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BZA 09-18-07 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, September 18, 2007. PRESENT Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro District; Eric Lowman, Red Bud District; Kevin Scott, Shawnee District and, Robert W. Wells, Member -At- Large. ABSENT: Theresa Catlett, Chairman, Opequon District; and, Jay Givens, Back Creek District. 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 Vice Chairman Perry at 3:25 p.m. Vice Chairman Perry announced that Variance Request #15 -07 of Jeremy and Deborah Kidwell had been withdrawn and will not be heard. On a motion by Mr. Shenk and seconded by Mr. Wells, the minutes for the August 21, 2007 meeting were unanimously approved as presented. The cut -off date for the October meeting is September 21, 2007. Mr. Cheran stated that as of now, there are seven variances to be heard in October. PUBLIC HEARING Variance Request 411 -07 of James Marlow, submitted by Richard Marlow, for a 63.4 foot rear yard variance, resulting in a rear yard setback of 36.6 feet. This property is located off of Wardensville Grade (Route 608), on Globbers Knob Lane, Lot 15, and is identified by Property Identification Number 51 -A -78A in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Ms. Krempa gave the staff report. The property was zoned A -1 with setback lines of 35 feet for the fronts, 25 feet to the rear and 15 feet for the side yards. In 1989, Frederick County amended its Ordinance to change rural zoning classifications to the current RA (Rural Areas). The Board of t Supervisors again amended the setbacks for the RA District on February 28, 2007, making the current setbacks for this property 60 feet to the front, 100 feet to the rear and 50 feet on both sides. mutQ $o k Pag 1486 nutesxoSeptmear8o Z oIing Appeals 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. Ms. Krempa further stated that the applicant is requesting a 63.4 foot rear yard variance, resulting in a new setback of 36.6 on the rear property line. Should this variance be granted, the building setbacks for this property would remain 60 feet to the front, change to 36.6 feet in the rear, and remain 50 feet to both sides. Due to the odd shape of this lot and the topography of the lot, it appears that this variance does meet the intent of the Code of Virginia, Section 15.2- 2309(2). This request from the current setbacks of the RA zoning district may be justified. Ms. Krempa pointed out that this application does show that a proposed deck is included with the proposed size of the house and the applicant may be prepared to remove that deck from their application as decks do not meet the definition of a hardship. Ms. Krempa stated that this variance was tabled by the Board at the August 2007 meeting, as no one was present to represent the owner. Mr. Richard Marlow identified himself as representing Mr. James Marlow in this matter. Mr. Marlow stated they moved the house around every place they could on the lot to try to get it to fit, but the size of the house is rather small as it is, and shifting the house left, right or down the hill would have made it very complicated for a driveway. Mr. Marlow further stated he would like to have the deck on the house if possible. Mr. Lowman asked how high off the ground will the deck be and Mr. Marlow responded approximately three to four feet, depending on the elevation. Vice Chairman Perry stated that the Montgomery Engineering drawing shows the existing grade. Mr. Marlow stated that the grade right now is because a dozer came in and leveled the lot; the lot was so steep that the only way to lay the house out was to actually take a dozer and level the building site out and build the front yard up. Vice Chairman Perry asked if it's possible to move the house forward at all and Mr. Marlow responded maybe a foot or so, but the way the lot is right now, the garage was in the front of the house, but he moved it to the side. It's going to be really tight to get a vehicle in the side of the garage and have adequate room for the vehicle to be backed out down the driveway. Moving it down the hill further is going to make the driveway even steeper. Ms. Christie Donahoe approached the podium and stated she is an adjoining property owner. Ms. Donahoe asked, with the deck on the house, how close it would be to her property line. Mr. Lowman stated it's proposed at 36.6 feet. Vice Chairman Perry closed the public hearing portion of the meeting. pMinute $o k Papggg 1487 Miutes o Septdmber 8' 2789ing Appeals Discussion Mr. Shenk made a motion to approve Variance 911 -07. Mr. Lowman seconded the motion and it passed by unanimous vote. PUBLIC HEARING Variance Request #12 -07 of Eagle Place Ind., Inc., 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 -109 in the Stonewall Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran presented the staff report. He handed out copies of photos of the property taken this morning to the Board Members. The applicant is requesting a 14 foot rear yard variance resulting in a rear setback of 11 feet. The applicant built a deck without a permit over the rear setback line. 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 applicant applied for a building permit on July 7, 2007, but was not issued a permit due to a rear setback violation. The applicant had applied for a building permit for a single family dwelling with no deck. The minimal setbacks in the RP (Residential Performance) District are 35 feet front, ten feet on the sides and 25 feet on the rear. The applicant's building permit had the building setbacks of 38 feet front, 10.5 on the sides and a rear of 26 feet. The applicant was required to submit a house location survey as required by the Zoning Ordinance for any primary structure located five feet or less on a minimum setback. The survey plat for the single family dwelling did show a 25.3 foot rear yard BRL. 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. This application for a variance does not meet the requirements set forth in the Code of Virginia 15.2 -2309 (2) or the Frederick County Zoning Ordinance. Staff would recommend denial of this variance application. The strict application of the Frederick County Zoning Ordinance did not produce this undue hardship as required by the Code of Virginia. The violation of the setback requirements was self - inflicted as the deck was built without a building permit. Vice Chairman Perry asked if the deck was built at the same time as the house and Mr. Cheran replied it wasn't, not when the building permit came in. pM Pag 1488 pindute $o kMrntesept merr 8of2 oiing Appeals Mr. Russ Fowler identified himself as representing Eagle Place Industries, Inc. Mr. Fowler fe stated that this application arises because of the construction of the deck, inadvertently by the crew that Mr. Gibson employed while he was away on a trip. The realtor had suggested that because these properties were prepped for installation of decks, they would be more saleable and more aesthetically pleasing if they went ahead and put the decks on and so they did. Mr. Gibson came back to find that these decks had been put on and he subsequently applied for the variance. Mr. Fowler stated from the standpoint of the crew that put these decks on, at the suggestion of somebody other than Mr. Gibson, there was no indication looking at the properties that there was any enforcement or any rear setback requirement as to these properties. The photos you have may show this, but Mr. Fowler has some photographs that he handed out to the Board Members. Parcel 53 -AA -107 on Purcell, which is further toward Rt. 522, is set at 11.8 feet from the road and 6.1 feet from the right side and 53 -AA -118 on Foreman Lane is 1.45 feet from the rear setback line. Parcel 53 -AA -98 on Purcell is 12.8 feet from the road and 4.5 feet from the rear boundary. 53 -AA -97 on Purcell is 12.4 feet from Purcell and 5.6 feet from the left boundary, and 53 -AA -104 on Purcell is 22.3 feet from the front and 8.7 feet from the right side boundary. Mr. Fowler stated that the workers, without the guidance of Mr. Gibson, made the mistake of putting decks on the house that were over the 25 foot setback; however, it does not appear that rear setback lines are abided by or adhered to anywhere on Purcell or Foreman Lanes. Mr. Fowler stated that in the Code of Virginia 15.2 -2309 (2), instead of talking about undue hardship, it talks about unnecessary or unreasonable hardship, and he draws a distinction because he thinks, if the variance is not granted, it is an unnecessary hardship. The hardship is created inadvertently but it's a hardship nevertheless to tear down these decks. There are footers in the ground, it would be aesthetically damaging to the back of the house, it would cost unnecessary resources and it would make the property less saleable in an area that clearly needs upgraded, affordable housing. They maintain that there's a hardship. Also, the definition of variance talks about if such need for a variance would not be shared generally by the other properties. The other properties don't share a need for a variance because they're setting on the boundary line. Vice Chairman Perry told Mr. Fowler that those properties don't have any bearing on this case. Mr. Fowler stated that only in the sense that the people who put decks up were looking at these properties sitting on the boundary line and had no reason to suspect or believe that there were any setback lines in force and effect in that neighborhood. Vice Chairman Perry stated that the bottom line to this is your carpenters did an "oops ", I'm sorry I made a mistake and you're looking to this Board to correct it. Mr. Fowler is asking the Board to distinguish between an intentional violation of the ordinance, which ought not be permitted, and an inadvertent accidental violation of the ordinance, where there's no harm done, where it improves the value of the property and where the surrounding properties are sitting on the back boundary line that you're asking this property to sit back from. Vice Chairman Perry said he's not familiar with any of our rules for this Board to distinguish between an inadvertent and a purposeful violation. M 10 k Page 1489 M encQUnty Ioartl of ZZ ing Appealsmutesoeptemer8, 208/ Mr. Fowler said you can distinguish between a necessary and an unnecessary hardship. It would be an unnecessary hardship to enforce the ordinance under these circumstances. Mr. Fowler asks under these circumstances that the Board seriously consider and grant the variance as to #12 -07. Mr. Shenk asked, looking at the size of the lots that the houses were built on, could you combine lots to put a house on two lots to make this work. Mr. Fowler responded they have. There were four lots originally, and Mr. Gibson combined two and two to make two lots out of four. Mr. Scott asked if the houses are occupied and Mr. Fowler replied that one of them has been sold and there are occupants in the house. Mr. Lowman asked how they got an occupancy permit with a deck without a permit. Mr. Cheran responded that Purcell Lane is zoned RP and they are non - conforming lots. Eagle Place Industries did combine lots. Once you do a land use action, you don't revert back to the old zoning ordinance, you go by today's zoning ordinance. In this case, the rear setback at 25 feet, ten on each side and 35 feet to the front. On the building permit issued, if you look at the first survey in your agenda packet, you'll notice that Marsh & Legge had 36 feet to the front and 25.3 feet to the rear, but this is before the decks were built. Then it was 10.4 feet on the right and 10.5 on the left. The permit that was originally issued on July 21, 2006, Frederick County required setback requirements because they were at 26 feet. Mr. George Glosner approached the podium and stated that he lives at 1095 Foreman Drive, which is behind a parcel owned by the builder. Mr. Glosner said there may be issues in an old neighborhood that essentially has been forgotten by the County for a long time. He doesn't believe a new home has been built in that neighborhood in maybe 23 years. Mr. Glosner is not opposed to the new homes. He is concerned that this may set a precedent in the next lot; is it going to have the same kind of deck. If you allow it here, will you allow it again? Vice Chairman Perry stated the action taken on this request does not set any kind of precedent for anything next door or ten miles down the road. Vice Chairman Perry closed the public hearing portion of the meeting. Discussion Mr. Shenk stated it is his opinion that the way it is right now, if you don't have a house that is polished and with a deck on the back of a two -story split foyer, it is not marketable. It has to have that in order to be a saleable product. Mr. Shenk said in his opinion, that is the hardship that we need to look at here. Mr. Lowman stated there's no doubt that the decks improve the value of the property and the marketability of the house. What's most striking and alarming to Mr. Lowman is the construction of the decks without a permit. He understands it was a mistake and he hopes this wouldn't happen again. Mr. Scott asked Mr. Gibson what would be the process to remove the decks. Mr. Scott stated that's where he goes in determining undue hardship, whether it's self - inflicted or not. Mr. Gibson ute go k Pa g 1490 rt enck 99unt goardd of ZZQQ ing AppealsmutesoJepttuber18, 20U1} responded when they built the home, they put a band board on the rear of the house and limited access through a patio door on the rear of the house. They would have to remove the deck and do away with the footers, and put a small porch with a set of stairs down to a concrete landing. It would require a lot of labor to remove it and haul materials. Mr. Cheran reiterated that Mr. Gibson did a new land use action by combining two lots into one lot so the setbacks would 35, ten and 25. Vice Chairman Perry stated that he personally has a problem with this Board correcting somebody's mistake. He doesn't believe it's within the powers of this Board to do that. Mr. Wells stated that it's an "oops ", it's there, the next variance request coming up has an occupied dwelling, and to him it's all or nothing. This doesn't set a precedent if we allow these to remain. Mr. Wells made a motion to approve the variance requested. Mr. Shenk seconded the motion and the motion passed by majority vote with Vice Chairman Perry voting no. PUBLIC HEARING Variance Request 413 -07 of Eagle Place Ind., Inc., 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 POSTPONED BY APPLICANT, TO BE HEARD 10/16/07 UNDER OWNER'S NAME Mr. Cheran pointed out that this variance cannot be heard today because the house is occupied by new owners and they would have to apply for this variance. Mr. Gibson cannot speak on behalf of the property owners. PUBLIC HEARING Variance Request 916 -07 of Z. L. Metz Contracting, LLC, submitted by Urban, Ltd, for a 15 foot side yard variance on both sides, resulting in side yard setbacks of 35 feet, for the construction of a single family dwelling. This property is located on McDonald Road (Route 616), Lot 145, and is identified by Property Identification Number 51 -A -145 in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Mr. Cheran presented the staff report. Frederick County adopted zoning in 1967 and the historical map shows this property was zoned A -1 (Agricultural General). The property line setbacks at the adoption of the zoning ordinance in 1967 were 35 feet to the front and 15 feet to the sides; there wasn't a rear setback. Frederick County amended its ordinance in 1989 to change the setbacks to the current RA setbacks of 60 feet to the front, 50 to the rear and 50 on pMinutQ $o k Paygeg 1491 M nues geptemberrllgo 7oling Appeals both sides. Mr. Cheran further stated that the property is .767 acres with a width of 60 feet and a depth of 135 feet. The applicant is requesting a variance of 15 feet on both side yards from the current 50 foot side setbacks. If this variance is granted, it would result in a 35 foot side yard variance on both sides to construct a 22x34 foot single family dwelling with a 5x22 foot front porch. The properties adjacent to this property are less than five acres as required by the zoning ordinance. Therefore, this variance request would be in character to the adjacent properties and appears to meet the intent of the Code of Virginia, Section 15 -2- 2309(2). Should this variance be granted the building setbacks on the property would be 60 feet from McDonald Road (front), 50 feet to the rear and change to 35 feet on both sides. Mr. Ernie Tharp approached the podium and stated he lives adjacent to this property. Mr. Tharp stated that he doesn't want to lose 15 feet of his property. He doesn't want to give Mr. Metz 15 feet of his property and he doesn't want the house built there. Mr. Chris Blair of Urban Engineering identified himself as representing Mr. Metz. Mr. Blair stated that the lot is actually 114 feet wide and 300 feet deep, not 60x135. As it stands now, the ordinance allows for a 14 foot building envelope in the very center of the lot. They're proposing a 22x34 foot house which is a very small two -story house with a five foot front porch. It's basically the smallest product they could find that would be a family dwelling other than a single -wide trailer to fit on this lot. Vice Chairman Perry asked if the 22 foot wide house would hypothetically have to sit on a 14 foot envelope, what would happen if you swung the house around to where it was parallel with the side lots. Then that would only be an eight foot variance total, four feet on both sides. Mr. Blair stated if they were to rotate the house and make it parallel with the side lines, they would end up with approximately a three to four foot extended foundation in the basement, therefore eliminating a walk -out basement condition. With it rotated, it not only parallels the road frontage to make it more aesthetically pleasing, as well as given the grading, the relief it needs to be a standard walk -out basement. Vice Chairman Perry asked where in the basement would the walk -out be and Mr. Blair replied as it stands right now, it could be anywhere along the rear. Mr. Metz stood up and asked if he could explain to Mr. Tharp that he isn't taking any land away from him. Mr. Metz told him that the variance would be on Mr. Metz's land and it won't affect Mr. Tharp's land at all. Mr. Tharp stated that it was all right with him then to approve the variance. Mr. Shenk made a motion to approve Variance Request 416 -07. Mr. Scott seconded the motion and it passed by unanimous vote. 0 Niny > o Qk Pag 1492 Mntes of ptcmeargo 24ing Appeals 0 OTHER As there were no other items to be discussed, the meeting adjourned at 4?0 p.m. by unanimous vote. submitted, Robert Perfy, Vice Chairman L Bev Dellinger, Secretary Minn.ut@ go k Pag 1493 rderick ojunty oars J ing Appealsmutesoeptembbbbbber18, 2 8