BZA 12-20-11 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
December 20, 2011
3:25 p.m. CALL TO ORDER
1) Determination of a Quorum
2) Minutes of November 15, 2011
PUBLIC HEARING
3) Variance Request #05 -11 of Smithfield Properties, for an 86.7 foot variance of the 100
foot right side setback resulting in a 13.3 foot setback, a 40 foot variance of the 50 foot left
side setback resulting in a 10 foot setback, and a 6.5 foot variance of the 50 foot rear
setback resulting in a 43.5 setback. to enable construction of a single family dwelling. The
subject property is located at 417 Frog Hollow Road, and is identified with Property
Identification Number 22 -A -20 in the Gainesboro Magisterial District.
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 15, 2011.
PRESENT: Jay Givens, Vice Chairman, Back Creek District; Gary Oates, Stonewall District;
Eric Lowman, Red Bud District; Bruce Carpenter, Gainesboro District; and R. K. Shirley, III,
Opequon District.
ABSENT: Kevin Scott, Chairman, Shawnee District; and Robert W. Wells, Member -At-
Large.
STAFF
PRESENT: Mark R. Cheran, Zoning Administrator; Dana M. Johnston, Zoning Inspector; and
Bev Dellinger, BZA Secretary.
CALL TO ORDER
The meeting was called to order b Vice Chairman Givens at 3:25 p.m. and he
determined there is a quorum.
Vice Chairman Givens inquired if there are any applications pending for December. Mr.
Cheran responded there are no new applications at this time; the cut -off date is Friday,
November 18, 2011.
On a motion made by Mr. Carpenter and secondedby Mr. Oates, the minutes for the May
17, 2011 meeting and the June 21;2011 meeting were' unanimously approved as presented.
PUBLIC HEARING
Variance Request #04 -11 of Smithfield Properties, for a 76.7 foot variance of the
100 foot right side setback, a 49 foot variance of the 50 foot left side setback and
a 4.6 foot variance of the 50 foot rear setback, to enable construction of a single
family dwelling. The subject property is located at 417 Frog Hollow Road, and is
identified with Property Identification Number 22 -A -20 in the Gainesboro Magisterial
District.
ACTION VARIANCE DENIED
Mr. Johnston presented the staff report. The applicant is requesting a 76.7 foot variance of the
100 foot right side setback, a 49 foot variance of the 50 foot left side setback and a 4.6 foot variance of
the 50 foot rear setback. Mr. Johnston stated that the reasons for the request are that the dwelling cannot
be constructed at the current setback regulations, the size and topography of the property makes it
challenging to construct a dwelling, the drainfield and well locations prohibit the dwelling to be
Frederick County Board of Zoning Appeals Page 1574
November 15, 2011
constructed in any other location to allow the construction of a 24 foot by 35 foot dwelling on the site.
Mr. Johnston concluded that if this variance is approved, the new setbacks would be 23.3 feet on
the right side, one foot on the left side and 45.4 feet to the rear. Staff believes that this property meets
the threshold requirements of an undue hardship as to the use of the property and the application meets
the requirements of the Code of Virginia, 1950 as amended, 15.2- 2309(2) and Section 165-2001C of the
zoning ordinance. Staff recommends approval of this variance.
Mr. Richard Butcher of Smithfield Properties stated that the permit was applied for in 2009 and
approved in 2010, and the structure is already on the site All the pier holes have been dug, the concrete
has been poured, and places have been bolted together. Mr. Butcher said they can't move the structure
any further down the hill because of the drainfield and the slope, and they can't move it behind the hill
because of the well. There was the same size trailer there prior and they're replacing it with the same
size 24' by 35'. The well and drainfield were placed there in 1967.
Vice Chairman Givens stated that he understands what Mr. Butcher is saying about permits
being issued and the structure is in place, but he asked Mr. Butcher why they couldn't move it to the
right of the property and increase that side setback by more than one foot. Vice Chairman Givens said it
seems to him they ought to have a minimum ',of.ten feet.
Mr. Butcher responded that the prior trailer actually encroached on the adjoining property by two
feet and they have already moved it over three, feet. To move it further over, the way the land goes,
you'd be parking your cars on the hill. They had been issued' the permits with the setbacks, and they
were told to go ahead. Mr Butcherthad both sections brought toithe property, 22 holes were dug, all of
them filled with concrete, and a company had to come to set up the trailer. Mr. Butcher said to move the
trailer would be very, costly. They would have to take the trailer from the lot, store it, re -drill all 22
holes and remove the concrete, dig 22 more holes and so;on. They have already paid for this once since
they were told it was okay.
Mr. Carpenter stated that if Mr. Butcher made it through the entire pennit process, he's confused
as to why there's a variance request before the BZA today.
Mr., Johnston told Mr: Carpenter that the Planning Department received a complaint. Prior to
that and based on the information they had before them from the permit, the permit was signed. They
found out later that the dwelling that was there before burned down in 2004. Frederick County's
ordinance allows one year tore- establish the use. Because the dwelling was not replaced within one
year is the reason we're,6efore'the BZA today.
Vice Chairman Givens opened the public hearing portion of the meeting. Vice Chairman Givens
asked if anyone present wished to speak in favor of the variance request; no one responded. He then
asked if anyone present wished to speak against the variance request.
Mr. Earl Nicholson, Jr., stated that he lives at 405 Frog Hollow which is the adjoining property.
Mr. Nicholson handed out some documents to Board members. Mr. Nicholson explained that Mr. James
Saville, who owned the property at one time, put a trailer on the property. It was about a 30 foot or 40
Frederick County Board of Zoning Appeals Page 1575
November 15, 2011
foot trailer with a lean -to attached, which set a good distance from Mr. Nicholson's house. Mr.
Nicholson's father bought the property and placed a double wide trailer towards the top of the property
and then removed the small trailer and lean -to. Mr. Nicholson, Sr., attempted to get a permit for the
double wide but he was told he could not get a permit because of the property lines and the property was
said to be a worthless piece of property. The double wide just sat on the ground and was never hooked
up. After Mr. Nicholson's father died, the property was sold to the applicants. Mr. Nicholson continued
that when the applicants applied for a permit, they claimed that their trailer had burned and they were
replacing it. Neither Mr. Johnston nor Mr. Cheran were aware that the trailer had burned several years
before. From the beginning, Mr. Nicholson told them that the trailer that burned was not on a
foundation and was just sitting there. According to Mr. Nicholson, since he complained, the applicants
have tried to get it all "buttoned up
As there were no further comments, Vice ChairmanGivens closed the public hearing portion of
the meeting.
Discussion
Vice Chairman Givens stated that, from his perspective, this is a platted lot and without some
variance, it does become an unusable lot. Vice Chairman Givens is having a lot of problems with
granting a one foot setback. He realizes there would be expense involved, but he believes that a setback
of at least ten feet from the side property line could.be achieved. Vice Chairman Givens said he wasn't
sure if any adjustment could be made to the advertis&i setback He believes the Board either has to
approve or deny the request as it was advertised. If the applicant would agree to change the setback, it
would have to come back to the BZA and be re- advertised with the agreed to setback. Further, one of
the reasons Vice Chairman Givens has a problem with the one foot setback is the potential for
something to happen in the future that could affect the sale of Mr. Nicholson's property.
Mr. Carpenter asked Mr. Butcher when his group acquired the property. Mr. Butcher responded
they purchased the property on September 28 „2007.
Mr. Butcher said that if they'd been told from day one to take the trailer over ten feet, that would
be one thing. but they were given the permit and told they could continue on.
Vice Chairman Givens asked Mr. Butcher when they bought the property in 2007, was the
dwelling they,sa_id burned down already burned down. Mr. Butcher said that dwelling burned down in
2004 and they never once said. they owned the property when the dwelling burned down. Vice
Chairman Givens'asked how did the assumption come into play that the dwelling burned down less than
a year before the building permit request.
Mr. Johnston told Vice Chairman Givens that at the time the permit was applied for, there was a
plat that was included. The plat showed the location of the burned dwelling. Mr. Johnston stated that
the permit was issued in error because the dwelling burned down in 2004.
Mr. Shirley asked when the error was discovered, was that communicated to the owners, how far
into the building process were the owners when they were told, and did the owners continue
construction or did they stop immediately. Mr. Butcher stated they got a stop work notice and they
Frederick County Board of Zoning Appeals Page 1576
November 15, 2011
stopped. That was a few months ago. Mr. Shirley asked if the work they had completed was done
before the stop work notice and Mr. Butcher responded yes.
Vice Chairman Givens asked Mr. Johnston if the stop work order was issued after you received a
citizen complaint and Mr. Johnston stated that is correct. Vice Chairman Givens asked how long after
the building permit was issued and work initiated was the complaint received. Mr. Johnston said it was
about one and one half years. Vice Chairman Givens asked how long the work had been going on when
the complaint was made and Mr. Butcher stated one and one half years.
Mr. Nicholson approached so that he could speak again and the Board members granted Mr.
Nicholson that opportunity. Mr. Nicholson said the trailer was set -up on blocks until it came time for
the conditional use hearing, then they leveled it off and did the work that Mr. Butcher mentioned. Mr.
Nicholson feels that if they said it's all been done at the meeting;, that it would be a shame to have to
take it down.
Mr. Shirley asked Mr. Nicholson when he saw the:construction, was he anticipating it being that
close or what was your anticipation not to complain until just recently. Mr. Nicholson stated it wasn't
recently; he immediately complained. Mr. Shirley again asked vMr. Nicholson when he called the
Planning Department with his first complaint and Mr. Nicholson said he wasn't sure when the double
wide was delivered; maybe eight months ago."
For the benefit of the BZA members, Mr. Oates explained that this request came through the
Planning Commission for a Conditional Use Permit a few months ago. It was denied by the Board of
Supervisors.
Mr. Cheran stated that by ordinance, a non conforming use can be re- established if it's been
longer than a year by Board approval: But that has no relevance with today's request.
Mr. Carpenter made a motion that Variance Request #04 -11 of Smithfield Properties be denied.
Mr. Oates seconded the motion and it passed by a majority vote for denial.
Other
There being no further business, the meeting adjourned at 4:00 p.m.
Respectfully submitted,
Jay Givens, Vice Chairman
Bev Dellinger, Secretary
Frederick County Board of Zoning Appeals Page 1577
November 15, 2011
VARIANCE APPLICATION #05 -11
SMITHFIELD PROPERTIES
Staff Report for the Board of Zoning Appeals
Prepared: December 5, 2011
Staff Contact: Dana M. Johnston, Zoning Inspector
This report is prepared by the Frederick County Planning Staff to provide information to she 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:
December 20, 2011 Pending
LOCATION: 417 Frog Hollow Road
MAGISTERIAL DISTRICT: Gainesboro
PROPERTY ID NUMBER: 22 -A -20
PROPERTY ZONING USE: Zoned: RA (Rural Areas)
Land Use: Residential
ADJOINING PROPERTY ZONING USE:
North: RA (Rural Areas)
South: RA (Rural Areas)
East: RA (Rural Areas)
West: RA (Rural Areas)
Use: Residential
Use: Vacant
Use: Residential
Use: Residential
VARIANCE REQUESTED:
The applicant is requesting an 86.7 foot variance of the 100 foot right side setback resulting in a 13.3
foot setback, a 40 foot variance of the 50 foot left side setback resulting in a ten foot setback, and a
6.5 foot variance of the 50 foot rear setback resulting in a 43.5 setback, to enable construction of a
single family dwelling.
REASON FOR VARIANCE:
With current setbacks, size topography, location of drainfield and well, there is no buildable area
to construct a dwelling.
Variance Application #05 -11 Smithfield Properties
December 5, 2011
Page 2
STAFF COMMENTS:
The subject parcel was created on January 6, 1966, when the 0.4 acre parcel was transferred from
James Saville (Frederick County Clerk's office, Book 328, Page 639). Frederick County adopted
zoning in 1967. Therefore, this lot was created prior to the adoption of zoning. 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, 50 feet to the rear, 100 feet to the right. and 50 feet to the left.
Based on the limited size. topography, the placement of drainfield and well, and the large setbacks
associated with the RA zoning district, staff believes this renders the property a challenge on which
to place a dwelling. The applicant is requesting an 86.7 foot variance of the 100 foot right side
setback resulting in a 13.3 foot setback, a 40 foot variance of the 50 foot left side setback resulting in
a ten foot setback, and a 6.5 foot variance of the 50 foot rear setback resulting in a 43.5 setback
STAFF CONCLUSIONS FOR THE DECEMBER 20, 2011 MEETING:
The Code of Virginia 15.2 -2309 (2), states that no variance shall be granted unless the application
can meet the following requirements:
I) 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. Therefore, this
application for a variance meets the requirements as set forth by The Code of Virginia 1950 as
amended 15.2- 2309(2), and Section 165- 1001.02 (C) of the Frederick County Zoning Ordinance.
The strict application of the Frederick County Zoning Ordinance does produce an undue hardship as
required by the Code of Virginia. Staff would recommend approval of this variance application.
VAR 05 11
Smithfield Properties
PIN: 22 -A -20
Variances:
86.7ft Right Side
6.5ft Back Side
40ft Left Side
Application
Parcels
Building Footprints
B1 (Business, Neighborhood District)
B2 (Business, General Distrist)
83 (Business, Industrial Transition District)
EM (Extractive Manufacturing District)
HE (Higher Education District)
M1 (Industrial, Light District)
M2 (Industrial, General District)
MH1 (Mobile Home Community District)
MS (Medical Support District)
OM (Office Manufacturing Park)
R4 (Residential Planned Community District)
R5 (Residential Recreational Community District)
RA (Rural Area District)
RP (Residential Performance District)
VAR #05 -11
Smithfield Properties
PIN: 22 -A -20
Variances:
86.7ft Right Side
6.5ft Back Side
40ft Left Side
0 75 150 300 Feet
Note:
Frederick County Dept of
Planning Development
K
107 N Kent St
Suite 202
Winchester, VA 22601
540 665 5651
Map Created: Dec 08, 2011
Staff: djohnston
APPLICATION FOR VARIANCE
FREDERICK COUNTY, VIRGINIA
Variance Application 05-j/
Submittal Date ///j1
OFFICE USE ONLY
Submittal Deadline 6/7/
For the BZA Meeting of 1.2 /to/,
Fee Amount Paid Initials: 7> )5 Receipt
Sign Deposit Paid
MUST BE TYPED OR FILLED OUT IN INK PLEASE PRINT
1. The applicant is the owner K other (Check one) Please list all owners, occupants (adult
individuals as well as any entities occupying the property), or parties in interest of the property.
2. APPLICANT: OCCUPANT: (if different)
NAME: .m;k¢id Ptpeikr5 NAME:
ADDRESS: IQ neWd Avc. ADDRESS:
TELEPHONE: 6 s3q Z SZ 5 TELEPHONE:
The property is located at (give exact directions and include State Route Numbers):
1 -H 7 1 Allow to/ A d dolloow e, il��eixc-L rF
142r 1_4,i e (NI /(90
i
4. The property has a road frontage of 75. feet and a depth of 217, $U feet and consists of
i f acres (please be exact).
5. The property is owned by Sin,L4c iJ �arit5 as evidenced by deed from
P Gu /*diviso recorded (previous owner) in deed book no.SZ.S- on page 1.039
7
North
East
South
West
or instrument number of the deed books of the Clerk
of the Court for Frederick County. Please attach a copy of the recorded deed.
6. Magisterial District: e9Cji \oat,
7. Property Identification Number (P.I.N.):
8. The existing zoning of the property is:
9. The existing use of the property is:
10. Adjoining Property:
11. Describe the variance sought in terms of distance and type. (For example: "A 3.5' rear yard
variance for an attached two -car garage.
g L (`2.3' SeArtck)
L-e1)- L (ID' 5e.)-63:
IZee&( h,S S,S 1-b4ak)
12. List specific reason(s) why the variance is being sought in terms of such as:
Exceptional narrowness, shallowness, size or shape of property, or
Exceptional topographic conditions or other extraordinary situation or condition of property, or
The use or development of property immediately adjacent thereto
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8
ZONING
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Name and Property Identification tificationNuum
Address
3011 s- Crt 'n 5.
PzAtyv'))Z, VA Z2/9))
Name JgAMCS L 19;C)s,, ff
Property ZZ_ -'Gi
Name ZA11 m, M if bAk5tin Se.
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V\J AG1. kr` ¥n
Property 22_ yy�� -2 I
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Name C yea c tr
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3S4 tRu 14011(5L-. Rawl.
1; L W1nes Vp 22-
Property zZ- tl y3
Name
Property
Name
Property
Name
Property
Name
Property
Name
Property
13. Additional comments, if any:
9
14. The following names and addresses are all of the individuals, firms, or corporations owning property
adjacent to the property for which the variance 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:
15. Provide a sketch of the property (you may use this page or attach engineer's drawing). Show
proposed and /or existing structures on the property, including measurements to all property lines
and to the nearest structure(s) on adjoining properties. Please include any other exhibits,
drawings or photographs with this application.
10
I (we), the undersigned, do hereby respectfully make application, and petition the Frederick County
Board of Zoning Appeals (BZA) to grant a variance to the terms of the Frederick County Zoning
Ordinance as described herein. I agree to comply with any conditions for the variance 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 understand that the sign issued to me when this application is submitted must be placed at the front
property line at least seven (7) days prior to the BZA public hearing and maintained so as to be
visible from the road or right -of -way until the hearing.
I hereby certify that all of the statements and info on contained herein are, to the best of my
knowledge, true.
SIGNATURE O F APPLICANT
DATE i/ /i�111 L
SIGNATURE OF OWNER
AGREEMENT
VARIANCE b5
(Number to be assigned by the Planning Dept.)
(if other than applicant)
BZA PUBLIC HEARING OF /oVq0//
SIGNED:
DATE:
APPROVAL
DENIAL
OFFICE USE ONLY-
DATE-
BZA CHAIRMAN
ACTION:
11
DATE