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BZA 10-16-07 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 October 16, 2007. PRESENT Theresa Catlett, Chairman, Opequon District; Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro District; Kevin Scott, Shawnee District; Jay Givens, Back Creek District; and, Robert W. Wells, Member -At- Large. ABSENT: Eric Lowman, Red Bud District. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Planner l; Amber Powers, Planning Technician; and, Bev Dellinger, BZA Secretary. CALL TO ORDER Vice Chairman Perry advised that there will be a five minute delay in starting the meeting as the Chairman is on her way and there isn't a quorum until she gets here. The meeting was called to order by Chairman Catlett at 3:30 p.m. On a motion by Mr. Shenk and seconded by Mr. Wells, the minutes for the September 18, 2007, meeting were unanimously approved as presented. The cut -off date for the November meeting is Friday, October 19, 2007. Mr. Cheran stated that as of now, there is one appeal to be heard in November. PUBLIC HEARING Variance Request 913 -07 of Richard Lineburg for a 14 foot rear yard variance, resulting in a rear yard setback of 11 feet, for the construction of a wooden deck. This property is located on Purcell Lane (Route 721), and is identified by Property Identification Number 53A -A -111 in the Stonewall Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran stated that this application was postponed from the meeting of August 21, 2007 at the applicant's request and the September 18, 2007 meeting due to ownership issues. Mr. Cheran further stated that the Frederick County Building Department received a complaint on May 29, 2007, reporting a deck built on this property. The deck was failed because a building permit was not applied for. The builder applied for a building permit for a deck on July 7, 2007, but was not issued the permit due to a rear setback violation. The single family dwelling was built prior to the deck being built. pMindutc . 10 k Pag 1494 Minutes o u o lardIf oning Appeals The builder applied for a building permit ( #2097) for a single family dwelling with no deck on the permit on property that is zoned RP (Residential Performance). The minimum setbacks in this zoning district are 35 feet to the front, 10 feet to the rear and 25 feet on both sides. The builder's permit had building setbacks of 38 feet to the front, 10.5 feet on the sides and 26 feet to the rear. The builder was required to submit a house location survey, as required by the zoning ordinance, for any primary structure located five feet or less from any minimum setbacks. The setback survey placed the dwelling at 253 feet to the rear, which is within the limits. The builder has sold this property to Richard Lineberg and Mr. Lineberg is now applying for a 14 foot variance that, if approved, will result in a rear setback of 11 feet, to allow for this deck. 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. Mr. Cheran further stated that this application for a variance does not meet the requirements as set forth by the above Code and the Frederick County Zoning Ordinance, and staff would recommend denial of this application. The strict application of the Frederick County Zoning Ordinance does not produce an undue hardship and the violation of the setback requirements was self - inflicted by the builder, as the deck was constructed without a building permit. The builder, Mr. Jim Gibson, identified himself as representing Mr. Richard Lineberg in this matter. Mr. Gibson stated that a variance was granted last month for the property adjacent to this property. Mr. Gibson asks that the variance be granted in this case like it was last month in the prior request. Mr. Gibson offered his apologies for what has happened. He was on vacation for 24 days and his guys went out there and did it and Mr. Gibson is responsible for them. There were no public comments. Discussion Chairman Catlett stated that, unfortunately, she was not here last month so she wasn't part of the discussion that took place at that time. Chairman Catlett feels this request needs to be discussed as far as this Board is required to determine whether it's a hardship if the request is not granted and whether the property can be used for residential property without the request. Mr. Givens noted that he also was not here last month. In general, Mr. Givens agrees with the staff that the problem was self - inflicted, and he feels had he been here last month, he would have probably voted against granting the variance. However, this Board has voted to give the variance on the other lot and Mr. Givens feels that with this being a new owner, he bought this property in good faith, and denial of this variance would be a hardship to this owner that was not of his own making. In light of what the Board did last month, he feels there is justification that would be reason to grant the variance for this property. Minute R k Page 1495 pry ertc Quntyy Boarrd Qf Loning Appeals Minutes o Vctober 16, 2007 Chairman Catlett stated that she feels it needs to be pointed out that the State of Virginia does say that any action that this Board takes does not set a precedent for future actions. While Chairman Catlett understands Mr. Givens' comments, each request is to be considered on its own merits. Mr. Perry stated that this is clearly another case of "oops ", I made a mistake and coming before this Board to get it corrected. Mr. Perry has looked through all of our requirements, Code of Virginia and everything that he's been told about the BZA, and he cannot find anyplace, anywhere, anything that says that we are empowered to create somebody's mistake. Based on that, Mr. Perry made a motion to deny this request. Mr. Perry's motion died for lack of a second. Mr. Shenk made a motion to approve 913 -07. Mr. Wells seconded the motion and it passed by a majority vote, with Mr. Perry and Chairman Catlett voting no. Chairman Catlett stated that she will have to abstain from voting on the next six applications submitted by Bobcat Builders due to a possible conflict of interest. PUBLIC HEARING Variance Request ##17 -07 of Thomas Forrester, submitted by Bobcat Builders, LLC, for a 16 foot side yard variance, resulting in a side yard setback of 34 feet on both sides. This property is located in the Shawneeland Subdivision, Section 30, Lot 20, and is identified by Property Identification Number 69A- 1 -30 -20 in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED For clarification, Mr. Cheran stated that the staff reports for the next six variance requests are basically the same, but we do have to handle them one by one. They're all located in Shawneeland Subdivision in Duck Run, not in Shawneeland. Shawneeland is zoned R5 and Shawneeland Subdivision is zoned RA. Mr. Cheran presented the staff report. This area was zoned A2 when Frederick County adopted zoning in 1967 and setbacks at that time were 35 feet for the fronts, 15 feet on the sides, and no rear yard setback. Frederick County amended the zoning ordinance in 1989, changing A2 to the RA zoning district; the Board of Supervisors again amended its setbacks for the RA zoning district on February 28, 2007, making the current setbacks 60 feet to the front, 100 feet to the rear and 50 feet on both sides. Based on the size of this property and the large setbacks associated with the RA zoning district, the applicant is requesting a 16 foot side yard variance on both sides. Should the variance be granted, it would result in a 34 foot side setback on both sides. It appears that this variance meets the intent of the Code of Virginia, Section 15.2- 2309(2). This request from the current RA setbacks may be justified. Ms. Brandon Jones of Bobcat Builders identified herself as representing Mr. Forrester. Ms. Jones did not have anything to add to Mr. Cheran's comments. There were no public comments. Minute $o k PageB 1496 Kj ericK Qunty oatd 8 oning AppealsmutesoVctoer16, 2 Discussion Mr. Givens made a motion to approve Variance Request #17 -07. Mr. Scott seconded the motion and it passed by unanimous vote, with Chairman Catlett abstaining. PUBLIC HEARING Variance Request #18 -07 of Jimmie Campbell, submitted by Bobcat Builders, LLC, for a 16 foot right side yard variance and a 26 foot left side yard variance, resulting in a side yard setback of 34 feet on both sides. This property is located in the Shawneeland Subdivision, Section 32, Lot 100, and is identified by Property Identification Number 69A -1 -32 -100 in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran stated this variance request is on a corner lot, and corner lots have two fronts. The applicant is requesting a 16 foot right side yard variance and a 26 foot left side yard variance, resulting in a 34 foot setback on both sides for the construction of a 3206 single family dwelling. This request does meet the Code of Virginia Section 15.2 - 2309(2) and it would be justified to grant this variance request. Ms. Brandon Jones had no additional comments. There were no public comments. Discussion Mr. Scott made a motion to approve Variance Request #18 -07. Mr. Shenk seconded the motion and it passed by unanimous vote, with Chairman Catlett abstaining. PUBLIC HEARING Variance Request #19 -07 of Clarence Paradis, submitted by Bobcat Builders, LLC, for a 16 foot side yard variance, resulting in a side yard setback of 34 feet on both sides. This property is located in the Shawneeland Subdivision, Section 32, Lot 84, and is identified by Property Identification Number 69A- 1 -32 -84 in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran reiterated that this property is located in the Shawneeland Subdivision. The variance requested is a 16 foot side yard variance resulting in a side yard setback of 34 feet on both sides for the construction of a 32x26 single family dwelling. The RA setbacks that are applied result in a small buildable area. This variance request does meet the Code of Virginia, Section 15.2- 2309(2); a request from the current RA setbacks may be justified. Ms. Brandon Jones had no additional comments. ut@ Bo k P 1497 ager QQunt Boa d Qf7oning AppealsmutesoVctoer1 2U07 There were no public comments. Discussion Mr. Shenk made a motion to approve Variance Request #19 -07. Mr. Givens seconded the motion and it passed unanimously, with Chairman Catlett abstaining. Variance Request #20 -07 of Jerome Schams, submitted by Bobcat Builders, LLC, for a 16 foot side yard variance, resulting in a side yard setback of 34 feet on both sides. This property is located in the Shawneeland Subdivision, Section 32, Lot 28, and is identified by Property Identification Number 69A- 1 -32 -28 in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Ms. Krempa presented the staff report. The property is located in Duck Run, Shawneeland Subdivision. The variance request is for a 16 foot side yard variance, resulting in a side yard setback of 34 feet on both sides, for the construction of a 32x26 single family dwelling. Staff feels that this variance request is justified. Ms. Brandon Jones had no additional comments. There were no public comments. Discussion Mr. Givens made a motion to approve Variance Request #20 -07. Mr. Scott seconded the motion and it passed by unanimous vote, with Chairman Catlett abstaining. PUBLIC HEARING Variance Request #21 -07 of Helena Weaver, submitted by Bobcat Builders, LLC, for a 16 foot side yard variance on the left side and a 26 foot side yard variance on the right side resulting in a side yard setback of 34 feet on both sides. This property is located in the Shawneeland Subdivision, Section 32, Lot 61, and is identified by Property Identification Number 69A- 1 -32 -61 at the intersection of Bellwort and Cat Brier Trails, in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Ms. Krempa stated the applicant is requesting a 16 foot left side yard variance and a 26 foot right side yard variance, resulting in a 34 foot side yard setback on both sides for the construction of a single family dwelling. This is also on a corner lot and the property is located in the Shawneeland Subdivision. Ms. Brandon Jones had no additional comments. irute . o k PageB 1498 nutes o8c oUer lad $f Appeals There were no public comments. Discussion Mr. Scott made a motion to approve Variance Request #21 -07. Mr. Shenk seconded the motion and it passed by unanimous vote, with Chairman Catlett abstaining. PUBLIC HEARING Variance Request #22 -07 of Webster Lewis, submitted by Bobcat Builders, LLC, for a 16 foot side yard variance, resulting in a side yard setback of 34 feet on both sides. This property is located in the Shawneeland Subdivision, Section 32, Lot 112, and is identified by Property Identification Number 69A -1 -32 -112 in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Ms. Krempa stated this variance request is for property located in Duck Run, Shawneeland Subdivision. The applicant is requesting a 16 foot reduction on both sides, which will result in a 34 foot building setback on both sides, for the construction of a 32x26 single family dwelling. Ms. Brandon Jones had no additional comments. There were no public comments. Discussion Mr. Wells made a motion to approve Variance Request 422 -07. Mr. Perry seconded the motion and the vote was unanimous, with Chairman Catlett abstaining. PUBLIC HEARING Variance Request 423 -07 of Christopher & Lori Schubert, submitted by GreyWolfe, Inc., for a 49.9 foot rear yard variance, resulting in a rear yard setback of 50.1 feet. This property is located on White Pine Lane in Lincoln Estates, and is identified by Property Identification Number 51 -A -16F in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran presented the staff report. The applicant is requesting a 49.9 foot rear yard variance, resulting in a 50.1 foot rear yard setback, for the construction of a 28x40 single family dwelling and a 28.24 garage. This parcel of land was created in 1973. Frederick County adopted zoning in 1967 and the historical zoning map shows the property as being zoned A -2 Agricultural General). The property setbacks at the time of adoption of the ordinance were 35 feet front and 15 side yards, with no rear setback. Frederick County amended its zoning ordinance in 1989 to change the A -2 district to the current RA district. The Frederick County mutenck QQu g k Pag 1499 redent %oa . d f ZZoning AppealsmutesoUcto16, 2$07 Board of Supervisors amended the ordinance again for RA setbacks on February 28, 2007, making the current setbacks for this property 60 feet to the front, 100 feet to the rear and 50 feet to both sides. Mr. Cheran stated that the 100 feet to the rear has to do with if you're active agriculture or have an acreage of above six acres. Based on the narrowness of this lot, the applicant is requesting the variance on the rear setback to construct a 28x40 single family dwelling with a 28x24 attached garage. The current RA setbacks, if enforced, would eliminate a buildable area on this lot. If granted, this variance would result in new setbacks of 60 feet to the front, 50.1 feet to the rear, 100 feet on the left and 50 feet on the right. It appears that this variance meets the intent of the Code of Virginia, Section 15.2- 2309(2). This request from the current RA setbacks may bejustified. Mr. Cheran stated that Mr. Gary Oates of GreyWolfe Land Surveying is here to represent the applicant. Mr. Gary Oates stated that the property to the left, the Phelps property, is greater than six acres so there's a 100 foot setback that deletes the 60 foot setback you normally would see from White Pine Lane. Mr. Givens asked if all the setbacks are established because it's adjacent to property and not to a public roadway and Mr. Oates stated that's right. Mr. Oates stated that his clients bought the property in 2004, obtained a drainfield and well permit, and while getting ready to build their house, found out they basically had a 10 foot wide strip to build in. The area on the plat that shows the well site, from that point on it drops down over a considerable grade. The house has to be somewhere between the proposed well site and White Pine Lane as far as a building site. There were two citizen comments. Mr. Mark Phelps spoke on behalf of his father, Mr. Gerald Phelps. Mr. Phelps stated they are a small farm and Mr. Gerald Phelps basically opposes anything that's going to influence his property. Mrs. Swainer stated she owns Lot 1, Section D, and Lots 12 and U. Mrs. Swainer would like to know how this is going to affect Lots 12 and 13. Mr. Perry stated that what the Board does on this request doesn't have any affect at all on those properties. Chairman Catlett stated they actually don't need a variance for the portion of the property that adjoins Mrs. Swainer's property. Discussion Mr. Wells made a motion to approve Variance Request #23 -07. Mr. Shenk seconded the motion and the vote was unanimous, ppMinut@ l o Qk PageB t 1500 Minutes o Vc lab Z ooing Appeals Is OTHER Mr. Perry requested that on future sketch plans for proposed setback variances, he would like to have the front, rear, left and right delineated. Mr. Cheran responded he will see to that. As there were no other items to be discussed, the meeting adjourned at 4:10 p.m. by unanimous vote. Respectfully submitted, Theresa Catlett, khairman Bev Dellinger, Secretary mute >o k Pa 1501 rederic Aunty er oa t d 8 Toning AppealsmutesoVctobg, 2