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HomeMy WebLinkAboutBZA 12-15-09 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia December 15, 2009 3:25 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of November 17, 2009 PUBLIC HEARING 3) Continuation of Appeal Application #02-09 of Royston Eshelman Properties, LC, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pursuant to Frederick County Zoning Ordinance, Section 165-101.07 Compliance required; required permits, and Section 165-401.02, Permitted uses. The property consists of the entire portion of property contained in Frederick County, Virginia, located at 3700 Stonewall Jackson Highway, White Post, Virginia: such property is described in a deed from Audrey F. Funkhouser, Executrix of Charles C. Funkhouser, ct al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the CIerk of Court of Clarke County, Virginia, Deed Book 78 at Page 33, containing 5.13 acres more or less. 4) Other MEETING 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 17, 2009. PRESENT: Kevin Scott, Chairman, Shawnee District; Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro District; Jay Givens, Back Creek District; R. K. Shirley, III, Opequon District; and, Robert W. Wells, Member -At -Large. ABSENT: Eric Lowman, Red Bud District; STAFF PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; Dana Johnston, Zoning Inspector; and, Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Scott at 3:25 p.m. and he determined there is a quorum. - On a motion made by Mr. Givens and seconded by Mr. Shenk, the minutes for the October 20, 2009, meeting were unanimously approved as presented. Chairman Scott asked Mr. Cheran what is on the agenda for next month. Mr. Cheran responded that Friday, October 20"' is the cut-off date and as of today, there are no applications pending. PUBLIC HEARING Appeal Application #02-09 of Royston Eshelman Properties, LC, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pursuant to Frederick County Zoning Ordinance, Section 165- 101.07 Compliance required; required permits, and Section 165-401.02, Permitted uses. The property consists of the entire portion of property contained in Frederick County, Virginia, located at 3700 Stonewall Jackson Highway, White Post, Virginia: such property is described in a deed from Audrey F. Funkhouser, Executrix of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of Court of Clarke County, Virginia, Deed Book 78 at Page 33, containing 5.13 acres more or less. ACTION — APPEAL TABLED UNTIL DECEMBER 15, 2009 Mr. Cheran presented the staff report. Mr. Cheran pointed out that the staff report references two properties, but it is only one property. A recent survey done by the applicant, made available to staff ��rr BB 1523 M nui s o Novt mberr i7oW4ing Appeals after the agenda was mailed, cleared up exactly where the property is located, and Members have been provided with a copy of the survey. Mr. Cheran continued that the applicant believes the Zoning Administrator's interpretation of Frederick County's zoning ordinance is incorrect and does not take into account that the activities that are occurring on this property would be allowed by a Conditional Use Permit (CUP). The use "flea market" is not, however, a listed use in the zoning ordinance which would be allowed under a CUP. The applicant contends that any definition not specifically listed within the definitions of the zoning ordinance will be determined by the most recent edition of Merriam -Webster's Dictionary. The dictionary definition describes a flea market as an "open air market for second hand articles and antiques", and the applicant believes the flea market operating on this property is an umbrella concept which mirrors Frederick County's definition of a country store, which is an allowed use in the RA zoning district with an approved CUP. Mr. Cheran reiterated that the Frederick County Zoning Ordinance does not provide for flea markets anywhere as a permitted or conditional use. Staff noted there are other activities taking place at this site which include, but are not limited to, food preparation and resale of merchandise such as CD's, clothing and grocery items, but not antique merchandise. These uses are much broader in terms of what a county store will have. The applicant also puts no limitation on types of goods that could be sold on this property at any given time. Mr. Cheran has provided Members with a copy from the applicant of some of the rules and regulations and types of vendor tables, and this is much broader than Frederick County's definition of a country store. Mr. Cheran clarified that the uses allowed by a Conditional Use Permit is not an avenue to resolve this violation. A CUP is used for land use actions and approved by the Board of Supervisors. The zoning ordinance states what uses are allowed in the various zoning districts and you cannot issue a Conditional Use Permit for more than one use on a piece of property and you cannot have multiple uses attached to a Conditional Use Permit. Also, a flea market is not a listed use in the zoning ordinance and, therefore, cannot be acted upon. Staff is requesting to affirm the decision of the Zoning Administrator in the administration and interpretation of the Frederick County Zoning Ordinance, Chapter 165, Section 165-101.07 and Section 165-401.02, undocumented structures and the presence of commercial activities as an allowed use in the RA zoning district. The use shall be discontinued and the illegal structures removed. Mr. Givens asked for clarification on exactly which structures are implicated on the new survey. Mr. Cheran pointed out the subject structures. Mr. Givens stated the line that bisects the property appears to be a property line, not the Frederick County line, and seems to include five structures, not three. Mr. Cheran explained it is a property line. Mr. Shenk asked how long the flea market has been in business, Mr. Cheran replied that the applicant provided a brochure that states they were established in 1985. However, it is not known if the property located in Frederick County was included in the whole flea market concept or if it was entirely in Clarke County. Frederick County adopted zoning in 1967, making this property RA, and that's what staff has to abide by. And in 1967, when this property was considered Al or A2 zoning, a flea market was not an allowed use. Since food is being prepared on the site, Mr. Perry asked if the proper health permits are in place. Mr. Cheran stated that on the Frederick County side, he does not believe they are, and he can't answer for the Clarke County side. �r B 1524 Minutes o N vt m eartl7o�660ing Appeals The surveyor, Mr. Joe Brogan, answered that the 1.84 acres in question is taxed in Frederick County and his office showed the line between Frederick and Clarke County as best they could based off the tax maps. As far as whether there are three or five structures in Frederick County, it was determined that the applicant or his representative would have to research Clarke County's records for building permits. Mr. Shirley asked Mr. Light if his client has been paying taxes on the 1.84 parcel to Frederick County. Mr. Light replied yes, he has been paying taxes to Frederick County. Chairman Scott asked for anyone to come forward who would like to speak for or against this appeal request. Six citizens and the applicant spoke in favor of the application. Chairman Scott closed the public hearing portion of the meeting. Discussion Chairman Scott stated that Mr. Light had requested the Board table this appeal application. He asked Mr. Cheran to assist the Board's understanding of what they are encumbered to do today. Mr. Cheran stated that per the State Code and the County Code, under Frederick County Code, Section 165-1001.02 Powers and Duties, an appeal shall be decided within 60 days. Mr. Light stated this may be a waivable issue, because the only one who has standing to object would be the applicant, and the applicant is the one requesting it be tabled. There was discussion concerning where the buildings in question are located and the property lines. Mr. Cheran assured the Board that the surveyor, Mr. Brogan, had accomplished and sealed this survey in good faith and trust. Mr. Cheran further stated that if they had moved the uses and structures on the 1.84 acre property in Frederick County to Clarke County within 30 days, we would not be here today. And in conducting research on the site, it was noted that the Health Department has no knowledge of food preparation and Frederick County has not issued any business licenses for operations located on the 1.84 acre. Mr. Light stated that he doesn't want this to be read so broadly as to say that his client can't file for a Conditional Use Permit. Mr. Cheran cited an example as a way of explanation. If someone came into the Planning Department and asked if he could operate an antique shop, would the accessory uses to that be allowed that are currently happening at the flea market now. The Conditional Use Permit is for one use, not multiple uses. Mr. Cheran brought the discussion back to the issue of tabling. He said there is some leeway. The State Code asks if anyone is harmed by delaying the decision and no one will be harmed. In that case, the Board of Zoning Appeals may rule to table this application until the next meeting date. Mr. Wells commented that this Board has to make decisions based on boundary lines, even though we may like to see it a different way. If he was forced to make a decision today, Mr. Wells would have to say it's not a permitted use and he would find in favor of the Zoning Administrator. Frederick ounty 1oartl S686ing Appeals 1526 Minute o Novem er 7, U Hopefully, this will be worked out within the next 30 days. Mr. Shenk made a motion to table Appeal Application #02-09 of Royston Eshelman Properties, LC, be tabled until the next BZA meeting on December 15, 2009. Mr. Shirley seconded the motion and it was unanimous. vote. Other As there were no other items to be discussed, the meeting adjourned at 4:50 p.m. by unanimous Respectfully submitted, Kevin Scott, Chairman Bev Dellinger, Secretary F� C B 1527 Mims es ©f Nov mberr 7 684ing Appeals 4�G C APPEAL APPLICATION #02-09 �a ROYSTON ESHELMAN PROPERTIES, LC Staff Report for the Board of Zoning Appeals ' Prepared: December 4, 2009 "_. Staff Contact: Mark R. Cheran, Zoning Administrator This report is prepared by the Frederick County Plan it ingStaff to provide information to the Board of Zoning Appeals to assist then in making a decision on this request. It may also be useful to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: November 17, 2009 — Tabled until December 15, 2009 Meeting December 15, 2009 — Pending STAFF UPDATE OF NOVEMBER 17, 2009 A public hearing was held at the November 17, 2009 meeting. Chairman Scott opened and closed the public hearing portion of the meeting, during which time several citizens spoke. After discussion by the Board, the applicant's attorney and the Zoning Administrator, the applicant's attorney requested that this request be tabled and the Board unanimously voted to table this appeal request until the December 15, 2009 meeting. LOCATION: The subject property is located at 3700 Stonewall Jackson Highway (Route 277) near the intersection with Front Royal Pike (Route 522 South). MAGIS'T'ERIAL DISTRICT: Opequon PROPERTY ID NUMBERN: 87-3-B and 87-3-131 PROPERTY ZONING & USE: Zoning: RA (Rural Areas) District Land Use: Illegal Outdoor Commercial Activities ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) East: State Route 522. South: RA (Rural Areas) West: RA (Rural Areas) Land Use: Residential Land Use: State Highway Land Use: Residential Land Use: Vacant APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance in determining compliance and permitted uses in the RA District. Appeal Application #02-09, Royston Eshelman Properties, LC December 4, 2009 Page 2 REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to undocumented structures under Section 165-101.07 Compliance required; required permits, and the presence of commercial activities, under Section 165-401.02 Permitted uses. STAFF COMMENTS: Section 165-401.02 of the Zoning Ordinance provides for permitted land uses in the RA Zoning District. Outdoor commercial activities, i.e., flea markets, are not included as a permitted use in the RA Zoning District. The applicant was cited under the above -referenced section of the Frederick County Zoning Ordinance for operating a business not perinitted in the RA (Rural Areas) Zoning District as well as under Section 165-101.07, for constructing structures without approved building permits. The applicant concedes that the term "flea market' is not defined in the Zoning Ordinance as a permitted use in the RA Zoning District. However, the applicant contends that any definition not specifically listed within the definitions of the Zoning Ordinance will be determined by the most recent edition of Merriam -Webster's DictionM. The Merriam -Webster's Dictionary describes a flea market as: "open air marketfor second hand articles and antiques." The applicant believes that a flea market is an umbrella concept that includes several different vendors selling a variety of goods, i.e., antiques, wayside stands, and grocery items, to the public and that it mirrors Frederick County's definition of a country store, which is an allowed use in the RA Zoning District with an approved Conditional Use Permit (CUP). Therefore, the applicant believes that the Zoning Administrator's interpretation of Section 165- 401.02 of the Zoning Ordinance is incorrect as the interpretation does not take into account that the activities occurring on this property would be permitted with an approved Conditional Use Permit in the RA Zoning District. BOARD OF ZONING APPEALS SUMMARY AND ACTION OF THE NOVEMBER 17 2009 MEETING: A public hearing was held at the November 17, 2009 meeting. Chairman Scott opened and closed the public hearing portion of the meeting, during which time several citizens spoke. After discussion by the Board, the applicant's attorney and the Zoning Administrator, the applicant's attorney requested that this request be tabled and the Board unanimously voted to table this appeal request until the December 15, 2009 meeting. STAFF CONCLUSIONS FOR THE DECEMBER 15 2009 MEETING: Section 165-401.02 of the Zoning Ordinance provides for permitted uses in the County's RA Zoning District. Flea markets are not listed within this section of the ordinance and are not a permitted use. The term flea market does not appear anywhere in the Frederick Zoning Ordinance. The applicant contends that the uses occurring at this flea market mirror a county store, and would be allowed with a Conditional Use Permit as an avenue to resolve this violation and allow this use to occur. Appeal Application 402-09, Royston Eshelman Properties, LC December 4, 2009 Page 3 A Conditional Use Permit (CUP) is a land use action approved by the Board of Supervisors, and allows for a variety of uses within the County's zoning districts. An application for a CUP is granted only for the allowed uses in a specific zoning district. A CUP applies to only one use on a particular property, not multi -uses or uses that are not listed. Therefore, Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Chapter 165, Section 165-101.07 and Section 165-401.02, undocumented structures and the presence of commercial activities as an allowed use in the RA zoning district. The use shall be discontinued and the illegal structures removed. ul z z 0 Q Z Lo o U) 4CL 0 W a. co LU �T LU co ce ku '0 OEM r, z MENEM MENEM to MEMME 0 z Srri MMEM LU MEMEMEM NEEMOMMMMM MWOMMEMMEMN ammomm MEWWWO WE ul z z 0 Q Z LU MY Q ro io IL l v4(' m < 0 h- d10 4 % Lo o U) 4CL 0 W a. co LU �T LU co ce ku '0 Oc r, z to 0 z w LU 0 LU MY Q ro io IL l v4(' m < 0 h- d10 4 % N August 31, 2009 Royston Eshelman Properties c/o Mr. Mark Eshelman PO Box 221 White Post, VA 22663 COUNTY of FREDERICK Department of Planning and Development 540/665-5651 SENT VIA CERTIFIED MAIL FAX: 540/665-6395 RE: The entire portion of property contained in Frederick County, Virginia, located at 3700 Stonewall Jackson Highway, White Post, Virginia; such entire property is described in a deed from Audrey F. Funkhouser, Executrix of Charles C. Funkhouser, et at., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of Court of Clarke County, Virginia, Deed Book 78, at Page 33, containing 5.13 acres more or less. This property is zoned (Rural Areas) Zoning District, Dear Mr. Eshelman: I visited the above referenced property on June 26, 2009, with the Frederick County Building Official in response to a complaint regarding a structure being built without a building permit. My inspection of the property noted several structures built without permits, as well as a flea market, with other commercial uses, being operated on the property. In accordance with Section 165-101.07 of the Frederick County Zoning Ordinance, any structures built within Frederick County are required to have obtained a building permit. The presence of these structures on the above -referenced property constitutes a violation of the provisions of Section 165- 101.07 and is not allowed. In accordance with Section 165-401.02, the presence of commercial activities, i.e., Shen -Valley Flea Market, and other commercial uses within the flea market, constitutes a violation of the provisions of Section165-401.02 of the Frederick County Zoning Ordinance, and is not an allowed use in the RA zoning district. This office will allow thirty (30) days from receipt of this letter to resolve these violations. Resolution of these violations may be accomplished by applying for building permits to remove the buildings from the property; theses structures are being used for commercial uses. The flea market and other commercial uses on the property must be discontinued. Failure to comply with the Code of Frederick County will result in a criminal complaint being filed against you. You may have the right to appeal the above notice of violation within 30 days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable, if it is not appealed within 30 days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165-1001.02 (1), of the Frederick County Zoning Ordinance. 107 ]North Keret Street, Suite 202 • Winchester, Virginia 22601-5000 Mr. Mark Eshelman Re: 3700 Stonewall Jackson Highway August 31, 2009 Page 2 This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information you may want to submit, and a $300.00 filing fee. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. If you have any questions contact me at (540) 665-5651. Sincerely, ark R. Cheran Zoning Administrator cc: John Trenary, Frederick County Building Official Jesse Russell, Clarke County, 102 N. Church St., Berryville, VA 22611 MRC/bad October 19, 2009 Royston Eshelman Properties P. O. Box 221 1 White Post, VA 22663 COUNTY of FREDERICK Inspections Department John S. Trenary, Building Official 5401665-5650 Fax 5401678-0682 RE: That portion as is contained in Frederick County, Virginia of the entire property located at 3700 Stonewall Jackson Highway, White Post, Virginia, as such entire property is described in a deed from Audrey F. Funkhouser, Executric of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of the Circuit Court of Clarke County, Virginia, in Deed Book 78, at Page 33, containing 5.1.3 acres, more or less. Dear Sirs: On October 9, 2009, permit applications were dropped off for the above mentioned property. This letter is to inform you that those permit applications can not be processed until functional design approval is granted under Section 103.11 of the Virginia Uniform Statewide Building Code by the County Zoning Department for location placement of these structures. (note the attached letter of violation dated 8-31-09) If you have any questions, please do not hesitate to contact this office. Sincerel �J j ;= John S. Trenary, CBO Building Code Official cc Mark Cheran, Frederick County Zoning Administrator Rod Williams, County Attorney Robert J. Light, Attorney Attachment 107 North Kent Street • Winchester, Virginia 22601 John S. Trenay, Building Official 5401665-5650 Fax 5401678-0682 CERTIFIED August 31, 2009 Royston Eshelman Properties P. O. Box 221 White Post, VA 22663 RE: That portion as is contained in F—derick County, Virginia of the entire property located at 3700 Stonewall Jackson Highway, White Post, Virginia, as such entire property is described in a deed from Audrey F. Funkhouser, Executric of Charles C. F unkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of the Circuit Court of Clarke County, Virginia, in Deed Boole 78, at Page 33, containing 5.13 acres, more or less. Dear Sirs: On June 26, 2009, an inspection was made at the above referenced location. At that tirne, it was discovered that several buildings had been built without permits being issued and inspections performed. This is a violation of the following section of the 2006 Virginia Uniform Statewide Building Code. Virginia Uniform Statewide Building Code, Section 103.11 Functional design. The following criteria for functional design is in accordance with Section 36-98 of the Code of Virginia. The USBC shall not superscdc the regulations of other state agencies which require and govern the functional design and operation of building related activities not covered by the USBC including but not limited to (i) public water supply systems, (ii) waste water treatment and disposal systems, (iii) solid waste facilities. Nor shall state agencies be prohibited from requiring; pursuant to other state law, that buildings and equipment be maintained in accordance with provisions of this code. In addition, as established by this code, the building official may refuse to issue a permit until the 107 North bent Street . Winchester, Virginia 22601 Royston Eshelman Properties Letter Page Two applicant has supplied certificates of functional design approval from the appropriate state agency or agencies. For purposes of coordination, the locality may require reports to the building official by other departments or agencies indicating compliance with their regulations applicable to the functional design of a building or structure as a condition for issuance of a building permit or certificate of occupancy. Such reports shall be based upon review of the plans or inspection of the project as determined by the locality. All enforcement of these conditions shall not be the responsibility of the building official, but rather the agency imposing the condition. Virginia Uniform Statewide Building Code, Section 108.1 When applications are required. Application for a permit shall be made to the building official and a permit shall be obtained prior to the commencement of any of the following activities, except that applications for emergency construction, alterations or equipment replacement shall be submitted by the end of the firs' working day that follows the day such work commences. In addition, the building official may authorize work to commence pending the receipt of an application or the issuance of a permit. 1, Construction or demolition of a building or structure, Installations or alterations involving (i) the removal or addition of any wall, partition or portion thereof, (ii) any structural component, (iii) the repair or replacement of any required component of a fire or smoke rated assembly, (iv) the alteration of any required means of egress systen-r, (v) water supply and distribution system, sanitary drainage system or vent system, (vi) electric wiring, (vii) fire protection systern, mechanical systems or fuel supply systems or (viii) any equipment regulated by the USBC. 2. For change of occupancy, application for a permit shall be made when a new certificate of occupancy is required under Section 103.3. 3. Movement of a lot line that increases the hazard to or decreases the level of safety of an existing building or structure in comparison to the building code under which such building or structure was constructed. 4. Removal or disturbing of any asbestos containing materials during the construction or demolition of a building or structure, including additions. Virginia Uniform Statewide Building Code, Section 113.3 Minimum inspections. The following minimum inspections shall be conducted by the building official when applicable to the construction or permit., 1. Inspection of footing excavations and reinforcement material for concrete footings prior to the placement of concrete, 2. Inspection of foundation systems during phases of construction necessary to assure compliance with this code. 3. Inspection of preparatory woric prior to the placement of concrete. d. Inspection of structural members and fasteners prior to concealment. Royston Eshelman Properties Letter Page Three 5. Inspection of electrical, mechanical and plumbing materials, equipment and systems prior to concealment. 6. Inspection of energy conservation material prior to concealment. 7. Final inspection. This office hereby gives you thirty (30) days from the receipt of this letter to remove the buildings or obtain the necessary approvals frorn Planxiing & Zoning and apply for the necessary permits. NOTE: Demolition permit shall be required to remove any structure that has utilities connected. If you have any questions, please do not hesitate to contact this office, Please be aware that the above is subject to appeal under Section 119 of the Virginia Uniform Statewide Building; Code. Si John S. Trenary, CB Building Code Of hal cc t f ark Cheran, Frederick County Zoning Administrator Jesse Russell, Clarke County Zoning Administrator Gary Pope, Clarke County Building Official Robert J. Light, Attorney Rod Williams, County Attorney APPLICATION FOR APPEAL IN THE COUNTY OF FREDERICK, VIRGINIA Appeal Application # ". Submittal Date Fee. Paid es initials: -OFFICE USE ONLY - SEP 2 8 2099 SubftlittalDeadline /E)J' For the meeting of MUST BE TYPED OR FILLED OUT IN INK - PLEASE PRINT 1. The applicant is to list the owners X adult occupants _ or parties in interest of the property . (Check one) 2. APPLICANT: NAiyIE: Royston Eshelman Properties, LC ADDRESS p ,() , Box 221 White Post; VA 22663 OCCUPANT: (if different) NAME: ADDRESS: TELEPHONE: 540-869-1561 TELEPHONE-: 3. The property i5 located at (give exact directions and include State Route numbers): That portion of property contained in Frederick County, VA located at 3700 Stonewall Jackson Hwy (State Route 277), White Post, near inter- section with Front Royal Pike (US 5225) 4. Mngisterial District: Opequon 5. Property Identification No.: 87-3-B1; 87-3-B(portion) 6. The existing zoning of the property is: RA 7. The existing use of the property is: sale of groceries/produce, second hand items, antiques 8. Adjoining Property: USE ZONING North sale of produce/ groceries, second hand items, antiques RA East see above RA South convenience store, homesite, fruit stand RA, B--3 West sale of produce, etc. RA 9. Describe the decision being appealed. (Attach a copy of the written decision.) The determination by the Zoning Administrator that activities which could be considered part of flea market activities are prohibited in the RA zoning district. See attached August 31, 2009 letter. 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) See attached letter from Lawson and Silek, P.L.C., counsel for Royston Eshelman properties, LC 11. Additional con unents, if any: 12. The following names and addresses are all of the individuals, frrrns, or corporations owning property adjacent to the property for which the appeal is being sought, including properties at the sides, rear, and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notified by mail of this application; (Please list complete 14 -digit proper[v identification number.) NAME The Southland Corp. c/o 7 -Eleven Inc. Tax Dept #32269 Address P.Q. Box 711, Dallas, TX 75221 Property ID # 87-A-108 Montie W. Gibson, Jr. Address 101Cahille Drive, Winchester, VA 22602 Property ID # 87--3-B Gary W. and Sharon R. McDonald Address 514 Clark Road, Stephens City, VA 22655 Property ID # 87-A-90 Keith F. and Sandra S. Rogers Address 2204 Fairfax Pike, White Post, VA 22663 Property ID # 87-A-89 Horizon Holdings, LLC Address P.Q. Box 574, Round Hill, VA 20142 Property ID # 87-A--88 Wendi C. and Steve D. Simmons Address 2154 Fairfax Pike, White Post, VA 22663 Property ID # 87-A-91 Ethel S. Robertson Joseph A. Kidwell Address 2142 Fairfax Pike, White Post, VA 22663 Property ID # 87-A-93 Address Property ID # Address Property ID # Address Property ID # Address Property ID # AGREEMENT APPEAL # r u2 ` 6) r I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions required by the BZA. I authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF APPLICA SIGNATURE OF OWNER (if other (ban applicant) -OFFICE USE ONLY- BZA PUBLIC HEARING OF / ACTION: - DAT - APPEAL OVERRULED APPEAL SUSTAINED Rev. 1,97 SIGNED: DATE. )ATE ? `CZ DATE BZA CIIAHUVL N Special Limited Power of Attorney County of Frederick, Virginia Frederick Planning Web Site: wwsv.eo,fredericic.va.us Department of Planning & Development, County of Frederick, Virginia, 107 North Kent Street, Suite 202 N'Vinchester, Virginia 22601 Facsimile 540-665-6395 Phone 540-665-5651 Know All Men By Those Present: That I (VVe) (Name) Royston Eshelman Properties, L.C. (Phone) 540--869-1561 (Address) P.O. Box 221, White Post, VA 22663 the owner(s) of all those tracts or parcels of land ("Property") conveyed to me (us), by deed recorded ill the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by smmmm Book 78 ort Page 33 , and is described as (as recorded in Clarke County Book 606 on Page 506 (as recorded in Frederick County Court records) Parcel: Lot: Block: Section: Subdivisi0n: do hereby make, constitute and appoint: (Name) Lawson and Silek, P.L.C. (Phone) 540-635-9415 (Address) 43 Chester Street, Front Royal, VA 22630 To act as my true and lawful attorney-in-fact for and in my (our) name, place, and stead with full power and authority I (we) would have if acting personally to file planning applications for lily (our) above described Property, including: Rezoning (including proffers) _ Conditional Use Permit Master Development PIan (Preliminary and Final) _ Subdivision _ Site PIan X Variance or Appeal Comprehensive Policy Plan Aniendinent My attorney-in-fact shall have the authority to offer proffered conditions and to stake amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. Iii witness thereof, I (we) have hereto set niy (our) hand and seal this day of 20"6p 200 , MIMMIr KLA/� ..�T WIN��,�Ii--MM-". _' V - State of Virginia,.Gity/County of-W"1i , To -wit: I, _,_ �i lir Notary Public ill and for the jurisdiction aforesai , ceri fy that the 1}erson(s) 4vl signed to the foregoing instruillent Ser Wally a )geared before me and has acknowledged the sante before nie in the jurisdiction aforesaid this la of �, 200. LAws0N AND SILEK9 P.L.C. 43 CHESTER STREET POST OFFIcE Box 602 FRONT ROYAL, VA 22630 TELEPHONE: (540) 635-9415 FACSIMILE: (540) 635-9421 E-MAIL: JSH.F.KC2LANVSON'ANDSILFK.COR1 September 28, 2009 Kevin C. Scott, Chairman Frederick County Board of Zoning Appeals c/o Mark Cheran, Zoning & Subdivision Administrator Frederick County Department of Planning & Zoning 107 North Kent Street Winchester, Virginia 22601 SLI 2 8 2009 Re: Royston Eshelman Properties, L.C. — Appeal of Zoning Interpretation DELIVERED BY HAND DELIVERY Dear Mr. Scott: Please be advised that my office represents Royston Eshelman Properties, L.C., the owner of certain property in Frederick County, Virginia, upon which a portion of the operation known as "Shen -Valley Flea Market" is conducted. My client also leases certain property in Frederick & Clarke Counties for the sane purpose. For the reasons set forth below, my client is appealing the interpretation of Frederick County Zoning Administrator Mark Cheran as set forth in his August 31 letter. Please find enclosed with this letter the following: (1) Application for Appeal to the Board of Zoning Appeals; (2) Copy of Mr. Cheran's August 31, 2009 Letter; and (3) Application Fee Relevant facts In Itis August 31, 2009 letter, Mr. Cheran states as follows: " In accordance with 165- 401.02, the presence of commercial activities, i.e., Slren-Valley Flea Market, and other commercial lases within the flea market, constitutes a Violation of the provisions of Section 165- 401.02 of the Frederick County Zoning Ordinance, and is not an allowed use in the RA zoning district." With respect, for the reasons set forth below, we believe that Mr. Cheran's WINCHESTER AT)Duss: 160 EXETER DRIVE, SUITE 103, P.O. Box 2740, WINCHESTER, VA 22604, TELEPHONE: (540) 665-0050, FACswrLE (540) 722.4051, E-MAIL: TLAWSON@R,LSPLC.COM Kevin C. Scott, Chairman September 28, 2009 Page Two (2) interpretation of the Zoning Ordinance is incorrect because he fails to take into account that most if not all of the operations within a flea market are allowed uses in the RA zoning district by special permit. Consequently, Mr. Cheran's interpretation improperly precludes my client's pursuing a special permit for those permitted operations. As an additional consequence of this erroneous interpretation, my client is likewise Unable to take steps to Obtain building permits for certain structures located on its property. To begin, it is important to realize that a "flea market" is an umbrella concept that encompasses several small vendors. For example, there are farmers, particularly in the flint growing industry, who sell their products at my client's site. There are also other vendors selling a variety of products to the general public for household corlslummption and use. Finally, there are vendors selling antiques. In addition, you should be aware that the entirety of the Shen -Valley Flea Market does not lie exclusively in Frederick County. Rather, much of the operation lies in Clarke County in a zoning district in which peri -nits flea market operations are permitted. Relevant Statutory Authority To begin, my client concedes that the term "flea market" is not defined by the Frederick County Zoning Ordinance, and that the term is not mentioned in the list of uses specified in Section 165-401.02. However, Section 165-401.03 sets forth a series of uses that are permitted in the RA zoning district if a conditional use permit is obtained. For purposes of this appeal, the following conditionally permitted uses are relevant to the analysis: (i) "off premises wayside stands;" (ii) "country general stores;" and (iii) "antique shops." Frederick County Code s. 165- 401.03 (F), (G), (I). The term "country general stores" is defined by the Zoning Ordinance as "a retail business allowed where specified in rural zoning districts which sells groceries along with a variety of other retail goods" Frederick County Code s.165-101.02 (emphasis added). A "retail use" is likewise defined as "establishments engaged in selling goods or merchandise to the general public for personal or household consumption and rendering services incidental to the sale of such goods." Id. (emphasis added). A "wayside stand" is any structure or land used for the sale of agricultural or horticultural produce, livestock or merchandise produced by the owner of his family on their farm." Id. According to Zoning Ordinance, any definition not specifically Iisted will be determined by reference to the most recent edition of Merriam -Webster's Dictionary. See Frederick County Code s.165-101.02. According to Merriam -Webster's Collegiate Dictionary, 11 °i Edition, a "flea market" is an "open air market for second hand articles and antiques." Kevin C. Scott, Chairman September 28, 2009 Page Three (3) Analysis In applying the above County ordinance provisions to the facts and circumstances of my client's operation, our client believes that, contrary to the Zoning Administrator's interpretation, the operations that comprise the "flea market" operations of my client are actually uses allowed (pursuant to a conditional use permit) under three different concepts incorporated into the Frederick County Zoning Ordinance. Essentially, many of the vendors on my client's site are simply providing goods and merchandise (including grocery items) to the general public for personal or household consumption. Such operations are conditionally permitted in the RA zoning district as a "country general store." It is important to observe that nothingin � the definition of a "country general store" forbids the operation from being in an open air environment." What is more, at least some of the vendors selling agricultural products at my client's site are selling such products grown fronn their own farms. Again, such an operation is permitted by conditional use perimit in an RA zone as demonstrated above. Finally, the very definition of a flea market includes the selling of antiques. "Antique shops," like wayside stands and country general stores, are permitted with a conditional use permit in an RA zone. Thus, while my client recognizes that it needs to obtain the appropriate conditional use permits for these uses, my client's operations are certainly allowed (albeit conditionally) in the RA district. Unfortunately, as noted in Mr. Cheran's August 31 letter, his interpretation fails to take into account the use permitted by conditional use permit in an RA district as set forth in Section 165-401.03. Instead, by focusing exclusively on Section 165-401.02 (which simply sets forth the "by right" uses available in an RA zoning district, he makes an interpretation that is overbroad and inconsistent with the plain language of the Zoning Ordinance. In summary, my client believes that the Zoning Administrator's interpretation that vendor operations falling under a "flea market" concept as prohibited in the RA district under any circunnstances is plainly wrong. As demonstrated above, most if not all of the vendors operating in a flea market are allowed to conduct their operations in the RA district so long as a conditional use permit has been obtained. An interpretation to the contrary ignores the plain text of the Zoning Ordinance applicable to the RA district. Therefore, my client respectfully requests that this Board of Zoning Appeals overturn the interpretation of the Zoning Administrator so as to allow my client to obtain a conditional use permit for its operations. Kevin C. Scott, Chairman September 28, 2009 Page Four (4) On behalf of my client, I wish to thank you for your time and thoughtful attention to this application. If you have any additional questions, please do not hesitate to contact me. ours, Silek, Jr. Enclosures Cc (wl enclosures): Royston Esheh an Properties, L.C. ()C1 2 1 ' I;i;!) LAwsON AND SILEK, P.L.C. 43 CHESTER STREET POST OFFICE BOX 642 FRONT ROYAL, VA 22630 TELEPHONE: (540) 635-4415 FACsimILE: (540) 635-4421 E-IiIA1L: JSILEK@Q LANV8ONANDSILEK.CO%S October 19, 2009 Mark Cllcran Zoning & Subdivision. Administrator Fred -i: rlcic Count., TDc'1'.artrne,lt of Planning & Zon;ng 107 North Kent Street Winchester, Virginia 22601 Re: Royston Eshelman Properties — Suggestion for Bomidary bine Adjustment Dear Mark: I am writing this letter to follow up on our telephone conversation last week. During Our convei-sati©n, I suggested that one solution to the present dilemma would be for Clarke and Frederick Counties to enter into a boundary line adjustment agi-eennent pursuant to Virginia' statute and relocate into Clarke County all the property conipl-ising illy client's operations. You indicated that this proposal may have merit and asked me to send you a written proposal for 1-eVIew and coils]deration. A boundary line adjustment in this circumstance would have several advantages for all parties involved. To begin, there would not be a great deal of property involved in such boundary line adjustment. One reason for the plat and survey currently underway is to pinpoint the exact location of the Frederick/Clarke County line, which runs across the property comprising my client's operations in an unusual manlier. Second, my client's operations I -lave :.ni5ied via file Slit: f0"1' WGIi uvGr i-4VV �2} dLtaitlea. A 13ViilliiclCjl iliiE; ailjUstlllt;llt 4V'liu'lel 51[!lli,y allow a long-established use to continue In a jurisdiction where such operations are already permitted. Third, a boundary line adjustment mechanlsin allows the two jurisdictions to address any concerns about my client's operations in a straiglitfolivard manner. Finally, a boundary line adjustment would moot the pending BZA appeal while also eliminating the potential for any subsequent litigation. As you and I discussed, in the event that Frederick County were interested in pursuing this option, the BZA matter could be postponed pending a satisfactory conclusion to the boundary line adjustment process. Given the above, I would urge Frederick County to take: a serious look at a boundary line adjustment witli Clarke County as a pragmatic solution to an unfortunate situation. Naturally, my client would be happy to cooperate in any way it call. Kindly let me know whether Fredenc.k County is amenable to piu-seling this approach. Thank you in advance Col- You]- thoughtful W NC11ESTER ADDRESS: 160 EXETER DRIVE, Sum. 103, P.O. Box 2740, WFNCH£STER, VA 22604, TELEPHONE: (540) 665.0050, FACSIMILE (540) 7224051, E-MAIL: TLAWSONCIU,I.SPLC.CO\I Marls Cheran October 19, 2009 N e l- o (2) attention to this proposal, and please do not hesitate to contact me to discuss any additional gUestions or concerns. Respe tfull Obert ., Light Cc: Royston Eshelman Properties, L.C.