Loading...
BZA 11-20-07 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 November 20, 2007. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro 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. Perry and seconded by Mr. Shenk, the minutes for the October 16, 2007, meeting were unanimously approved as presented. The cut -off date for the December meeting is today, due to the Thanksgiving holiday. Mr. Cheran stated that as of now, there is one variance to be heard in December and the Bylaws will be approved and adopted at the January 2008 meeting. PUBLIC HEARING Appeal Application #24 -07 of Pearl Underwood, to appeal the determination of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance pertaining to Section 165- 25(B), Lot Requirements. The subject property is located at 521 Marple Road (Route 654), .08 miles from Route 522 North, and is identified with Property Identification Number 51 -A -117 in the Gainesboro Magisterial District. ACTION — APPEAL DENIED, ZONING ADMINISTRATOR'S DECISION UPHELD Mr. Cheran presented the staff report. The applicant is appealing the decision of the Zoning Administrator as to the number of dwellings on a lot. Mr. Cheran further stated that the applicant was cited on September 17, 2007 by Frederick County for having two dwellings located on this property located at 521 Marple Road; the property had an existing dwelling prior to May 2004. The applicant applied for a building permit, #853 -2004, to construct a new dwelling on this property, and for a change of use permit, 4858 -2004, for the existing dwelling by removing the kitchen so the structure could be used for storage. The Zoning Administrator signed both permits on May 5, 2004, and noted on muteokK Pag ar 1502 n oI Noovt m etl0o oning Appeals permit #868 -2004 (change of use permit) to confirm that the kitchen is removed. Acceptance of these permits acknowledged that the change in use of the existing dwelling to a storage building was necessary in order to construct the new dwelling. No new dwelling should have been occupied before the change of use condition was met by removing the kitchen and changing the pre - existing dwelling into a storage building. The Frederick County Inspections Department had a follow -up inspection on November 7, 2005 of the property to confirm that the kitchen was removed from the pre- existing dwelling. No one was at home and the applicant did not schedule any other follow -up inspections. The property owner failed to comply with the original issuance of the building permit by not removing the kitchen from the pre -. existing dwelling thereby changing the structure's use from a dwelling to a storage building. Section 165 -25(B) of the Frederick County Zoning Ordinance states, except where specifically allowed, no more than one dwelling shall be allowed on a lot. A separate entrance, together with separate equipment including a sink, stove or other kitchen or sanitary facilities shall be prima facie evidence that separate occupancy exists and that a separate dwelling exists. The Zoning Administrator issued building permit approval for the new dwelling contingent upon removal of the pre - existing dwelling from the property. Mr. Cheran pointed out that there's a correction order in the agenda to confirm the kitchen was removed from the pre- existing dwelling and no one was home. The prima facie evidence has been established by the fact that the Zoning Administrator required confirmation that the kitchen was to be removed for the change of use permit and this has not happened. Therefore, the property is in violation of the Frederick County Zoning Ordinance. Staff is requesting to affirm the determination of the Zoning Administrator regarding the number of dwellings on a lot. Ms. Pearl Underwood identified herself as owner of the property. Ms. Underwood presented her account of what happened by stating that she contacted Patrick Davenport, former Zoning Administrator, in May 2004 regarding obtaining a sewage permit for the small house and he indicated that she needed to have a finalized construction. Ms. Underwood continued that the construction was finalized in June 2004 and she met again with Mr. Davenport and filled out a change of use permit to change that from a storage shed to an accessory dwelling. Ms. Underwood met with Mr. Davenport on numerous occasions and he indicated that in order to do that she would need to have insurance on both homes, the revised plans for the primary house had to be changed from a three bedroom to a two bedroom to accommodate the pre- existing house, and the square footage of the small house had to be less than 25% of the primary house. She had to submit drawings for the floor plans, the room sizes for the small house and also the plans for the primary house. Once all that was submitted to Mr. Davenport, he said she could go ahead and submit a sewage permit for the small house. Ms. Underwood got an easement letter from Mr. Braithwaite for the septic permit for the small house. When the septic permit was approved, in August 2004, she submitted the drawings she received from this building and took those to Mr. McDonald and he installed the septic for the small house. Ms. Underwood stated that in September they came to inspect the septic for the small house and at that time no one indicated they needed to inspect to see if the kitchen was removed because they had to fill up the tanks with water and they had to obtain a generator in order to make sure that the system itself was working. They got an occupancy permit in October for the main house and in January she got Ni ute g k Pag% 1503 nes orNotembear of ing Appeals a letter from Frederick County stating that the property taxes had doubled. In 2005, she found a note on the door that the Inspector had been there to inspect the property. She did contact the Inspections Department and was told that the inspection was for the little house because the original inspection in 2004 was never completed. She indicated that she had filled out a change of use permit and was told that she didn't have to remove the kitchen because she had also obtained the septic and water for the small house. In February 2007 Mr. Nichols of Nichols Construction contacted her and indicated that they needed to have someone there to inspect the little house. She told Mr. Nichols that at no point in time have any of the doors in the small house been locked. She said her son did reside in the house for three months. In February 2007 Ms. Underwood filled out another change of use permit and she left several messages with Mr. Cheran regarding the permit, but she was not contacted by him. In March 2007 she met with Gene Fisher regarding what she needed to do and asked for his assistance. Mr. Fisher indicated that she needed to contact John Trenary, which she did. Mr. Trenary told her he would check into the matter and let her know. In September she received a letter from Dana Johnston regarding the fact that she would have to file an appeal. Chairman Catlett told Ms. Underwood that in the Board's agenda they have a copy of the building permit for the new home and a copy of this one where this one specifically says change of use — changing house to storage building. Chairman Catlett asked if she ever received a building permit to change it to an accessory dwelling. Ms. Underwood responded that she received a permit for the sewage which she thought was the same thing. Mr. Shenk stated we have a copy of a correction order in the agenda that shows a date of November 7, 2005 where they tried to do the inspection. Mr. Shenk asked Ms. Underwood if they notified her ahead of time they were going to do the inspection and she responded no. Mr. Givens asked Mr. Cheran, not knowing whether a change of use from storage to accessory dwelling can be approved or not, is there a request in now to change the use from storage to an accessory dwelling. Mr. Cheran stated from the records we have, he would have to say no. If they applied today to do a change of use to have a second dwelling of 25% less than the main dwelling, we could take a look at that, but that has not happened as of today. Mr. Givens asked if there has been no approval of changing the use from storage to accessory dwelling, he understands the ruling Mr. Cheran did, but if there's an application made to change from storage to accessory dwelling, will this all just go away. Mr. Cheran stated if it meets the conditions and it's approved, we would have no issues. Furthermore, not saying Ms. Underwood didn't talk to Mr. Davenport, there are no records from Mr. Davenport, like a letter of determination or certification, other than the building permit signed by Mr. Davenport to confirm that the kitchen was removed. Mr. Perry stated that as of this minute today, there is an issue because we do not have an application to change the use from storage to accessory. The building permit in the Board's agenda says change of use, changing house to storage building and confirm kitchen is removed. This is the issue we're looking at today. Chairman Catlett asked Mr. Cheran if the application for an accessory building is done administratively through the Planning Department and Mr. Cheran responded it would go through the building official and Mr. Cheran would have to sign off on it. Prior to signing off on it, Mr. Cheran would have to check the square footage of the original structure and she would need a CO for that building. n ute o k Paggg dd 1504 e, tes remberr20oS689ing Appeals Mr. Perry asked if the issue here is that we do not have an application to change the small house from a storage building, which would be granted if the kitchen was removed, back to an accessory building. Mr. Cheran responded yes. Mr. Perry stated that if the kitchen was not removed, then the building permit for the new house was not qualified and Mr. Cheran replied that Mr. Perry is right. There were no public comments and the public hearing portion was closed. Discussion Mr. Shenk made a motion to uphold the decision of the Zoning Administrator, thereby denying the appeal. Mr. Scott seconded the motion and it passed by unanimous vote. OTHER As there were no other items to be discussed, the meeting adjourned at 4:10 p.m. by unanimous vote. Respectfully submitted, J-&- cc,4— Theresa Catlett, 0-hairman ti Bev Dellinger, Secreta mute )o k Pa 1505 n o Novemberrtl0of6QDing Appeals