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BZA 06-19-07 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, June 19, 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. ABSENT: Kevin Scott, Shawnee District; and, Robert W. Wells, Member -At- Large. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Planning Technician; 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. Perry and seconded by Mr. Shenk, the minutes for the May 15, 2007 meeting were unanimously approved as presented. The cut -off date for the July meeting is June 20, 2007. PUBLIC HEARING Variance Request 906 -07 of Lori Roberts for a 20 foot rear yard variance, resulting in a rear yard setback of 30 feet. This property is located at 107 Gainesboro Road Route 684), and is identified with Property Identification Number 29 -A -60 in the Stonewall Magisterial District. ACTION — VARIANCE DENIED Mr. Cheran gave the staff report. The applicant is requesting a 20 foot rear yard variance, which would result in a 30 foot rear yard setback because the applicant constructed a dwelling four feet over the rear setback of the property. Section 165 -55 of the Frederick County Zoning Ordinance requires properties zoned RA (Rural Areas) District to have setbacks of 60 feet in the front and 50 feet on the sides and rear. Mr. Cheran further stated that on February 16, 2007, the applicant applied for a building permit 278 -2007) for a replacement dwelling. The new dwelling was to be placed in the same general footprint of the old dwelling with setbacks of 74 feet to the front, 65 feet on the right side, 75 feet on the left side and 56 feet in the rear. Section 165 -23H of the Frederick County Zoning Ordinance requires survey standards to establish the location of primary structures located five feet or less from the Minute Book Page Frederick County Board of Zoning Appeals 1449 Minutes of June 19, 2007 minimum setback required of the zoning district in which the property is located. This building permit did not require a setback survey as the dwelling was not within five feet or less from the minimum setback requirement of the zoning district. The applicant, during the construction phase, placed the rear of the dwelling 4.6 feet over the rear setback. On May 10, 2007, the Zoning Administrator received a complaint regarding the setback violation, and requested a stop work order from the Frederick County Building Official. On May 15, 2007, the property owner was contacted by Frederick County via telephone as to the setback violation and stop work order. The applicant applied for a variance after receiving the stop work order. Staff would note this application for a variance of 20 feet to allow for a rear deck is far greater than the violation of four feet of the rear setback. This application for a variance does not meet the requirements as set forth by the Code of Virginia 15.2- 2209(2) stated below. 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. Staff would recommend denial of this variance application as this violation of the setback requirements as set forth in Section 165 -55 of the Frederick County Zoning Ordinance is self - inflicted and does not produce an undue hardship as required by the Code of Virginia 15.2- 2209(2). Mr. Perry asked Mr. Cheran if the 4.6 feet over the setback line is the 50 foot line, not the 56 foot line that's on the building permit. Mr. Cheran responded that is correct. Mr. Perry said they're really talking about nine feet, six inches. Mr. Cheran stated the 56 foot line is where the applicant thought the setback was. Mr. Givens stated that in his staff report, Mr. Cheran indicated that because of the distances, it was more than five feet, a setback survey was not required, and yet the building permit says one was required. Mr. Cheran responded that on the building permit is a question "Survey Standards Required ?" where staff has circled "No" and initialed that a survey is not required. Mr. Givens pointed out that on the building permit it states "Setback Surveys Required ". Mr. Cheran stated he does not know why or how that statement is on a building permit, but Planning staff indicated by a circled "No" and initials that the survey was not required. We give people that five foot difference so that they have some leeway and won't have the expense of a survey. If it was within that five foot difference, they would have survey requirements and we would also have a second set of building permits that calls for two surveys; one at the beginning to set the footer in and one with the final house setting for the CO. Chairman Catlett asked on the building permit when it lists what the setbacks are, is that because those setbacks are what the applicant had indicated at the time the permit was approved. Mr. Cheran replied yes, when an applicant applies for a building permit they have to fill out an application and that's what they had on the initial application, Inspections Department puts it on the system and it goes from there to the Inspectors. Minute Book Page 1450 Frederick County Board of Zoning Appeals Minutes of June 19, 2007 Mr. Givens stated that the applicant says that the pegs they were digging by were off by three feet, and he assumes the pegs would have been the foundation. Three feet would have kept them inside the 50 feet. Are we hearing now that the original footprint may have not been 56 feet? Mr. Cheran stated that's hard to tell because the house has already been torn down. Mr. Benjamin Butler identified himself as the attorney for the applicant, Lori Roberts. Mr. Butler stated there was an old house located on this property and the applicant honestly thought she was within the 50 feet. The old house was more than 50 feet from that property line from what Ms. Roberts has told him. One of the motivations was to try to save a couple walnut trees. Apparently the problem was there was an old fence there and Ms. Roberts pulled from that old fence and Mr. Butler thinks someone, perhaps from Frederick County, came out and pulled and it was back 50 feet, but there's a dispute as to whether or not that fence was properly on the line. Mr. Butler further stated that when Ms. Roberts filed the application, she didn't understand that she was going for a variance for the footprint of the house and that's why the application came in as 20 feet, because of a deck. She thought it was one of these things by right that she would get it. Mr. Butler told the Board Members that she will and does amend her application to not ask for a 20 foot variance, but to ask for a variance of one foot, four inches on one end and on the other end it's about three feet, six inches. She's just asking for the footprint of the house. Ms. Lori Roberts reiterated that the 20 foot variance application is overzealous, she's just here to try to save the concrete wall at the back of the house, which is roughly under four feet. Ms. Roberts stated that the original 56 foot setback line was filled in by the group when she was applying for the building permit so she wouldn't have to get it surveyed. By walking the property, she felt that it would be no problem so when she got the permit, she staked out the house and she put the back wall, knowing and well aware of the 50 foot setback, right on 50 feet. She wanted to remain far back from Route 522 and save those two front trees. When Nova Con came to pour the footers, everything passed inspection and Ruckman Engineering came out to do the inspection and somebody pulled the tape and it looked to be 50 feet. They poured and the walls went up and at that time, someone called and said there was a problem so we stopped work. Mr. Givens asked where the pegs were and Ms. Roberts stated the pegs were where she pulled the tape from the old existing barbed wire fence in the back of the property. Mr. Perry asked how far from the foundation are the trees she wants to save and Ms. Roberts replied the trees are about 20 feet from the front wall. The porch is about ten feet off that wall, leaving a ten foot space between the trees and the front porch. The trees have huge overhanging limbs. Mr. Perry stated that the issue should be between the owner and the contractor that made the mistake, not the BZA at this time. Chairman Catlett stated that it looks like we've agreed that it's three feet, four inches. Mr. Cheran responded on the left side you've got 48.8, right side 46.6. Mr. Butler stated that there's only one solution, and it doesn't help in this case, but that is to require a survey every time somebody lays out a house. The City of Winchester has been requiring a Minute Book Page 1451 Frederick County Board of Zoning Appeals Minutes of June 19, 2007 survey for ten to 15 years. Chairman Catlett asked if anyone is present who would like to speak in favor of or opposed to the request. Ms. Libby Carter approached the podium. Ms. Carter and her husband are adjoiners and they strongly oppose this variance request. As no one else wished to speak, the public hearing portion of the meeting was closed. Discussion Mr. Cheran stated that the applicant applied for the building permit on February 16th and it was signed off by our department on the 28 of February. For the record, what Ms. Carter said is correct. The zoning ordinance did change the RA setbacks by the Board of Supervisors at their night meeting on February 28` Had the permit come in prior to that, they would have had to abide by the 100 foot setback because her property is more than five acres. Because the building permit was applied for and going through the review process prior to the Code changing, the setback is 50 feet. Mr. Cheran informed the members of this for clarification. Chairman Catlett stated that, for the record, the request now is actually for a three foot, eight inch variance. Mr. Givens made a motion to deny this variance request. Mr. Perry seconded the motion and it passed by majority vote. OTHER Mr. Cheran made the Board members aware that the Board of Supervisors is appealing the BZA's decision in the Joyce Myers case. The adjoining property owner, Arcadia Development, is also appealing the BZA's decision in this case. Mr. Cheran stated that an attorney will be hired to represent the Board of Zoning Appeals in this matter. As there were no other items to be discussed, the meeting adjourned at 4:15 p.m. by unanimous vote. Respectfully submitted, Theresa B. Catl tt, Chairman iBev Dellinger, Secretary Minute Book Page 1452 Frederick County Board of Zoning Appeals Minutes of June 19. 2007