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HomeMy WebLinkAboutBZA 12-15-09 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 December 15, 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. ABSENT: Eric Lowman, Red Bud District; and, Robert W. Wells, Member -At -Large 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. Perry and seconded by Mr. Givens, the minutes for the November 17, 2009 meeting were unanimously approved as presented. Chairman Scott asked Mr. Cheran if there are any applications pending for next month. Mr. Cheran responded that Friday, December 18 is the cut -off date and as of today, there are no applications pending. PUBLIC MEETING 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, 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 DENIED; ZONING ADMINISTRATOR UPHELD Mr. Cheran stated that the public hearing for this appeal application was held on November 17, 2009 and at that time the applicant requested it be tabled for 30 days in order for his client to try to Frederick G unty oard o &o ing Appeals 1528 Minutes of Becem er 15, 0 resolve the matter. Mr. Cheran presented an overview of the November 17 meeting. This application by Royston Eshelman Properties appeals 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. Mr. Cheran has been in contact with Mr. Eshelman's representative, Mr. Robert Light, and with the Clarke County Zoning Administrator, as well as Frederick County's attorney, about a possible boundary line adjustment in order to adjust the property into Clarke County. That has not come to fruition. Mr. Cheran continued that he has provided Board Members with a copy of a letter from Jesse Russell, the Zoning Administrator in Clarke County, which will give you an idea of what Clarke County will accept. There are two facets to this appeal: compliance with Frederick County's Zoning Code and permitted uses in the Rural Areas Zoning District; and, undocumented structures which would require building permits. The property in question is in Frederick County; it is not the Gibson property. We're discussing the 1.843 acres in Frederick County - the use and the buildings located on this parcel. Staff is respectfully requesting to affirm the determination of the Zoning Administrator that the uses are not allowed in the RA Zoning District and there are buildings constructed without proper permits being obtained. Citing the Clarke County letter, Mr. Shirley asked Mr. Cheran about the County line still being in question. Mr. Cheran responded that during the last 30 days, staff has tried to figure out where the County line is. Staff did a field run at the location with the Frederick County GIS ,and we also did an overlay with Clarke County's G1S. The way the 1836 deed recorded in Clarke County referenced it is probably close to Mr. Brogan's survey. Prior to the Byrd Act of 1932, the Road Department, now VDOT, had control of all the maps and boundaries. Up until the mid 1970's, the Secretary of the Commonwealth kept all boundaries. We believe that Mr. Brogan's survey is as correct as it can be with the maps and boundaries available to him. Mr. Russell's letter works out the agreement with the buildings. Mr. Cheran reiterated that Frederick County is not shutting the flea market down; we can reach an agreement if the Eshelmans move the buildings into Clarke County. Chairman Scott asked about parking and Mr. Cheran stated that flea market parking would not be allowed in Frederick County; any activity related to the flea market is not allowed. Mr. Robert Light of Lawson & Silek, representing Eshelman Properties, took the podium. Mr. Light stated that the issue from his client's perspective is that he is working on trying to remove the structures into Clarke County. The most important issue is the fact that discussions continue to be on- going about who will have jurisdiction over the 1.843 acres. What we're talking about is seeing if the two jurisdictions can agree that the 1.843 acres would be treated as if it was located in Clarke County, which makes the issue before this Board moot. No agreements have been made, but Mr. Light thinks that everybody is still trying to work and see if that's possible. Mr. Light stated that his view is that perhaps the BZA give it a little more time to see if the two jurisdictions can make this a moot issue. If the Board wants to make a determination today, Mr. Light asks that they remember what he feels the issue is, which is the broadness of Mr. Cheran's letter in regard to what uses may be made on the property in Frederick County. Mr. Light likened the issue to a shopping center example. In Frederick County, certainly not every zoning district can have a shopping center, such as restaurants, grocery stores, and retail uses. However, on a given piece of property, even though you cannot have a shopping center, a piece of property may very well be a permitted use, whether by special use permit or otherwise. The fact that you can't have a shopping center wouldn't preclude a restaurant. Mr. Light thinks the 1529 gQderick County Bgoard o 77o ing AppealsMmutesofDecember15, 00 same concept works for flea markets. He accepts that the term flea market is not mentioned anywhere in the Frederick County Code. But there are uses that could be encompassed within a flea market which the Code does permit by special use permit. For example, antique stores. The definition expressly mentions sale of antiques as part and parcel of a flea market. You permit antique stores as part of a special use permit in the agricultural district. Likewise, selling fruit or produce, wayside stands, are permitted by special use permit in the ag district, even though flea markets are not. Mr. Light thinks the language in Mr. Cheran's letter is so broad that if his client wanted to run a wayside stand, it would be refused because a flea market is not allowed. Mr. Light feels there are certain uses, just like in a shopping center, that may be permitted, stand alone by ordinance in this district, butithe overall concept of shopping center /flea market may not be. On that point and to the extent that his interpretation says that, it should be overruled, and the rshelmans should be allowed to try for a special use permit. Mr. Light thinks the solution would be to hold off for another month and see what Clarke and Frederick County are willing to do. Mr. Shirley asked if another 30 days would help get this solved. Mr. Light stated he can't control that. Clarke and Frederick County have to meet and discuss what they're going to do with this and perhaps another meeting may give them a chance to get a view one way or the other. Mr. Givens stated that unless some type of legislative relief is given, nothing is going to be able to happen to the property, and Mr. Givens doesn't see what a delay of 30 days is going to do to resolve that issue. Mr. Light responded we would have a sense of whether the two jurisdictions are interested in coming up with a boundary line solution where Clarke County would have jurisdiction over the 1.843 acres. Mr. Cheran stated that a decision by the Board today would start the 30 day clock for the applicant to file in Circuit Court. Mr. Light has 30 days from today to file, letting the Judge rule either to uphold or to deny the BZA's decision. Chairman Scott pointed out that at last month's meeting, on November 17, 2009, public comments were permitted as it was a public hearing. Today's meeting is considered a public meeting and as such, public comments will not be heard. Discussion Mr. Givens stated that at this point, he feels that we're ready to vote and that Mr. Cheran's letter is correct. Mr. Givens made the motion to confirm the decision of the Zoning Administrator. Mr. Perry seconded the motion and it passed with a unanimous vote to uphold the decision of the Zoning Administrator. 1530 FF vderick gunty board oK ing Appealsmutesoecemer15, 0 4 ) Other Mr. Cheran stated that this is Mr. Shenk's last meeting and he thanked Mr. Shenk for his time and service to the Board. Board members each thanked Mr. Shenk. As there were no other items to be discussed, the meeting adjourned at 3:50 'p.m. by unanimous vote. Respectfully submitted, Kve in Scott, Chairman Bev Dellinger, Secretary 0 1531 ederick gumy >oard o o ing AppealsmutesoMecemer15, 0