see the Zoning Administrator and asked him if they were reading the ordinance correctly, that the permitted density of five acres in the 60/40 split in the RA District meant that the permitted residential density could be put on the northern portion of the property. They were informed that yes, you can put all of the permitted density, which translates to 52 lots, on the northern half. Mr. Napier further stated that the Zoning Administrator also said that, however, Wardensville Grade will have to be widened to allow for a 50 foot VDOT right -of- way. Based on that representation, Skyridge and HT Development went to Mr. Brogan, had a new plat drawn up which shows a 50 foot dedicated right -of -way, and then went to closing in August 2005. Mr. Napier gave the Board members some handouts. The property was subdivided at the closing into two lots, one of 194 acres, which is the subject of this appeal, and the southern portion of 68 acres. Thereafter, in late January or early February 2006, Larry Weaver had a series of face -to -face meetings and emails where he made a presentation of an actual lot layout, first of 51 lots and then 52 lots, showing how the property would be developed. Mr. Weaver submitted two pre - preliminary layouts of the property. The first one showed 51 lots, and at the face -to -face meeting. Mr. Cheran indicated that he needed two entrances off of Wardensville Grade as opposed to the one entrance that was originally shown. But before that was done, Mr. Weaver sent an email with a pre - preliminary lot layout and showed it to Mr. Cheran and asked if the lot la and entrances were okay and Mr. Cheran wrote back, The plan with the roads looks good to me — me a call ". It was determined that an additional lot could be placed on there, making 52 lots, which would be the permitted density under the Frederick County Ordinance. Mr. Napier further stated that in March 2007, there was a meeting with the Zoning Administrator, Pat Racey, who is the engineer with Racey Engineering, Mr. Poe, Mr. Koons, Mr. Weaver, Mr. Brogan and Mr. Napier, when Mr. Cheran again admitted that he had indicated that 52 lots could be put on that northern parcel and that was his oral opinion. Thereafter, in May 2007 following a request for a determination letter, Mr. Cheran on May 25, 2007, gave the determination letter that is in the agenda packet, saying that only 38 lots were allowed and not 52 lots. Mr. Napier stated the first argument with this determination is the concept of vested rights that in good faith, before they purchased the property and before incurring thousands of dollars, Mr. Poe and Mr. Koons wanted to make sure that they indeed were reading the ordinance correctly that they could get 52 lots on that parcel of land. They were assured that they could and in good faith reliance on that went to closing. Further, in reliance on that, they incurred professional expenses and the preliminary layouts were submitted, all this expense was done in good faith and reliance that they could indeed do what they'd been told they could do, and thereafter found out it was said that it could not be done. That makes a huge difference to an owner of property because your profit comes from the additional lots. The second part of Mr. Napier's argument is that if you read the Frederick County Ordinance closely, there could be construed to be ambiguity in that what the Ordinance says. It says the maximum density permitted on any parcel or group of parcels cannot exceed the equivalent of one unit per five acres as determined by the size of the parent tract as it existed on the date of the adoption of this Section. NhNne Ijo gkuPage 1466 Q ertcKK J Iny ?5117 f Zoning Appeals mutes o Jul 1 _U It was adopted in December 1991. In 1991, the property was the 232 acres as opposed to 194 acres. If you divide the maximum density of five acres into the 232 acres, it comes out to 52 lots. Nowhere in the Ordinance does it say that the 52 acres, if there's a later subdivision, that all of the density has to be put on one lot or the other lot or has to be split in two. There's an inherent ambiguity in the Ordinance which is why the appellants went to the Zoning Administrator and wanted to make sure they were reading this correctly and they were assured repeatedly that they were. The determination of the Zoning Administrator that only 38 lots could go on one side of the road and the remainder of the lots must go to the other side of the road is not, supported by anything in the Frederick County Ordinance. Mr. Napier cited a court case from Warren County, Carolina Cement v Board of Zoning Appeals, wherein Judge Whetsell ruled, "The rule which prevails in most jurisdictions, at least in the absence of any statute to the contrary since zoning ordinances are in derogation of the common law and operate to deprive an owner of a use thereof which would otherwise be lawful, they could be strictly construed in favor of the property owner ". What Judge Whetsell ruled is that when you have a zoning ordinance, it is in derogation of common law — common law means you can do with your property what you want. We all know that zoning is necessary, but nevertheless, zoning does operate to deprive an owner what would otherwise be the lawful use of his property. If there is an ambiguity, if there's two ways of reading it, it's got to be read in favor of the property owner. Mr. Napier contends that if there is an ambiguity in the Ordinance, which there is because Mr. Cheran has read it the other way saying that the development rights have to be split, you can't read that into the Ordinance expressly. Mr. Greg Koons, owner of HT Development, stated that in the initial meeting held before purchasing the property, there was a plat drawn that was surveyed that showed the whole parcel with the road going through. Mr. Koons and Mr. Poe were at the meeting and Mr. Poe had asked specifically if they could put that onto this parcel once they purchased this smaller piece and it was divided, and it was indicated that they could. Then at the meeting in January was when a preliminary layout was presented to him with the density showing on the one parcel, and that's when he indicated about having the additional road. It was re- worked and sent over again. Mr. Perry asked Mr. Koons if he owns the other 38 acres and Mr. Koons responded no, when it was purchased the contract said it was only going to be the property on the north side of the road. Mr. Perry asked did Mr. Koons not think when he broke up the property into two parcels, the Ordinance would pertain to the parcel that you purchased and whoever buys the 38 acres is going to pertain to them. In other words, Mr. Perry stated that if you put 52 lots on your part, how many will go on the other 38 acres. Mr. Koons stated that Mr. Poe is the one experienced in buying property and Mr. Koons is a minor partner and his experience in the development is minimal. Mr. Perry said it seems to him if he's allowed to put 52 on the big tract, then whoever buys the other tract won't be able to put anything. Chairman Catlett asked Mr. Koons if the complete discussion centered around their purchasing the 194 acres and not the other parcel, and Mr. Koons stated that's correct. Mr. Larry Weaver, project manager with Racey Engineering, stated his involvement with this is that they did the layout based off of the interpretation they had gotten on those Codes. They had done one layout with a single entrance showing 51 lots. He sent an email asking if he'd had a chance to look at it and the answer back was "Larry, we need to have a meeting about this ". At that meeting, they discussed about needing the additional entrance. They went back and laid out another roadway section in the lots with the two entrances. Minut@ c o k Page 1467 u eden g intyPi Pd7of Zoning Appealsmuteso Mr. Joe Brogan of Brogan Land Surveying stated that he was involved early on with this when Mr. Poe was talking about purchasing the land. He did a boundary survey of the entire parcel. When Mr. Poe and Mr. Koons spoke with Mr. Cheran and he informed them. that they needed to subdivide the south side of the road, Mr. Brogan asked Mr. Poe to make sure that by doing that he would not lose any rights in the subdivision. Mr. Cheran said no and when Mr. Poe told Mr. Brogan that it would not affect it, Mr. Brogan asked Mr. Poe does that mean that the 68 acres has no subdivision rights left. Reiterating that in the March meeting with Mr. Cheran, Mr. Brogan said Mr. Poe bought this land based off what you told him - that he would not lose any rights by subdividing that parcel. He saw three sets of plans showing 52 lots on 194 acres; it clearly says it. Mr. Brogan said to Mr. Cheran we don't subdivide in this County very often and that's why we came to you. After the email that said everything looked okay, Mr. Poe authorized him to stake the rough road layout. Mr. Robert Mitchell, Attorney, is appearing on behalf of the Zoning Administrator, the County's representative in interpreting the Zoning Ordinance. The Board of Zoning Appeals jurisdiction provides that you are authorized to hear appeals of administrative determinations made by the Zoning Administrator in the interpretation of the Ordinance, and variances. What's before you is an appeal of an administrative determination. That administrative interpretation was requested on behalf of the applicant by his counsel and you have in your agenda packet the written administrative determination made by Mr. Cheran, interpreting the Section of the Zoning Ordinance that is at issue. That has to do with determining the density on this 194 acre parcel of land. That's the issue before you and is the central issue. Mr. Mitchell further stated that Mr. Napier said there are two issues; how you interpret that ordinance, but he's also saying there's an issue about what they contend Mr. Cheran told them. Mr. Mitchell stated that Section 165 -52(A) has been on the books in Frederick County since 1991. It has been in the terminology that is currently in the Ordinance and the staff report lays out the basis for his analysis of that Ordinance. The fact of the matter is that in Frederick County in the RA District there is a maximum density permitted on any parcel of the equivalent of one unit per five acres. As shown in the staff comments, in applying this Ordinance, the County first takes a look at the plat that's been submitted and determines the number of acres and divides it by five, and that's what was done here. Mr. Cheran took the number of acres, which was 194 acres, divided by five, and the presumed density is 38 acres. But then there's a further limiting factor that when they passed the Ordinance in 1991, they were establishing in the RA District, in the future, the development would be limited to one unit every five acres. That's what you could expect for the future, so you have to look at what was the parent tract and if the parcel that's before you had been subdivided off of the parent tract, you have to look at the parent tract. We looked at the parent tract in this case and that was 262 acres and then you have to look which would yield 52 units. Has that parent tract been subdivided and lots created and in this case it had been subdivided into just the two parcels, but there hadn't been any subdivision on it. So the overall density is that you could still have 38 lots on the 194 acres which would leave the remainder of the 52 lots on the remaining parcel. What they're suggesting is that when you subdivide, you can transfer all those development rights onto the one parcel and leave the other parcel with zero development rights. The County does not have a transferable development rights ordinance. There's no basis in Frederick County to transfer development rights from one parcel to another. What this Ordinance contemplated is that there wouldn't be development in excess of one unit per five acres on any parcel or group of parcels. Mr. Mitchell would submit that there's no ambiguity about this Ordinance, there's no ambiguity about how it's been interpreted. It has been correctly interpreted by the Zoning Administrator and that specifically is the issue before you. Minute $o k Page 1468 Ueric pjnt j3crd Zoning Appeals mutes o u Mr. Mitchell stated that with respect to the issue about what statements may have been made by Mr. Cheran in the process, he would like to, with the Board's permission, ask Mr. Cheran some questions to focus the issue to expedite putting this information before you. Chairman Catlett stated that would be fine. Mr. Mitchell asked Mr. Cheran to address what they have testified about in the original meeting, apparently before they had purchased the property. Was there any discussion at that point about density and was there any discussion about density on only one portion of the property? Mr. Cheran responded it was the whole 262 acres that was discussed. Mr. Mitchell asked if Mr. Cheran was asked the question that if they divided the property, whether they could put the entire 52 acres on a portion of the property. Mr. Cheran said it was never brought up. Mr. Mitchell asked if Mr. Cheran had ever interpreted the Ordinance such that all of the development rights from the parent tract would go on one of the parcels. Mr. Cheran stated he never had, because that's not what the Ordinance says. Mr. Givens asked if the question was ever asked if the lots could be put on one side of the road as long as it was still the 262 acres. Mr. Cheran stated that wasn't brought up during any meetings. Hypothetically, it could have happened with a legislative action if it was the whole property. Mr. Givens asked if it had remained one lot and through the potential of some type of legislative action, all of the lots could have been on one side of the road. Mr. Cheran said it could, but it would have to be a legislative action. Mr. Mitchell asked Mr. Cheran, referencing the email, what was the subject of the discussion and what gave rise to that email and your reply? Mr. Cheran stated they had talked in depth about roads, because in the Subdivision Ordinance you can't have any road or cul -de -sac length greater than 1,000 feet. They were looking at the road issues and what Mr. Cheran sent back in the email was yes, the road issues looked fine. They were doing a loop road which is allowed in our Subdivision Ordinance and gets them out of another legislative action for cul -de -sac length. Mr. Cheran stated in the email that they needed to meet to talk about other issues. Mr. Mitchell stated they've attached a copy of the plat that came along with that email and he asked Mr. Cheran his response to that email was, "The plan with the roads looks good — give me a call ". Mr. Mitchell said when you say the plan with the roads, what were you referring to? Mr. Cheran replied he was referring to the roads. not the general layout at all. Minut@ to k Pag 1469 rederic tnt7 pL07 f "Coning Appealsmutesouy /, Mr. Mitchell said under the Subdivision Ordinance, a subdivision of this nature that has public roads, what is the first step in the subdivision process. Mr. Cheran replied the first step is if you want to submit a rural subdivision, you have to do a preliminary sketch plan which shows a general layout of the development. Once that's done, it goes to review agencies, namely VDOT and Public Works, staff reviews it, makes comments and sends it back. Once that review comes to the Planning Department with the fee, we officially review and comment on it. Mr. Mitchell asked if there is a checklist of things that have to be submitted with that and a fee that has to be paid and Mr. Cheran replied that's correct. Mr. Mitchell said when a preliminary sketch plan is submitted on a subdivision, is that the time in which the analysis under the Zoning Ordinance Section concerning density would be done. Mr. Cheran replied that's correct. Mr. Mitchell asked if a preliminary sketch plan was ever filed in this matter and Mr. Cheran replied no sir. Mr. Mitchell asked if a fee was ever paid with the preliminary sketch plan and Mr. Cheran responded no sir. Mr. Mitchell asked Mr. Cheran how long he's been the Zoning Administrator and Mr. Cheran replied five years. Prior to that, Mr. Mitchell asked how long he's been with the Planning Department and Mr. Cheran stated four years. Mr. Mitchell asked during that period of time, has your interpretation of the Ordinance reflected in your zoning administrative determination in this case been consistent with the manner in which you have interpreted this Ordinance in the past. Mr. Cheran replied that is correct. Mr. Mitchell asked Mr. Cheran, to his knowledge has this Ordinance always been interpreted that way by the zoning staff administratively since 1991 and Mr. Cheran said that is correct. Mr. Mitchell asked since you've been with the County and the Planning Department, has this Ordinance been so interpreted by the Board of Supervisors and Mr. Cheran stated that is correct. Mr. Mitchell asked Mr. Cheran, to his knowledge is this the manner in which the Board of Supervisors has interpreted this Ordinance since 1991 and Mr. Cheran replied yes. Mr. Mitchell stated it's clear what the proper interpretation of this Ordinance is; it's been a consistent administrative and a consistent governmental body interpretation, consistent with the way it was interpreted in this case. Therefore, on the central issue before you, Mr. Mitchell thinks it is clear Min ut@ $o k Pageg 1470 redene ytyp%r Zoning Appealsmutesou that the administrative interpretation of the density which should be applied to this tract was correct. With respect to the additional issue that's been raised, which is perhaps not even clearly within the domain of what's before you, they contend that Mr. Cheran said certain things before they bought the property. The law is clear. What's called estoppel doesn't run against a locality. What that means is if an administrator or employee of a jurisdiction makes a statement that's not correct under the Ordinance, the County is not bound by that verbal statement. They're not estopped from applying their Ordinances correctly if there's been some mistake or error made in interpretation of that. Mr. Cheran is clear in the fact that he never said that, but Mr. Mitchell's point is even if he said it, that does not bind the County and does not constitute a legal interpretation of that Ordinance. They have suggested in the application they have filed that they somehow have vested rights, vested in their ability to put 52 lots on this property. Virginia is clear on the vested rights law under Section 15.2 -2307 of the Code of Virginia, the legislature is codified which constitutes vested rights. In order to have vested rights, there has to be a significant affirmative governmental act. A statement by the Zoning Administrator is not a significant affirmative governmental act. The statute gives certain things that constitute a significant affirmative governmental act such as the governing body approves an application for rezoning for specific use, or the governing body of the Board of Zoning Appeals has granted a special exception or special use permit, or the Board of Zoning Appeals has approved an exception, or the governing body of some designated agency has approved a preliminary subdivision plat. It's governmental action that significant affirmative governmental action that gives rise to vested rights. There was no approval of this preliminary plat; they had never submitted the preliminary sketch. The County had never gone through the process to do the density evaluation pursuant to the normal procedures with the submission of a preliminary sketch. With respect to the email that they talk about having sent in the plat with all those lots shown, Mr. Mitchell said if you look at that and look at Mr. Cheran's response in light of what he said the discussion was about, he writes back and says the plan with the roads looks okay — call me. Mr. Mitchell submits that the density determination made by the Zoning Administrator was correct and there's no basis for vested rights or any legal basis for saying that this property can be developed into 52 lots, which is well in excess of the County Ordinance requirement of one unit for every five acres. Chairman Catlett asked Mr. Cheran as they look at the 194 acre parcel, the remaining acreage, does that need to stay at the percentage that it is at this moment. Mr. Cheran stated under the rural preservation subdivision, at least 40% must be kept contiguous with that parcel. You get one development right on it, but you can't divide it, add to it and can't take away from it. Chairman Catlett asked Mr. Cheran if he's saying it needs to remain 40% of the 194 acres and Mr. Cheran stated that is correct. Mr. Givens asked if it is 38 acres, is that 38 two acre lots plus one development right and Mr. Cheran stated that is correct. Mr. Napier stated he would like the opportunity to put Mr. Poe on speaker phone and let him recount his conversations with the Zoning Administrator. Mr. Napier would also like to point out the statute that Mr. Mitchell mentioned, he's going to read the most relevant part. "Nothing in this article of the Code of Virginia shall be construed to authorize the impairment of any vested right. Without Minn.ute ggook Pag 1471 Ili , pgtinty rd of Zoning Appealsmutesouy1 , p107 limiting the time rights might otherwise vest, a landowner's rights shall be deemed vested in a land use and such vesting shall not be affected by subsequent amendment to a Zoning Ordinance when the landowner obtains or is the beneficiary of a significant affirmative governmental act which remains in effect allowing development of a specific project, relies in good faith on the significant affirmative governmental act and incurs extensive obligations or substantial expense in diligent pursuit of the specific project and reliance on the significant affirmative governmental act." More specifically, the statute says, "For purposes of this section and without limitation, the following are deemed to be significant affirmative governmental acts allowing development of a specific project: The governing body or its designated agent has approved a preliminary subdivision plat, site plan or plan of development for the land owner's property and the applicant diligently pursues approval of the final plat or plan within a reasonable period of time under the circumstances ". Mr. Napier pointed out that the interpretation that all 52 lots could be put on the north side of the road on the 194 acre parcel is entirely consistent with the Frederick County Ordinance because you still can have the 40% in that lot. There's nothing in the Code which indicates otherwise. Also, Mr. Napier pointed out this wasn't an isolated plan that was sent to Mr. Cheran where he was just approving a small part of it; there were three specific discussions about development rights and which side of the road they could be put on. There were two specific plats that were given to Mr. Cheran showing the lot layout and he suggested alterations to the roads but not to the number of lots. At no time was it ever indicated that they couldn't do it. Mr. Napier is asking the Board to consider the entirety of this flow of conversations. Mr. Wells stated he's been in business for 37 years and he's been in Court before with wonderful lawyers and they asked him if he had anything in writing that substantiates what took place in the verbal discussion. Mr. Wells told them no, he didn't, and the Judge says it's not easy for me because it's a "he said, she said ". The conversations are wonderful and what Mr. Cheran said and what Mr. Poe heard is great, but there are two sides to every story. If Mr. Wells was developing those lots, he would have had a letter that said he had the right to do that. Mr. Napier stated in the absence of that, you have to look at the correspondence and documentation that did pass. Mr. Wells stated that he can look at the correspondence two different ways, from Mr. Cheran's standpoint and from the other standpoint. Mr. Perry stated that Mr. Cheran's email reply doesn't say it meets the requirements. Mr. Napier asked if it would be helpful to hear from Mr. Poe. Chairman Catlett stated the Board has not done that before if someone isn't present and she doesn't believe it's appropriate now. There was no one present who wished to speak in favor of this appeal. Mr. Walt Floyd, Mr. Mike Poole, Mr. Boyd Pitcock, and Mr. Tony Brill spoke in opposition to this appeal for density, environmental and transportation reasons. Chairman Catlett closed the public hearing portion of the meeting. Minuteo k Page 1472 redenc ,inti Bqr f Zoning Appealsmutesou7 Discussion Chairman Catlett stated that she has a concern where, if the general public is contacting the County, the average person should be able to rely on the information that they get there and when it's said that the County does not have to stand behind a comment, where else is the public supposed to go. She also has some concerns about the email where perhaps Mr. Cheran says that he was referring to the roads but also what sort of implied liability is there or responsibility is there to say, well the roads look good, however it appears you may have too many lots. Chairman Catlett sees a lot of questions in this situation. Mr. Givens tends to disagree with Chairman Catlett on staff's comments. Mr. Givens served some 33 years as a local government official and one of the things you try to do is be helpful to the public. Maybe sometimes you get yourself in trouble with comments that you're making. One of the things Mr. Givens sees is there is a preliminary plat procedure process that's set forth in the Frederick County Code and to his knowledge, that process was not even initiated. He's sure there were conversations and there were probably misunderstandings. He doesn't believe it was anybody's intent for this to happen. The one comment that Mr. Mitchell made that's more important than anything is how do we interpret this Section 165 -52(A) of the Ordinance? Is that residual parcel, the one lot which was broken off from the parent tract, is it entitled to the 38 lots under the Code or is it entitled to the full lots of the parent tract. Mr. Givens believes you've got to put a sense of reasonableness on any Ordinance and he doesn't see how you can apply any more than the 38 lots for this. Chairman Catlett stated that she knows that Mr. Cheran's position is that it's RA and that the minimum lots need to be five acres. She asked if there is any other legislative option that's available to the applicant? Maybe a rezoning? Mr. Cheran clarified there are three kinds of developments you can do in the Rural Areas. There's the traditional five acre lot, a family division where you can go as small as two acres and there's a rural preservation subdivision which Skyridge is looking to do. When you do a rural preservation subdivision, you have your densities and you have to leave at least 40% of that parent tract set aside. One to five is the density in the RA areas. This property is located outside the Urban Development Area and the Sewer and Water Service Area, and the policy of the Comprehensive Policy Plan from 2003 does not allow for that. The applicant can apply for it, but he doubts the Board of Supervisors would approve it. Mr. Givens made a motion to uphold the decision of the Zoning Administrator and Mr. Perry seconded the motion. The vote was a majority vote and the motion passed. PUBLIC HEARING Variance Request #07 -07 of Bobcat Builders for a 16 foot side yard variance on the right side and a 26 foot side yard variance on the left side, resulting in a 34 foot building restriction line on both sides, for the construction of a single family dwelling. This property is located on Lot 50, Plat 1, Section 32 in Shawneeland at the intersection of Capon Springs and Arbutus Trails, and is identified with Property Identification Number 69A- 1 -32 -50 in the Back Creek Magisterial District. Minute $o k Pag 1473 qt edei , Inty Qar Zoning AppealsmutesouZU ACTION — VARIANCE APPROVED Before proceeding, Chairman Catlett excused herself from this action and turned the meeting over to Vice Chairman Perry. Mr. Cheran presented the staff report. The applicant is requesting a 16 foot side yard variance on the right side and a 26 foot side yard variance on the left side, resulting in a 34 foot building restriction line on both sides, for the construction of a single family dwelling. With the current setbacks and the size of the property, there's no buildable area. Frederick County adopted zoning in 1967. The historical map shows this property was zoned Al (Agricultural Limited) in 1967 and the setback lines were 35 feet front and 15 feet on the sides. Frederick County amended its zoning in 1989 and changed the Al zoning district to RA, making the current setbacks for the property 60 feet front, 50 feet rear, 50 feet right side and 60 feet left side (corner lot). Mr. Cheran further stated that based on the small size of this property and the large setbacks associated with the RA zoning district, the applicant is requesting the 16 foot variance on the right side and the 26 foot variance on the left side. The majority of the properties located in the Shawneeland Subdivision are zoned R5 (Residential Recreational Community) and have a setback of 35 feet off both Capon Springs and Arbutus Trails, 25 feet to the rear and ten feet on the side. 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 lie 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. Mr. Cheran stated the applicant is seeking this variance in order to build a 32'x26' single family dwelling. Should this variance be granted, the building setbacks on this property would be 60 feet from Arbutus Trial (front), 50 feet from the rear and would change to 34 feet on both sides. It appears that this variance meets the intent of the Code of Virginia, Section 15.2- 2309(2) and this request may be justified. Ms. Brandon Jones stated they're asking for the variance in order to build a single family dwelling. With the size of the lot and the current setbacks, they can't build anything there. Mr. Shenk asked the conditions of the road. Ms. Jones stated that where this lot is there's a gravel road. Further back into the subdivision, it's pretty bad and you would need to cut in roads. This lot is easily accessible. Mr. Shenk asked if there's a Homeowners Association to take care of the roads and Ms. Jones replied she didn't know. Mr. Cheran stated that in Shawneeland, the Sanitary District takes care of all the roads there. Mr. Shenk stated it doesn't appear to be in Shawneeland and Mr. Cheran apologized and told Mr. Shenk that he's correct, it isn't in Shawneeland. Minut5 >o k la g 1474 ede Ic pyt arp f Zoning AppealsmutesoulJ Mr. Robert Priest of Bobcat Builders stated there isn't a Homeowners Association. The roads are terrible but accessible and the power lines are in. Vice Chairman Perry asked if the surveyed lots have the pins in place. Mr. Priest stated yes, it's been surveyed and perced. Mr. Calvin Combs stated that he has property across the road and the roads are terrible. There's going to have to be some help with the roads because only two people right now take care of the roads. Mr. Givens asked if the Board will have to consider a variance on each house that develops and at what point does the density come to a point where roads become a question. Mr. Cheran replied the Board just considers the variance request. Prior to building a house, the applicant will meet other requirements, and after so many houses are built on the property, under the E S Code, they've been making them cut in roads. Vice Chairman Perry closed the public hearing portion of the meeting. Discussion Mr. Scott made a motion to approve the variance request. Mr. Wells seconded the motion and the vote was a unanimous vote, with Chairman Catlett abstaining. PUBLIC HEARING Variance Request 908 -07 of Franklin and Candy Miller for a 23.5 foot left yard variance, resulting in a 26.5 foot left yard setback, and a 17 foot right yard variance, resulting in a 33 foot right side setback, for the construction of a single family dwelling. This property is located on Woods Mill Road (Route 660) in John Hepfer's Subdivision No. 1, Lot 3, and is identified with Property Identification Number 55A -1 -3 in the Stonewall Magisterial District. ACTION — REQUEST TABLED BY THE BZA UNTIL AUGUST 21, 2007 MEETING Mr. Cheran stated that the applicant, nor their representative, is present today. The applicant did not contact Mr. Cheran stating they would not be present. Mr. Scott made a motion to table this request until the regularly scheduled meeting on August 21, 2007. Mr. Wells seconded the motion and the vote was unanimous. Minut@ $o k Pag 1475 Qdenc ytj7 07 f Zoning Appealsmutesou C PUBLIC HEARING Variance Request #10 -07 of Jeffery Neff for a 15 foot side yard variance on both sides, resulting in side yard setbacks of 35 feet. This property is located in Lone Oak Subdivision, Lot 38, Block A, on the southern side of Virginia Drive (Route 710), and is identified by Property Identification Number 86B- 4 -A -38 in the Opequon Magisterial District. ACTION — REQUEST TABLED BY THE APPLICANT UNTIL AUGUST 21, 2007 MEETING Mr. Cheran gave the staff report. The applicant is requesting a 15 foot side yard variance on both sides, resulting in a 35 foot side yard setback on both sides, for the construction of a 52'x32' single family dwelling. Current setbacks for the property result in a small buildable area on the property. Frederick County adopted zoning in 1967. The historical map shows this property as being zoned A2 Agriculture General), and the setback lines were 35 feet for the fronts and 15 feet on the side. Frederick County amended its Ordinance in 1989 to change the A2 zoning district to the current RA Zoning District, making the setbacks 60 feet front, 100 feet rear and 50 feet on both sides. Mr. Cheran stated that with the current setbacks, this property does have a buildable area of 25 feet by 85 feet which would allow a house to be built on the property. The applicant has requested reduced setbacks in order to build a 52 foot by 32 foot house (1,664 square feet per level). The proposed dwelling could be reoriented on the property and reduced slightly in size in order to meet the requirements of the current RA setbacks. Staff also noted that the majority of the homes in this neighborhood are small, one story structures typically less than 2,000 square feet and it would be in keeping with the character of the existing development for this applicant to construct a similar dwelling. Therefore, this variance request may not meet the requirements for a variance under the Code of Virginia. 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. Staff would assert that a primary residential structure, of a reasonable size, could be built on the property with application of the current RA setbacks and, therefore, would recommend denial of this variance application based upon the above requirements of the Code of Virginia. Mr. Duane Brown of Marsh & Legge Land Surveyors, representative for Mr. Neff, stated that Mr. Neff bought this property in September 2005 with the intention of building a house at a future time. Mr. Brown stated the lot is actually 125 feet wide, which originally had 15 foot side yard setbacks, allowing 95 feet to build on. With the current setback of 50 feet side yards, it allows only 25 feet to build on. The house could be turned lengthwise, but the width of 25 feet would restrict what you could Minute Rok Page 1476 pr,denc nt g rd of Zoning AppealsMmutesof uy 7, 107 build and would not be consistent with the area. Mr. Neff could put a mobile home there, but again, that would not be consistent with the character of the area. Mr. Brown stated that Mr. Neff has found some house plans that he really likes. Unfortunately, with the request they have submitted to reduce the side yard setbacks from 50 feet to 35 feet, giving a building area of 55 feet width, the smallest house that he can find plans for that he really wants to build is in excess of 55 feet, so even the requested variance is not going to be able to accommodate what Mr. Neff is hoping to achieve. Mr. Neff would like to revise his request, still to reduce the 50 feet on the left side to 35 feet, but on the right side he would like to request a reduction from 50 feet to 22 feet which would be a reduction of 28 feet. Mr. Scott asked if Mr. Neff is going to build a two level house and Mr. Neff stated no. Mr. Neff further stated that he has connections to this subdivision and he would do nothing to harm this subdivision. The property has been in his family since the subdivision was built. The adjoining property behind his property, where the pond is located, is by the family business, and the three lots down from the one he owns is owned by his father's cousin. Mr. Neff further stated that he had a hard time getting a septic system to fit on the lot due to wells that some people have. Mr. Wells asked if the house Mr. Neff wants to build is 55 feet wide and Mr. Brown staled there are a couple of options that Mr. Neff is looking at as far as house plans. Mr. Brown said what they would like to have is a total reduction to 68 feet as far as building area. Mr. Perry stated the Board has an unwritten policy that if you don't have what you want to build for the Board to consider a variance, then the Board won't consider it. The Board isn't going to give you carte blanche on 15 or 30 feet of variance so that you can put any size house you want. Mr. Perry stated that's the reason that when you build a house you have it surveyed in. Mr. Perry told Mr. Neff that until he has a definite plan of what he wants to do, this Board is not going to say it'll be okay to build a 68 foot house when right now the lot, although it's not exactly what you want, is a buildable lot. Mr. Wells told Mr. Neff to pick a plan and then bring it back. Chairman Catlett asked Mr. Neff, based on what he's submitted, do you have the drainfield on this. Would you intend to put that in the front or the rear. Mr. Neff stated it has to go in the back. But he had to get an easement off the back property to put in the whole system, but you have to then consider the reserve area. Chairman Catlett stated that the Board generally would like to see what exactly you are asking for and also, while they would try to make it a buildable lot, keep in mind that the Board may not necessarily be looking to give you a variance to meet any future expansion, just what you're proposing to build. Mr. Neff asked if he can come back with plans for a larger house and it has a garage on it and he keeps it off and then comes back and adds it on later, is that possible. 91 Mr. Perry suggested that Mr. Neff pick a house that is as narrow as you can find and as long as you can find, because right now you have, technically, a buildable lot. pMinute 13o k Pagee 1477 M encK fy 7 f Zoning AppealsMinutesouU Mr. Givens stated that he did drive through the subdivision and he thinks what Mr. Neff is requesting is somewhat reasonable, but things like a garage, even though it's attached, can come off an L on the back or the front. These are the types of things that help narrow the width of the house. Chairman Catlett asked Mr. Neff if he would like for the Board to continue with their decision or would he like to have the opportunity to table this for 30 days and Mr. Neff requested it be tabled. Mr. Perry made a motion to table this action until the August 21, 2007 meeting. Mr. Shenk seconded the motion and the vote was unanimous. OTHER As there were no other items to be discussed, the meeting adjourned at 5:20 p.m. by unanimous vote. Respectfully submitted, Theresa B. Ca lett, Chairman Bev Dellinger, Secretary Minn,ute BBo kPag 1478 edertckguntyqr f Zoning Appealsmutes' JJu ,_ u