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BZA 03-16-10 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 March 16, 2010. PRESENT Kevin Scott, Chairman, Shawnee District; Bruce Carpenter, Gainesboro District; Jay Givens, Back Creek District; R. K. Shirley, III, Opequon District; Eric Lowman, Red Bud District; and Robert W. Wells, Member -At -Large ABSENT: Robert Perry, Vice Chairman, Stonewall District STAFF PRESENT Mark R. Cheran, Zoning and Subdivision Administrator; Dana Johnston, Zoning Inspector; and, Renee' Arlotta, Acting 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. Carpenter, the minutes for the February 16, 2010 meeting were unanimously approved as presented. Chairman Scott inquired if there are any applications pending for April. Mr. Cheran responded there is a variance scheduled for the April 20` meeting. PUBLIC HEARING 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. ACTION — ZONING ADMINISTRATOR UPHELD; APPEAL DENIED Mr. Cheran presented a point of order directed to Mr. Brad Pollack, the applicant, as to his standing with this appeal. At this time, Mr. Pollack approached Mr. Cheran and handed him a Conveyance of Property. Mr. Cheran took the Conveyance of Property from Mr. Pollack and stated that it has not been duly recorded in the Frederick County Clerk's Office, which means that Mr. Pollack is not the aggrieved party and the Board of Zoning Appeals cannot act upon this appeal application today. Mr. Cheran further stated that Mr. Pollack actually lives in Shenandoah County and, under State Supreme Court ruling, an aggrieved person, in order to appeal the decision of the Zoning Administrator, must live within reasonable proximity of the subject property. Mr. Pollack does not meet that is requirement; therefore, this is a moot application. ederick antlBoard (pZoning Appeals 1537 mutes o arc 16, 200 Chairman Scott asked the Board members what they desire to do at this time. Mr. Givens stated it is his understanding that if standing is not found, the Board should not hear the appeal application and he made a motion to deny hearing this application. Mr. Pollack asked, "Aren't you going to hear from the applicant ?" Mr. Cheran again stated the applicant has no standing, and Mr. Pollack then stated that he is the owner of the property. Mr. Cheran reiterated that if it isn't recorded in the Clerk's Office, he is not the owner of the property. Chairman Scott asked Mr. Cheran to clarify what the County Attorney has determined on this matter. Mr. Cheran responded the County Attorney verified the information that staff had researched from the Virginia State Supreme Court about an aggrieved person filing an appeal. The Court's ruling concerning an aggrieved person is meant to allow the locality some protection from overzealous appeals of its zoning ordinances. Mr. Cheran checked right before this meeting to find out if the property owner had changed or if we even received a Power of Attorney from the property owner. Our application package states, if you're being represented by counsel or other people, you must fill out a Power of Attorney. Therefore, the applicant is not aggrieved, doesn't have any interest here and doesn't own or occupy any real property in Frederick County. It is not necessary for the BZA to comment on this; the Circuit Court can make a decision if this applicant so desires. Mr. Givens asked Mr. Rod Williams, Frederick County Attorney, if you have a deed for a property to be transferred, does it have to be recorded to be transferred. Mr. Cheran stated it has to be recorded. Mr. Pollack stated that he happens to be an officer of the Court, and that is not the law. He is stated he has a deed to this property. Mr. Cheran stated there is no proof of delivery. Chairman Scott addressed Mr. Pollack and asked him to please let the BZA try to understand and work their way through this issue. Mr. Cheran stated that since Mr. Pollack has made the trip here today that Ms. Arlotta, as a Notary, can swear in Mr. Helsley and the BZA can hear the appeal if they so desire. Mr. Helsley is the property owner, and as the aggrieved person, has standing in this appeal. Chairman Scott asked for a motion. Mr. Givens withdrew his original motion, but he feels we should establish Mr. Helsley's standing. Mr. Cheran explained that if Mr. Helsley testifies that he is the property owner, then Mr. Pollack can represent Mr. Helsley. Chairman Scott detennined that a motion is not needed. The Board is in agreement to do this. Ms. Arlotta swore in Mr. Helsley by asking him to state his name, and to swear that he is the property owner of 2032 Martinsburg Pike. Ms. Arlotta asked Mr. Helsley to raise his right hand and to swear to tell.the whole truth in his testimony and Mr. Helsley stated yes, he swears to tell the truth. Mr. Cheran stated we are satisfied that Mr. Helsley does have standing and he is represented by Mr. Brad Pollack. Mr. Cheran presented the staff report. He stated that the Zoning Administrator had received a zoning violation complaint on the property in question, which is the AT &T property. The complaint had to do with public utilities, setback requirements and uses in the RP (Residential Performance) Zoning District. Section 165- 402.02 of the Frederick County Zoning Ordinance provides for permitted land Werick(;o nty Board Zoning Appeals 1538 Mmutes of Narc"h 16, 200 uses in the RP district. Subsection B of the ordinance states that structures are to be erected or land used for one or more of the following uses and 96 under this section allows for `Utilities necessary to serve residential uses, including poles, lines, distribution transformers, pipes and meters ". This is a by -right use, not a conditional use or land use action. 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 Administrators and the current Zoning Administrator have determined that utilities set forth by the Zoning Ordinance are permitted in all of its residential districts. Mr. Cheran continued that staff is requesting 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 and that the subject property does not have a zoning violation. Mr. Wells asked the size of the building and Mr. Cheran responded it's about 3,000 square feet after the add -on. Mr. Wells said usually when you speak of utilities, it's a box, not a 3,000 square foot building. Mr. Cheran stated that if it's a utility use, the County doesn't discriminate concerning the size. Mr. Cheran further clarified that AT &T calls it a point -of- presence site or "POP" site. Mr. Wells asked if the equipment inside the building is operating or is it just sitting there? Mr. Cheran replied that he can't answer that, but he believes it's probably both because they have a battery back -up. Mr. Brad Pollack approached the podium and identified himself as representing Mr. Helsley. Mr. Pollack stated that Mr. Helsley consulted him in October about the AT &T building, complaining that he wasn't able to sleep at night because it made so much noise. It has air conditioning units and some sort of large diesel generator. But Mr. Helsley showed him a series of pictures, which Mr. Pollack handed to the Board members. These signs and the building next to where Mr. Helsley tried to sleep every night were scaring him greatly. Mr. Helsley had done research on these facilities that had blown up and had information on the dangers of hydrogen, which is kept onsite. Mr. Helsley feels that AT &T is putting his life in danger. Mr. Pollack stated they're not saying what AT &T is doing there is generally a public nuisance, but AT &T has chosen to have this facility in a residential area, right next to Mr. Helsley's house. Mr. Pollack did some checking and then filed complaints on -line. Their complaints are that this is basically a telecommunications facility that has not complied with Section 165- 204.19 dealing with telecommunications facilities, but more specifically, that in no way shape or form is this a utility necessary to serve residential uses, including poles, lines, distribution transformers, pipes and meters. This is an industrial building and it violates the setbacks. Mr. Pollack said they are not asking that these buildings be torn down. All they want the Board of Zoning Appeals to do is to overrule Mr. Cheran's good faith decision and say that this is not in compliance with zoning. Mr. Pollack stated they have violations of 165- 402.02, 165- 402.09, and 165- 204.19. Also, the Commissioner of the Revenue has determined that the use going on at this facility is industrial. And, according to the Board of Equalization, they will reduce the value of his property because of this awful building next door. Mr. Pollack continued that in the General Business District, among the allowed uses are communication facilities and offices including telephone, telegraph, radio, television and other communications. This building might be allowed in General Business District, it's not in Residential Performance. It's also allowed possibly as a public utility distribution facility in General Business. It may be allowed in 133 Industrial Transition, where uses include communication facilities and offices, rrrr 1539 Mid is oFantOoa2 %Zoning Appeals including telephone, telegraph, radio, television and other communications. It's also mentioned in M1 Light Industrial. Mr. Pollack stated that considering what's before the Board of Zoning Appeals under the current law and the current facts, they pray that the Board of Zoning Appeals would recognize that this building and this facility is not in compliance with the Zoning Ordinance. Mr. Cheran read 165- 402.09 Setbacks for Other Uses in the RP Zoning District: The following setbacks shall apply for uses not otherwise specified. For anything not specified, the setbacks are 35 feet in front, 15 feet for side, and 50 feet rear. The site plan shows 15.5 feet on the side so they're within the setback. Mr. Cheran stated we are not here to talk about taxes; the question is, do we allow utilities in the RP Zoning District. In processing a site plan, Frederick County requires comments from reviewing agencies, such as the Fire Marshall who looks for hazardous materials. The Fire Marshall, the Building Official, VDOT, Service Authority and Planning and Zoning were all OK with allowing this site plan. Further, telecommunication towers are set aside as a Conditional Use Permit. They're permitted in the RP Zoning District. As a matter of fact, a Conditional Use Permit for a tower was applied for on this property and was denied by the Board of Supervisors. All the required measures were completed by the applicant for this utility use. Mr. Shirley asked if the Zoning Code has a specific definition of a utility. Mr. Cheran responded no. However, if you look at the Definitions and Word Uses section in the Code, it states that any word, term or phrase used in this Zoning Ordinance not defined below shall have the meaning ascribed to such word, term or phrase in the most recent edition of Merriam - Webster's Dictionary unless, in the opinion of the Zoning Administrator, established customs or practices in Frederick County, Virginia justify a different or additional meaning. Chairman Scott asked if anyone is present who would like to speak in favor of or against this appeal application. There were no public comments. Chairman Scott closed the public hearing portion of the meeting. Discussion Mr. Givens stated that this Board's only concern is the Zoning Administrator's decision that this use is allowed in the RP District. Mr. Givens further stated from what he's hearing, the building does have a use; it is providing a utility service. Chairman Scott stated there's fiber optics in the building so it's definitely beyond residential use. Mr. Givens said that may be true, but it is providing for residential uses and, accordingly, it would be a permitted use in the RP District. Mr. Givens made a motion to uphold the Zoning Administrator's decision. Mr. Shirley seconded the motion. Chairman Scott asked the Board if they had any discussion before the vote. Mr. Wells asked if industrial and utility are the same things. Mr. Cheran responded that is a distinction of the Commissioner of Revenue. Mr. Lowman asked if the Board of Supervisors turned down a Conditional Use Permit for the original building. Mr. Cheran said that was for a telecommunications tower. The reason it was denied is because this part of Route 11, according to the Comprehensive Plan, is considered a Developmentally Sensitive Area with historic considerations. Mr. Shirley stated that he seconded Mr. Givens' motion because he thinks the Zoning Administrator's decision is correct and that if they're not using it in the proper manner, that isn't for this Board to decide. Wederick o nt Board pZoningAppeals 1540 of Ivare 16, 20 0 Chairman Scott called for the vote. Mr. Wells stated that a utility building is permitted in the RP and he voted yes; however, he feels this needs to be investigated. The vote to uphold the Zoning Administrator's decision and deny the appeal application was unanimous. Other Mr. Cheran stated there is one bill in Richmond that will affect Boards of Zoning Appeals. It's filing of fees and the aggrieved party. The proposed bill would allow the aggrieved party to ask the Circuit Court for reimbursement of any legal fees. That is not a concern of this Board; that will be up to the Circuit Court. As there was no further business, the meeting adjourned at 4:30 p.m. Respectfully submitted, Kevin Scott, Chairman l , Bev Dellinger, Secretary E Minutes oPort..Ooard %Zoning Appeals 141