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BZA 02-16-10 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 February 16, 2010. PRESENT Kevin Scott, Chairman, Shawnee District; Robert Perry, Vice Chairman, Stonewall District; Bruce Carpenter, Gainesboro District; .Tay Givens, Back Creek District; R. K. Shirley, III, Opequon District; and Eric Lowman, Red Bud District. ABSENT: 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. Chairman Scott welcomed Mr. Bruce Carpenter, the newest member of the Board. On a motion made by Mr. Givens and seconded by Mr. Perry, the minutes for the December 15, 2009 meeting were unanimously approved as presented. Chairman Scott inquired if there are any applications pending for March. Mr. Cheran stated that Appeal Application #03 -10 of Brad Pollack, Applicant, will be postponed today and carried over to the March 16, 2010 meeting. On a motion made by Mr. Perry and seconded by Mr. Shirley, by unanimous vote, the election of officers and adoption of bylaws will be postponed until the end of the meeting. PUBLIC HEARING 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, Shawnceland, and is identified with Property Identification Number 69A- 1 -30 -5 in the Back Creek, Magisterial District. ACTION — VARIANCE APPROVED WITH MODIFICATION Mr. Johnston presented the staff report. This property is located in the southwestern part of the County, near Star Tannery and north of Wardensville Grade. Currently, the Rural Areas (RA) setbacks are 60 feet in the front, rear setbacks are 50 feet for six acres or less and 100 feet for six acres or more, 1532 Tderickp ebrinty Bojrl Qning Appealsmutesotruaryb, 11l and side setbacks are 50 feet. The applicant is requesting a 40 foot right and left side yard variance, resulting in side setbacks of 10 feet and a 75 foot rear yard variance, resulting in a rear yard setback of 25 feet. Mr. Johnston pointed out that the Health Department has approved a drainfield and well system for this lot. The proposed variance plat shows the largest house they could situate on this lot; the building foot print is 48X30 feet. This foot print could change because they're using a basic layout. Mr. Johnston continued that due to the narrowness, shallowness, size and shape of this lot, a variance is necessary, thereby proving a hardship. Mr. Givens stated that if the applicant builds the blue print house, they have 58 feet remaining on the side, allowing 26 feet on each side. Mr. Givens questioned why the Board is being asked to approve ten foot . side yards. His understanding is the Board approves what the applicant is proposing to build and not a variance to allow something different. Mr. Givens doesn't understand why the Board doesn't have the actual floor plan. Mr. Perry affirmed that the Board has always had to see the actual floor plan before making its decision. Mr. Carpenter asked if there is anything additional on the included aerial photo since 2006. Mr. Johnston responded that 2006 is the latest date that GIS has aerial photos available and to his knowledge, it's vacant land in a platted subdivision. Mr. Eddie Yost identified himself as the attorney and brother of the owners of Old Virginia Land. Mr. Yost stated what they're asking for on the 10 foot side yards is what the setbacks were in the early 1970's when the land was platted. The house that's being presented to the Board is the basic house is that the builders have been constructing. The reason they're asking for 10 feet instead of 25 feet is because sometimes they add on a garage or a master bedroom. Rather than reapplying for a variance in the future, they're asking for it now. Mr. Givens stated that according to the staff report.. side yard setbacks were 15 feet in 1967, not 10 feet. Mr. Cheran responded the applicants are trying to make the lot almost like what an R5 lot would be, which is what you find in Shawneeland and Wilde Acres. Those subdivisions have setbacks of 35, 10, 10 and 25. Mr. Cheran continued that the question is how the Board is going to look at this variance as to what is approved versus not allowing any leeway for an addition to the house now or in the future. The Board usually wants to see the floor plan. The surveyor did lay out what you see on the plat, with the setbacks at 10 feet. Mr. Perry stated he doesn't mind considering a variance, but he doesn't want to give any more than is necessary. In Mr. Perry's opinion, the Board has to know what the applicant wants to build in order to consider the exact variance needed. Chairman Scott told Mr. Yost that, in order to ensure whatever variance is approved will be the end product, the BZA needs to know what will be built on the parcel. Instead of allowing a blanket variance, the BZA has been asking for what is going to be built on the site now. However, Chairman Scott does understand the point about the future and the ability to utilize the property. Ms. Mary Kennedy Yost identified herself as a co -owner of Old Virginia Land. Her builder has already built and presold a house on the same street. By pre - selling, there may be someone who wants to buy the house but they want a garage on it; that's why they're asking for more of a variance. Ms. 1533 Wrrdericksunty Boar oning Appeals o t e ruary 1 0 Yost feels the Board is tying the builder's hands, and her hands, in building more houses because she and the builder don't know exactly what the buyer wants. Mr. Perry feels the applicant is asking for a blanket variance and the BZA cannot do that. Ms. Yost responded that if she has to come back with a different floor plan, that's going to cost them another 30 days in construction. Chairman Scott asked for citizen comments; there were none. Chairman Scott closed the public hearing portion of the meeting. Discussion Mr. Lowman stated that the precedent set by this Board in the past when allowing a variance of this nature has always been to have an idea of a footprint that the applicant is going to use. If you're going to use a smaller footprint than what you propose to the Board, you're going to be within the requirements. Chairman Scott asked Mr. Cheran if there is a requirement that the BZA has to have a floor plan. Mr. Cheran responded that staff does ask for a floor plan with the application. Mr. Givens asked if the floor plan that the applicant submitted had shown a garage, would the Board have approved it based on the fact that the garage was shown on the original floor plan? Mr. Givens continued that if this floor plan would have included a garage, the BZA would have acted on it in that way and if the buyer didn't want a garage, they would have been within the footprint. Mr. Lowman made a motion that Variance 401 -10 be approved with amended variances of 15 feet on each side, resulting in 35 foot setbacks on the left and right side, and a 75 foot rear yard variance as proposed, resulting in a rear yard setback of 25 feet. Mr. Shirley seconded the motion and it passed by a majority vote. PUBLIC HEARING 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. ACTION — VARIANCE APPROVED WITH MODIFICATION Mr. Johnston presented the staff report. This property is located two lots east of the prior variance request; it is a corner lot. Mr. Johnston stated that the same floor plan is going to apply to this lot as the previous one. 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. Due to the narrowness, shallowness, size and shape of this lot, a variance is p c un 1534 M cleric of ebru B 6ord 4f ping Appeals necessary, thereby proving a hardship. Mr. Givens asked about setbacks since this is a corner lot. Mr. Johnston replied that in the RA District, a typical front setback, on both fronts of a corner lot, would be 60 feet, and the front is always considered the shorter of the two sides. Mr. Eddie Yost stated this is basically the same situation as the previous variance request. Mr. Perry stated that the foot print the Board has been presented with is not the floor plan shown on the plat. Mr. Johnston explained that the surveyor, Michael Ariz, drew a building on the plat to utilize the whole setback area. Mr. Perry stated we have never granted a variance based on a hypothetical floor plan. Mr. Shirley stated that the first variance was easier for him to approve, but a corner lot is more difficult because he doesn't know where the house will be situated. Ms. Yost stated that the street address will be Abelia Trail, but the house will probably face Capon Springs Trail. Chairman Scott asked for citizen comments; there were none. Chairman Scott closed the public hearing portion of the meeting. l)isrnQ6nn Members discussed the possible location of the house and the appropriate approvable setbacks. Mr. Cheran stated the Board can accept what was applied for and not get into the floor plan issue. The Board can accept what is on the plat submitted and affix the setbacks and it will be the builder's responsibility to build within that setback. Mr. Givens made a motion that Variance 902 -10 be approved with amended variances of 35 feet on the right side, resulting in a 15 foot right side setback, a 5 foot variance on the left side, resulting in a 55 foot left side setback, and a 75 foot rear yard variance as proposed, resulting in a rear yard setback of 25 feet. Mr. Shirley seconded the motion and it passed by a majority vote. PUBLIC HEARING POSTPONED BY APPLICANT 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. By unanimous vote, the Board of Zoning Appeals voted to postpone Appeal Application 403 -10 until March 16, 2010. ACTION — BOARD WILL ACT ON MARCH 16, 2010 ppp 1535 Me esoebruaB 00 ning Appeals Other Mr. Robert Perry was nominated as Vice Chairman. The vote was unanimous to elect Mr. Perry as Vice Chairman. Mr. Kevin Scott was nominated as Chairman. The vote was unanimous to elect Mr. Scott as Chairman. Ms. Bev Dellinger was nominated as Secretary. The vote was unanimous to elect Ms. Dellinger as Secretary. As there are no changes, alterations or deletions to the previous Bylaws, the Bylaws are adopted as presented. As there was no further business, the meeting adjourned at 4:45 p.m. Respectfully submitted, WO -4100112 Bev Dellinger, Secretary E 11 p 1536 ederick bq my Borsl ?M ning Appealsmutesoeruaryb, Z