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HomeMy WebLinkAboutBZA 03-18-08 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 March 18, 2008. PRESENT Kevin Scott, Chairman, Shawnee District; Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro District; Jay Givens, Back Creek District; and, R. K. Shirley, III, Opequon District. ABSENT: Eric Lowman, Red Bud District; and, Robert W. Wells, Member -At- Large. STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Amber Powers, Planning Technician; and, Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Scott at 3:25 p.m. On a motion by Mr. Shenk and seconded by Mr. Givens, the minutes for the January 15, 19 2008, meeting were unanimously approved as presented. PUBLIC HEARING Variance Request #01 -08 of All Points Warehousing, LLC, submitted by Greenway Engineering, for relief from a 25 foot side yard setback to bring into conformity five existing warehouse buildings: 185 Cole Lane, resulting in 7.9 foot setback; 187 Cole Lane, resulting in 16.1 foot setback; 189 Cole Lane, resulting in 16.3 foot setback; 191 Cole Lane, resulting in 16.3 foot setback; and, 193 Cole Lane, resulting in 16.2 foot setback. This property is located on the north side of Cole Lane (Route 762), approximately 1,000 feet south of Berryville Pike (Route 7), and is identified with Property Identification Number 54 -5 -5A in the Red Bud Magisterial District. ACTION — VARIANCE APPROVED Ms. Powers presented the staff report. Without resolution through a variance, the property's five existing one -story warehouses, which were previously approved by the County in 1983, would be in violation of the Frederick County Code. Ms. Powers further stated that All Points Warehousing began construction of these warehouses, following County approval, in 1983. After construction was begun, a subdivision was approved by the County Subdivision Administrator on September 15, 1983, and established the side property line that 1 created tax parcels 54 -5 -4A and 54 -5 -5A. The County approved the last of the warehouses to be built in 1984. i ute lo k Pag d f 1514 nutes oNarciL0g8Zoning Appeals Recognizing that the development of this property, while not in conformance with the County Code, nevertheless was reviewed by and approved by the County Zoning Administrator, the applicant is requesting a side yard variance in order to bring the developed property into full conformance while maintaining the existing conditions. If granted, this variance request would essentially serve as a clean- up exercise for the issues associated with the parcel without causing detriment to neighboring properties. 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. Powers stated that should this variance be granted, the building setbacks for this property would be 7.9 feet along 185 Cole Lane, 16.1 feet along 187 Cole Lane, 16.3 feet along 189 and 191 Cole Lane, and 16.2 feet along 193 Cole Lane. It appears that this variance meets the intent of the Code of Virginia and this request may be justified. Mr. Givens stated that Mr. Lawrence's letter indicated that 185 Cole Lane is legally nonconforming and it doesn't indicate that a side yard variance is needed. Should this Board act on 185 Cole Lane or is this one already taken care of? Mr. Evan Wyatt of Greenway Engineering identified himself as representing the applicant, All Points Warehousing. Mr. Wyatt stated that when staff looked at 185 Cole Lane, which is the front building, there was an issue of a 75 foot front BRL. Because the entire building already is in a front yard area, it's legally nonconforming. Greenway wanted to make sure if there was an issue where the corner of the building would be considered a side yard setback in lieu of a front yard setback corner, they wanted to cover it as part of this process. Mr. Givens asked if the Board is creating any conflict by staff saying it is all front and the Board approving a variance on the side. Mr. Wyatt responded the only reason they did that is because the ALTA survey shows the 75 foot front building restriction line, so it was more just to cover all bases. Mr. Wyatt stated this all started because All Points had the property in a position to sell. The property is actually separated into two parcels. The large warehouse building is on parcel 4A and the self- service storage facilities are on parcel 5A. The situation occurredbecause All Points was marketing both properties for sale; they have a purchaser and the condition of sale was that they would buy two properties. Normally what most purchasers do in a situation like this is get a firm like Greenway to prepare an ALTA survey, which is the most detailed survey, showing the boundary, the as -built conditions, easements and anything else that comes up in a title search. While preparing the ALTA, Greenway discovered there is a side yard encroachment with the five self - service storage buildings. They found that curious because the County has been diligent over time in requiring site plans for mute ggo k Pag 1515 Qdenck o rd Appealsmutesoarc development and what they found out was that there was a site plan that All Points got approved in 1982. The site plan showed the five self - service storage buildings; what was absent at that time was the side property yard, and after the County approved the site plan the following year, the Subdivision Administrator at that time approved a boundary survey which created the two lots and therefore struck what is now the side property line between those existing buildings. In other words, the subdivision came after the approved site plan. Mr. Wyatt further stated that what staff was comfortable doing was to say that things were nonconforming to a certain degree, but everything they were comfortable saying were legally nonconforming were things that were shown on the 1982 site plan. For example, over time Cole Lane has gotten to be a 60 foot right -of -way, but that happened after the site plan. Therefore, staff felt all the front yard setbacks were legally nonconforming. Staff could have said we would agree that the side property line is a nonconforming issue, but it was safer for them to say that since the subdivision occurred after the site plan approval, that's probably more of an issue that's in the hands of the Board of Zoning Appeals. There is also a case that can be applied for that's actually referred to in the application as an extraordinary situation. You have a situation that's out of compliance because of a County action and it's been in that condition for 25 years so its not been a detriment to adjoining properties. This technically is a clean-up exercise. Staff feels the variance is the safest way to proceed with this. Mr. Shirley asked if there was any thought given to removal of the subdivision line. Mr. Wyatt replied the lot consolidation was considered. The problem is the purchasers want to buy two separate tracts of land which have been in existence. Over time, if the purchasers decide to redevelop the site, the new building would need to meet the 25 foot side yard requirement. The problem is if you consolidate the lot into one, you can't go back and re- establish the side yard to sell that property in the future because the building obstruction is already there. Mr. Perry asked if 185 Cole Lane is a moot point, whether we leave it in or take it out. Mr. Wyatt responded the County has been calling it a legally nonconforming structure, so it's how you want to act on it. But since we're here, if there was ever an issue with the side property line, we would take care of it here. If staff is willing to grant that building nonconforming status, they can, but they didn't specify that as side property line non - conformity, which is why we asked for it. There were no public comments in favor of this variance. Mr. Jim Madden identified himself as a member of the American Legion Post. Mr. Madden stated they have some concerns. One concern is the very last building to the north. The elevation of the Post's land is about ten feet above the floor line of that building and when that was excavated, it's almost a vertical drop of ten feet. There's an old dilapidated wire fence that protects someone from falling over the bank. Mr. Madden further stated there is no stabilization of the bank and over time it may erode or wash away. If that happens, it's going to be eating into their land. The Post would like to have a written agreement with the purchasers that if the bank starts to wash away, they don't want to be liable to repair it or put a wall in there. The other concern Mr. Madden has is they were considering connecting onto public sewer and they don't have any way of doing this without a right -of -way either from Carlyle & Anderson or from the warehouse property owner. Maybe for some consideration for these violations over the years, they would be amenable to helping them out to find a closer location to hook onto sewer. MvItrrttute ggo k Pag 1516 1 edenck ant.armutesor Zoning Appeals M ac Mr. Cheran stated if these properties should change the redevelopment, this variance is only for the existing conditions there today. The public hearing portion of the meeting was closed. Discussion Mr. Shenk made a motion to approve Variance #01 -08. Mr. Givens seconded the motion and it passed by unanimous vote. OTHER Mr. Cheran talked about adopting an inclement weather policy into the Board of Zoning Appeals By -Laws. The Planning Commission and the Board of Supervisors, who hold public hearings, have adopted an inclement weather policy. The County rarely closes for inclement weather, but when it does, it's usually around 12 noon. Mr. Perry agrees totally and he feels that holding the meeting the next day, on Wednesday, at 3:25 may not be feasible because the weather may be as bad as or worse than on Tuesday. Mr. Perry feels that holding the meeting the next week, on Tuesday at 3:25, would be a better option. Mr. Cheran asked the Board to consider this and he will look over the State Code again because we do have certain time limits to act on hearings. Chairman Scott asked Mr. Cheran about the violation on Senseny Road. Mr. Cheran stated this is scheduled for a bench trial in the General District Court on April 15"'. Mr. Cheran explained that the original property owner put an entrance onto Senseny Road, which can't happen under Frederick County Code or Comprehensive Plan which identifies major collector roads such as Senseny Road. The property owner got a VDOT permit. VDOT deferred to the County, the property owner was cited, he appealed and lost the appeal, the property was sold, the new property owner got a C. O., and he put up the landscape buffer and fence. A couple of weeks later, he took the fence down and now we're going to Court again. Mr. Cheran stated that the Skyridge Court appeal has been moved back to May and Mr. Fuels may be coming back, too. The Board of Supervisors won in Circuit Court for denying Mr. Fuels rezoning. The BZA denied their site plan. Chairman Scott asked Mr. Cheran if there were any applications for next month. Mr. Cheran responded not at this time. i ute ggo k Pag 1517 e ertck O DN $ar Appealsmutesoarc111 As there were no other items to be discussed, the meeting adjourned at 4:05 p.m. by unanimous vote. Respectfully submitted, Robert Perry, Vice Chairman Bev Dellinger, Secretary Jr i ute BBo k Pa 1518 re %puntyQaroB Zoning AppealsmutesoMMarchh22SS