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BZA 02-16-10 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia February 16, 2010 3:25 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of December 15, 2009 3) Election of Officers and Adoption of Bylaws PUBLIC HEARING 4) Variance Request #01-10 of Old Virginia Land, LLC, for a 40 foot right and a 40 foot left yard variance, resulting in a right side and a left side yard setback of 10 feet each, and a 75 foot rear yard variance, resulting in a rear yard setback of 25 feet, for the construction of a single family dwelling. This property is located south on Abelia Trail, Section 30, Lot 5 of Enon Springs, Shawneeland, and is identified with Property Identification Number 69A- 1-30-5 in the Back Creek Magisterial District. 5) Variance Request #02-10 of Old Virginia Land, LLC, for a 40 foot right side yard variance, resulting in a 10 foot right side yard setback, a 25 foot left side yard variance, resulting in a left side yard setback of 25 feet, and a 75 foot rear yard variance, resulting in a rear yard setback of 25 feet, for the construction of a single family dwelling. This property is located south on Abelia Trail, Section 30, Lot 7 of Enon Springs, Shawneeland, and is identified with Property Identification Number 69A-1-30-7 in the Back Creek Magisterial District. 6) Appeal Application #03-10 of Brad Pollack, Applicant, who is appealing the decision of the Zoning Administrator as to permitted uses in the RP (Residential Performance) District under Section 165-402.02 of the Frederick County Zoning Ordinance. The subject property is located at 2032 Martinsburg Pike, and is identified with Property Identification Number 43-A-130 in the Stonewall Magisterial District. 7) 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 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 18th 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 County Board of Zoning Appeals Minutes of December 15, 2009 1528 resolve the matter. Mr. Cheran presented an overview of the November 17th 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 GIS. 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 Frederick County Board of Zoning Appeals Minutes of December 15, 2009 1529 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, but the 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 Eshelmans 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. Frederick County Board of Zoning Appeals Minutes of December 15, 2009 1530 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 , Kevin Scott, Chairman Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Minutes of December 15, 2009 1531 FREDERICK COUNTY BOARD OF ZONING APPEALS BY-LAWS FREDERICK COUNTY BOARD OF ZONING APPEALS BY-LAWS (Adopted February 16, 2010) ARTICLE I- AUTHORIZATION 1- 1 The Frederick County Board of Zoning Appeals is established by and in conformance with Chapter 165 of the Code of Frederick County, and in accord with the provisions of Section 15.2-2308 of the Code of Virginia (1950), as amended. 1-2 The official name of this body shall be the Frederick County Board of Zoning Appeals, hereinafter referred to as the BZA. ARTICLE II- PURPOSE 2- 1 The primary purpose of the BZA is to hear and decide appeals, variances, and interpretations of Chapter 165 of the Code of Frederick County, in accordance with the provisions of Section 15.2-2308 Code of Virginia (1950), as amended. ARTICLE III - MEMBERSHIP 3-1 The membership of the BZA shall be open to residents of Frederick County, recommended by Frederick County Board of Supervisors, and appointed by the Circuit Court for the locality, as prescribed by Section 15.2-2308 Code of Virginia, (1950) as amended. The membership shall be no more than seven (7) members; or less than five (5) members. Terms of office shall be five (5) years. 3-2 Members shall notify the Chairman via the Zoning Administrator twenty-four (24) hours prior to the meeting, if a member is going to be absent or must abstain, as per 15.3- 2308 Code of Virginia, (1950) as amended. ARTICLE IV - OFFICERS 4-1 Officers of the BZA shall consist of a Chairman, Vice-Chairman and Secretary. The Chairman and Vice-Chairman must be voting members of the BZA. The Secretary shall be a County employee. 4-2 The selection of officers shall be made by the voting members of the BZA at the first meeting of the calendar year. 4-2-1 Nomination of officers shall be made by the voting members of the BZA at the first meeting of the calendar year. Elections of officers shall follow immediately. A candidate receiving a majority vote of the entire voting membership shall be declared elected. 4-3 Duties 4-3- 1 The Chairman shall: 4-3-1-1 Preside at meetings. 4-3-1-2 Rule on procedural questions. 4-3-1-3 Certify official documents involving the authority of the BZA. 4-3-1-4 Certify minutes as true and correct copies. 4-3-2 The Vice-Chairman shall : 4-3-2- 1 Assume the full powers of the Chairman in the absence or inability of the chairman to act. 4-3-3 The Secretary shall: 4-3-3-1 Ensure that attendance is recorded at all meetings. 4-3-3-2 Ensure that the minutes of all BZA meetings are recorded. 4-3-3-3 Notify members of all meetings. 4-3-3-4 Prepare agendas for all meetings. 4-3-3-5 Maintain files of all official BZA records and reports. Official records and reports may be purged in accordance with applicable state codes. 4-3-3-6 Give notice of all BZA meetings, public hearings 4-3-3-7 Provide to the Circuit Court reports and recommendations of the BZA. 4-3-3-8 Attend to the correspondence necessary for the execution of the duties and functions of the BZA. 4-4 Term of Office 4-4-1 Officers shall be elected for a one-year term or until a successor takes office. Vacancies shall be filled for an unexpired term by a majority vote of the BZA. In such cases, the newly elected officer shall serve only until the end of the calendar year or until a successor takes office. ARTICLE V- MEETINGS 5-1 At the first meeting of each calendar year, the Board shall fix the date, time and place of all its regular meetings for the ensuing calendar year, and shall fix the day on which a regular meeting shall be continued should the Chairman later declare that weather or other conditions make it hazardous for members to attend. 5-2 Notice of all meetings shall be sent by the Secretary with an agenda at least five (5) days before the meeting. 5-3 All meetings of the BZA shall be open to the public except for Closed Sessions held in accordance with the provision specified under Section 2.l -344(A) of the Code of Virginia, (1950), as amended. ARTICLE VI - VOTING 6-1 A majority of voting members shall constitute a quorum. No action shall be taken or motion made unless a quorum is present. 6-2 No action of the BZA shall be valid unless authorized by a majority vote of those present and voting. ARTICLE VII - OPERATING RULES 7- I Order of Business 7-1-1 Call to Order 7-1-2 Consideration of Minutes 7- 1 -3 Public Hearing 7-1 -4 Other 7- 1-5 Adjournment 7-2 Minutes 7-2-1 The BZA shall keep minutes of each meeting. The Chairman and Secretary shall sign all minutes following approval by the BZA certifying that the minutes are true and correct. Minutes made available to the public prior to formal approval by the BZA shall be clearly identified as a draft version of the meeting. 7-3 Procedures 7-3-1 Parliamentary procedure in the BZA meetings shall be governed by Robert's Rules of Order, Simplified and Applied, except whereotherwise specified in these procedures. 7-3-2 When a motion has been made and defeated, additional, different motions may be made concerning the item under consideration. 7-3-3 Business items on the agenda shall be considered using the following procedures: 7-3-3-1 Report by County Staff 7-3-3-2 Presentation by Applicant 7-3-3-3 Citizen Comment 7-3-3-4 Rebuttal by Applicant 7-3-3-5 Discussion by BZA 7-3-3-6 Motion and Action by BZA 7-3-4 Public comment shall be allowed in all cases required by the Code of Virginia, (1950), as amended. 7-3-5 The BZA members may ask questions of clarification and information after the staff report, applicant presentation and citizen comment. 7-3-6 Petitions, displays, documents or correspondence presented at a meeting may be made part of the official record of the meeting by motion of the BZA and are to be kept on file by the Secretary. Such items need not be made part of the published minutes. 7-3-7 Public Hearings 7-3-7-1 The BZA shall hold public hearings on all items as required by the Code of Virginia, (1950), as amended. Such public hearing shall be advertised and notifications provided as required by the Code of Virginia, (1950), as amended. 7-3-7-2 The Chairman may establish special rules for any public hearing at the beginning of said hearing. These rules may include limitations on the time of staff report, applicant presentation and citizen comment. 7-3-8 Tabling 7-3-8-1 The BZA shall have the authority to table agenda items if any one of the following situations occurs: A) The agenda item does not meet the requirements of the Code of Virginia, (1950), as amended. B) The agenda item does not meet the requirements of the Code of Frederick County. C) Insufficient information has been provided for the agenda item . D) Issues or concerns that arise during formal discussion of the agenda item warrant additional information or study. E) The applicant provides the Frederick County Zoning Administrator with a written request to table the agenda item . F) The Frederick County Zoning Administrator is advised of an emergency situation that prevents attendance by the applicant. G) The applicant fails to appear at the meeting in which the application has been advertised to be acted upon. ARTICLE VIII - AMENDMENTS 8-1 These by-laws may be amended by a majority vote of the entire voting membership after thirty days prior notice. 8-2 BZA shall conduct an annual review of these by-laws to ensure their accuracy. All amendments to these by-laws shall be considered by the BZA in December of each calendar year. The BZA shall adopt their by-laws during the first meeting of each calendar year. VARIANCE APPLICATION #01-10 OLD VIRGINIA LAND, LLC Staff Report for the Board of Zoning Appeals Prepared: February 2, 2010 Staff Contact: Dana M. Johnston, Zoning Inspector This report isprepared by the Frederick County Planning Staff toprovide information to the Board of Zoning Appeals to assist them in making a decision on this request. It may also be usefitl to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: February 16, 2010 Action Pending LOCATION: South on Abelia Trail, Section 30, Lot 5 of Enon Springs, Shawneeland MAGISTERIAL DISTRICT: Back Creek PROPERTY ID NUMBER: 69A-l 30-5 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) Land Use: Residential and Vacant ADJOINING PROPERTY ZONING & USE: North: RA (Rural Area) Use: Residential South: RA (Rural Area) Use: Vacant East: RA (Rural Area) Use: Vacant West: RA (Rural Area) Use: Vacant VARIANCE REQUESTED: The applicant is requesting a 40 foot right and a 40 foot left yard variance, resulting in a right side and a left side yard setback of 10 feet, and a 75 foot rear yard variance, resulting in a rear yard setback of 25 feet, for the construction of a single family dwelling. REASON FOR VARIANCE: With current setbacks and the size of the property, there is no buildable area to build a dwelling. Variance #01-10, Old Virginia Land, LLC February 2, 2010 Page 2 STAFF COMMENTS: Frederick County adopted zoning in 1967. The Frederick County historical zoning map shows this property was zoned A-2 (Agricultural General) in 1967. The property setback lines at the adoption of the zoning ordinance were 35 feet for the front and 15 feet for the side yards. Frederick County amended its Ordinance in 1989 and 2009 to change the A-2 zoning districts to the current RA (Rural Areas) Zoning District, making the current setbacks for the property 60 feet to the front, 100 feet to the rear, 50 feet to the right, and 50 feet to the left. Based on the small size of this property and the large setbacks associated with the RA zoning district, the applicant is requesting a 40 foot right and a 40 foot left yard variance, and a 75 foot rear yard variance. This variance, if granted, would result in a10 foot right side yard setback and a10 foot left side yard setback, and a 25 foot rear yard setback. The majority of the properties located in the Shawneeland Subdivision are zoned R5 (Residential Recreational Community) and would have a setback of 35 feet from R.O.W., 25 feet in the rear and 10 feet on the sides. This request from the current RA zoning district setbacks would result in setbacks similar to, but still larger than, the rest of Enon Springs. STAFF CONCLUSIONS FOR THE FEBRUARY 16, 2010 MEETING: 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. The applicant is seeking this variance in order to construct a single-family dwelling. The following variance request meets the criteria of The Code of Virginia 15.2-2309 (2). Should this variance be granted, the building setbacks for this property would be 10 feet on both sides and would change to 25 feet on the rear property line. VARIANCE APPLICATION #02-10 OLD VIRGINIA LAND, LLC Staff Report for the Board of Zoning Appeals Prepared: February 2, 20 I 0 Staff Contact: Dana M. Jolrnston, Zoning Inspector This report is prepared by the Frederick County Planning Staff to provide inormation to the Board of Zoning Appeals to assist them 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: February 16, 2010 Action Pending LOCATION: South on Abelia Trail, Section 30, Lot 7 of Enon Springs, Shawneeland MAGISTERIAL DISTRICT: Back Creek PROPER TY ID NUM BER: 69A-130-7 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) Land Use : Residential and Vacant ADJOINING PROPERTY ZONING & USE: North: RA (Rural Area) Use: Vacant South: RA (Rural Area) Use : Vacant East: RA (Rural Area) Use: Vacant West: RA (Rural Area) Use: Vacant VARIANCE REQUESTED: The applicant is requesting a 40 foot right side yard variance, resulting in a 10 foot right side yard setback, a 25 foot left side yard variance, resulting in a left side yard setback of 25 feet, and a 75 foot rear yard variance, resulting in a rear yard setback of 25 feet, for the construction of a single family dwelling. REASON FOR VARIANCE: With current setbacks and the size of the property, there is no buildable area to build a dwelling. Variance #02- 10, Old Virginia Land, LLC February 2, 2010 Page 2 STAFF COMMENTS: Frederick County adopted zoning in 1967. The Frederick County historical zoning map shows this property was zoned A-2 (Agricultural General) in 1967. The property setback lines at the adoption of the zoning ord inance were 35 feet for the front and 15 feet for the side yards. Frederick County amended its Ordinance in 1989 and 2009 to change the A-2 zoning districts to the current RA (Rural Areas) Zoning District, making the current setbacks for the property 60 feet to the front, 100 feet to the rear, 50 feet to the right, and 50 feet to the left. Based ori the small size of this property and the l arge setbacks associated with the RA zoning district, the appl icant is requesting a 40 foot right side yard variance, a 25 foot left side yard variance, and a 75 foot rear yard variance. This variance, if granted, would result in a 10 foot right side yard setback, a 25 foot left side yard setback, and a 25 foot rear yard setback. The majority of the properties located in the Shawneeland Subdivision are zoned RS (Residential Recreational Community) and wou ld have a setback of 35 feet from R.O. W., 25 feet in the rear and ten feet on both sides. This request from the current RA zoning district setbacks would result in setbacks similar to, but still larger than, the rest of Enon Springs. STAFF CONCLUSIONS FOR THE FEBRUARY 16, 2010 MEETING: 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 hard ship. 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. The applicant is seeking this variance in order to construct a single-fam ily dwelling. The following variance request meets the criteria of The Code of Virginia 15.2-2309 (2). Should this variance be granted, the building setbacks for this property would be 10 feet on the right side, 25 feet on the left side, and would change to 25 feet on the rear property line. APPEAL APPLICATION #03-10 BRAD POLLACK, APPLICANT Staff Report for the Board of Zoning Appeals Prepared: February 3, 2010 Staff Contact: Mark R. Cheran, Zoning Administrator This report is pr epared by the Frederick County Planning Staff to provide information to the Board of Zoning Appeals to assist them in making a decision 011 this request. It may also be useful to others interested in this zaning matter. BOARD OF ZONING APPEALS HEARING DATE: Februaiy 16, 2010 - Pending LOCATION: The subject property is located at 2032 Mart insburg Pike. MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 43-A-130 PROPERTY ZONING & USE: Zoning: Land Use: RP (Residential Performance) District Public Utility ADJOIN ING PROPERTY ZONING & USE: North : RP (Residential Performance) Land Use: Residential East: RA (Rural Areas) Land Use: Vacant South : RP (Residential Performance) Land Use: Residential West: RP (Residenti al Performance) Land Use: Residential APPEA L: To appeal the decision of the Zoning Administrator in the administration of the Frederick Cou nty Zoning Ordinance in determining compliance and permitted uses in the RP (Residential Performance) Zoning District. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Adm inistrator as to permitted uses in the RP (Residential Performance) Zoning District under Section 165-402.02 of the Frederick County Zoning Ordinance. Appeal Application #03-10, Brad Pollack, Applicant February 3, 2010 Page 2 STAFF COMMENTS: The applicant does not having standing to pursue an appeal to the Broad of Zoning Appeals (BZA) regarding alleged zoning violations on the property located at 2060 Martinsburg Pike. The appl icant' s address on the appeal application and complaint lists his address at 148 N. Main Street, Woodstock, VA 22664. This location is approximately 35 miles from the subject property of this appeal. This applicant has no personal nexus with the subject property nor is he an adjoining property owner, or located within the viewshed of the subject prope1ty. As noted on the application of this appeal, the applicant is not acting on behalf of any person or corporation. The BZA is appointed by the Circuit Cowt as set forth and in accordance with the Code of Virginia 1950 as amended (Code), to hear and decide appeals from decisions of the Zoning Admini strator. Furthermore, the Code requires that a person making an appeal of the Zoning Admi nistrator's decision to the BZA must be a "person aggrieved". The Supreme Cou1t of Virginia has held that an aggrieved person is a person that i s eligible to petition the Circuit Court for review of a BZA decision. The Supreme Court held in V i rgini a Beach Beautifi cation Comm ission v . Board of Zonin g Appeal s, (Conrn1i ssion) 231 Va. 415, 419-20 (1986), that the Commi ssion had no standing in the lower court, as the Commission had no ownership or occupied any real property within or in close proximity to the property at issue. Therefore, the Commission had no specific property interests to be damaged. The Court, in its ruling on a person aggrieved, was to allow localities some protection from overzealous appeals of decisions of a Zoning Admini strator from citizens who do not have standi ng or property interest in those decisions. The BZA would have to hear appeals of the Zoning Administrator's decision from any citizen within the Commonwealth if the tlu-eshold of a person aggrieved'"'as not adhered to. Based upon the holding in the above-referenced case, the applicant's appeal before the BZA has no indication of owning or any interest in property proximate to the property in question. As noted on the applicant's appeal application, the applicant is not acting on behalf of any person or corporation. Therefore, the applicant is not a "person aggrieved" and the appeal application is moot and ca1rnot be heard . (Staff requested that the County Attorney review the case law regarding stand ing in this appeal; memo is included.) Section 165-402.02 of the Frederick County Zoning Ord inance provides for permitted land uses in the RP (Residential Performance) Zoning District. Subsection (B) of Section 165-402.02 states: Structures are to be erected or land use.for one or more o.f thefollowing uses - Number 6 of this sub­- section states: Ut;/;ties necessc11y lo serve residential uses, including poles, lines, distribution transfo rmers, p ipes and meters. The property subject to this appeal has been used as a utility use since 1986 and has an approved site plan. The site was modified in 1996 and 2008 with approved site plans. The property has been, and is currently, in conformance with the requirements of the Frederick County Zoning Ordinance. Past Zoning Admini strators and the current Zoning Administrator have determined that utilities set forth by the Zoning Ordinance are permitted in all of its residential d istricts. Appeal Application #03-10, Brad Pollack , Applicant February 3, 2010 Page 3 STAFF CONCLUSIONS FOR THE FEBRUARY 16, 2010 MEETING: Staff is requesting that the BZA deny this appeal, on account of the applicant 's lack of standing, or in the alternative, that the BZA affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Chapter 165, Section 165-402.02 that utilities are an allowed use in the RP (Residential Performance) Zoning District.