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BZA 01-18-11 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 January 18, 2011. PRESENT Kevin Scott, Chairman, Shawnee District; Gary Oates, Stonewall District; Jay Givens, Back Creek District; R. K. Shirley, 111, Opequon District; Eric Lowman, Red Bud District and Robert W. Wells, Member -At- Large. ABSENT: Bruce Carpenter, Gainesboro District. STAFF PRESENT Mark R. Cheran, Zoning Administrator; Eric R. Lawrence, Planning Direction; 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. Wells and seconded by Mr. Givens, the minutes for the November 16, 2010, meeting were unanimously approved as presented. Chairman Scott inquired if there are any applications pending for February. Mr. Cheran responded there are no applications at this time; the cut -off date is Friday, January 21, 2011. ELECTION OF OFFICERFS AND ADOPTION OF BYLAWS Chairman Scott acknowledged there are no changes, alterations or deletions to the previous Bylaws, and the Bylaws are adopted as presented. Chairman Scott opened the floor for nominations for Vice Chairman. Mr. Scott nominated Mr. Givens. Mr. Lowman seconded the nomination and the nominations were closed for Vice Chairman. The vote was unanimous for Mr. Jay Givens as Vice Chairman. Chairman Scott opened the floor for nominations for Chairman. Mr. Shirley nominated Mr. Scott. Mr. Wells seconded the nomination and the nominations were closed for Chairman. The vote was unanimous for Mr. Kevin Scott for Chairman. Chairman Scott opened the floor for nominations for Secretary. Mr. Givens nominated Ms. Dellinger. Mr. Lowman seconded the nomination and the nominations were closed for Secretary. The vote was unanimous for Ms. Bev Dellinger for Secretary. Frederick County Board of Zoning Appeals Page 1563 January 18, 2011 Other Chairman Scott stated that Board members were asked to come in today to vote for approval of the November 16, 2010 minutes to ensure that the process with last month's Jordan Springs application could continue. As everyone is aware, the County has appealed the BZA's decision to sustain Jordan Springs appeal to the Circuit Court. Mr. Eric Lawrence, Director of the Planning Department, has come to the meeting today in order to give an update and answer questions that members may have. Mr. Lawrence stated that following the BZA's decision in November, the County Board of Supervisors felt they disagreed with the action so they have gone through the process and filed the appeal of the BZA's decision. One step in that process was to have official minutes from the meeting and you have today endorsed those minutes and they'll be submitted to the Court. Mr. Lawrence continued that historically the County would have to defend the County's position and defend the BZA's position. Through legislation which was adopted this past year, it says the BZA doesn't have to defend its decision. What is being done now through the legal process is, the full staff report and the approved minutes will be submitted to the Court and the County will present their position as to why they thought the decision was wrong, and Jordan Springs through their representation will be given a chance to present their case as to why the BZA made the right decision. Members will be kept informed, but the BZA itself won't be involved in the legal process. Chairman Scott stated that it's his understanding that the County's position is they want the rezoning process to go through. Mr. Lawrence said the County believes that the proffers didn't support this. Essentially, the BZA's decision in saying that public buildings, as defined in the Solid Waste Ordinance, is any building where the public is welcome, goes beyond Jordan Springs. The County's position is that's a lot broader than was ever envisioned when the ordinance was written. The reasons for the appeal were not only that the County believes that Jordan Springs wasn't permitted under the proffers, but the bigger picture is the County thinks the BZA opened up public buildings, across the board, in all of our commercial and industrial districts to welcome anything that's open to the public. Mr. Lawrence gave as an example - a WalMart is open to the public so WalMarLs could go in any commercial /industrial zoning district. Mr. Lawrence knows that's not what the BZA intended, but it's certainly not what the County intended. The Board of Supervisors at its last meeting adopted a definition into the ordinance which defines public buildings. Mr. Lawrence told members that staff should have presented them with more information; we didn't understand where the applicant was going to come from, as far as their case. In the future when there is an appeal of the Zoning Administrator's decision, you'll probably see either Mr. Lawrence or the County Attorney making the presentation, because it's only appropriate that the County defend the Zoning Administrator. Mr. Givens asked Mr. Lawrence about definitions being in different sections. Mr. Givens believes you can have a definition section of the entire County Code. Mr. Lawrence commented that he went online to the Virginia State Code and there are over 1,000 definition sections. The premise is that every chapter of the State Code is written specifically for a task at hand so that, while there's an introduction to the State Code that talks about definitions f certain things, ev individua chapter Frederick County Board of Zoning Appeals Page 1564 January 18, 2011 writes its own definition so that they can tailor the words toward the application in that chapter. Mr. Lawrence further stated that one way to look at it is that the Board of Zoning Appeals, in certain references, is the "Board," but in other references, the County Board of Supervisors is the Board ". It's hard to catch that one word that's universal in its application and that's why every section of the code will have its own definition section. Mr. Wells asked Mr. Lawrence how the County could have possibly perceived Jordan Springs as a public building, as written in the proffers. Mr. Lawrence explained that when people write proffers, they identify from our current ordinance the uses they want to do on the property, we identify the uses that the County doesn't want on the property and the resulting positive terms are the ones that go into a proffer statement. The public building term is allowed in all the industrial and business districts. Chairman Scott asked that the Board be informed of the Court date for the appeal. Mr. Shirley stated that he's always been under the impression that each case that the BZA hears is stand -alone and that the Board's decision doesn't set a precedent. Yet Mr. Lawrence is saying that part of the appeal process is because the BZA re- defined an ordinance for the entire County. Mr. Lawrence stated that more often than not, the BZA gets variance requests. For example, if someone requests a ten foot setback rather than a 20 foot setback. If the BZA grants the ten foot setback to one house, every house in the neighborhood is not getting a ten foot setback. When you create a definition for a use, that creates a ripple effect. People would have to argue to use it and apply it elsewhere, but it opens the door for that argument. Chairman Scott stated that his outlook is he's not trying to shut anybody down; he's trying to find a way to keep it going, especially in the case of an existing business. Chairman Scott stated there is a BZA course being conducted beginning at the end of March in Richmond and concluding in Charlottesville, with some independent study in the middle. The County will cover members' expenses. Please let the Secretary know if you can attend. There being no further business, the meeting adjourned at 3:50 p.m. Respectfully submitted, is Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Page 1565 January 18, 2011