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BZA 05-17-11 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 May 17, 2011. PRESENT Kevin Scott, Chairman, Shawnee District; Jay Givens, Vice Chairman, Back Creek District; Gary Oates, Stonewall District; R. K. Shirley, 111, Opequon District; Eric Lowman, Red Bud District and Bruce Carpenter, Gainesboro District. ABSENT: Robert W. Wells, Member -At- Large. STAFF PRESENT Mark R. Cheran, Zoning Administrator; Eric R. Lawrence, Planning Director; Dana M. 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 was a quorum. On a motion made by Mr. Oates and seconded by Mr. Givens, the minutes for the January 18, 2011 meeting were unanimously approved as presented. Chairman Scott inquired if there are any applications pending for June. Mr. Cheran responded there are no applications at this time; the cut -off date is Friday, May 20, 2011. PUBLIC HEARING Appeal Application #01 -11 of Dr. Ayman Salem, who is appealing the decision of the Zoning Administrator as to Chapter 165 Zoning, Part 201 Supplementary Use Regulations, Signs, under Sections 165- 201.6G(7)(c) Height and 165- 201.6H(7)(c) Size, of the Frederick County Zoning Ordinance. The subject property is located at 241 Garber Lane, and is identified with Property Identification Number 64 -A -5 -C in the Shawnee Magisterial District. ACTION — APPEAL TABLED AT THE REQUEST OF APPLICANT - BOARD OF ZONING APPEALS SCHEDULED APPEAL APPLICATION FOR THE JULY 19, 2011 MEETING Mr. Lawrence stated that the Board Members have in front of them a copy of a letter, received Friday, May 13, 2011, from Harrison & Johnston concerning today's appeal application. This letter is a request to table the appeal and to not further discuss it today. Mr. Lawrence offered two options for the Board: accept the request and table the appeal for a specific length of time or deny the applicant's request to table and proceed through the process. Mr. Lawrence continued that in the letter, the Frederick County Board of Zoning Appeals Page 1566 May 17, 2011 applicant's representative is asking that the application be tabled so they can further refine how they wish to resolve the matter. Mr. Oates stated he would support tabling the application for 60 days. Chairman Scott asked the applicant if he wanted to speak at this time. Mr. Tim Mayfield is representing Dr. Salem in this matter. The reason they are requesting the appeal be tabled is because they have retained the services of a new architecture firm to design a different sort of scheme that will meet Frederick County code requirements. Mr. Mayfield thinks a tabling of 60 days would be appropriate and enough time in order to apply for a new building permit. Mr. Oates made a motion to table Appeal Application #01 -I 1 of Dr. Ayman Salem for 60 days. Chairman Scott suggested that the motion be worded to table Appeal Application #01 -11 for 60 days, and /or until the July 19, 2011 meeting. Mr. Carpenter seconded the motion that Appeal Application #01 -11 be tabled for 60 days and /or until the July 19, 2011 meeting. The vote to table was unanimous. Variance Request 402 -11 of Connie Carter, for a 13 foot front yard variance, resulting in a 47 foot front yard setback, for a deck. This property is located at 130 Rhinehart Lane, and is identified with Property Identification Number 28 -A -22 in the Gainesboro Magisterial District. ACTION — APPEAL TABLED BY THE BOARD OF ZONING APPEALS — VARIANCE APPLICATION SCHEDULED FOR THE JULY 19, 2011 MEETING Mr. Cheran presented the staff report. The applicant applied for a building permit after staff received a complaint that remodeling of the structure was taking place without a building permit. The applicant added a front deck, which was larger than the original deck, as noted when staff visited the site. The current setbacks for the RA district are 60 feet to the front, 50 feet to the rear and 50 feet on both sides. The larger deck that was added made the front setback 50 feet to the front and caused the violation of the Frederick County Code in the RA zoning district. Mr. Cheran continued that this property does not meet the threshold requirement of hardship as to the use of the property. An undue hardship would apply only if a principal use could not be built on this parcel. This variance request does not meet the intent nor the requirements of The Code of Virginia 1950 as amended 15?- 2309(2) and Section 165- 1001.2(C) of the Zoning Ordinance as it relates to the threshold of a hardship. Staff would recommend denial of this variance request. Mr. Cheran told the members that their agenda packet includes a copy of the applied -for building permit, and that the applicant, Ms. Carter, is available to answer questions. Mr. Givens questioned why the permit and the staff report state the front setback is 50 feet, yet the applicant is requesting a 13 foot variance and the plat shows a 47 foot setback. Which is correct? Frederick County Board of Zoning Appeals Page 1567 May 17, 2011 Mr. Cheran answered that the 47 foot setback is what the applicant is requesting. Mr. Givens asked if the building permit that's been applied for is incorrect and Mr. Cheran replied that is correct. Mr. Givens asked if the applicant needs a 47 foot setback and Mr. Cheran responded yes. Mr. Oates asked if the 47 foot setback is measured from the edge of road or edge of right -of -way. Mr. Cheran responded Rhinehart Lane is a private lane so it would be from the edge of road. Mr. Oates asked if there is an easement on the lane and Mr. Cheran stated just the easement to get back to the lane. Mr. Oates wondered if there was an actual dedicated easement of 15, 20, or 50 feet. Mr. Cheran deferred to the applicant. Chairman Scott asked Mr. Cheran the date of the photograph in the agenda packet showing the original deck. Mr. Cheran responded that this photo was taken from the Assessor's file and did not have a date on it. Chairman Scott asked the dimensions of the original deck. Mr. Cheran said the Assessor's file didn't indicate the dimensions. Ms. Connie Carter approached the podium and identified herself as the sole owner of the property. Ms. Carter stated she purchased the property in March 2007. Due to home owner's insurance demands, Ms. Carter was told she needed to put a railing on the deck. In 2008, Ms. Carter had dormers put on the house, but she didn't apply for a building permit to do - so. One of the Frederick County building inspectors called her and told her to cease work on the house, and after visiting the site, he noted that the deck was new and was over - expanded from the joists underneath and the railing was not up to Code. Ms. Carter had railings put on the stairs, put new railings on the deck and put two new legs underneath to try to bring it up to Code. Ms. Carter stated that she followed the paperwork for the dormers in 2008. The building inspector stated that she did not have a permit for the deck, even though Ms. Carter said she didn't build it. She called back later in 2008 to find out where the permit stood and apparently Ms. Carter had put the wrong phone number on the application. In 2010, Ms. Carter started inquiring about the permit again and was told that because of the structure of the dormers, she would need an analysis by an engineer. She got that fixed and she again asked about the permit standing. In 2011, she's still struggling with the permit. Ms. Carter stated that the house itself is over the setback by five feet. To put a four foot landing on the front puts her nine feet over the setback. In order to keep the deck on her house, she would need a total variance of 47 feet. Ms. Carter asked the Board to allow her to keep her deck. Mr. Carpenter asked Ms. Carter the dimension of the deck. She stated it's 8x16. Mr. Carpenter asked if the deck that is currently on the house was on that house when she purchased it. Ms. Carter responded yes. Mr. Carpenter asked Ms. Carter if she enlarged the size of the deck and she said no. Mr. Oates asked Ms. Carter if the 47 feet is to the edge of an existing right -of -way or the edge of a road. Ms. Carter said she was at the edge of the road when she measured it. Mr. Oates has a concern that if a survey is done which shows a right -of -way and she's 60 feet off that, she could in fact need a 25 foot variance or something less. Mr. Oates asked if any research has been done to see if there is a dedicated easement for Rhinehart Lane. Ms. Carter stated she couldn't find anything. Mr. Lowman asked if Ms. Carter recalls when she purchased the property if there was an as -built survey or any type of survey at the closing. Ms. Carter doesn't recall that. Mr. Lowman stated that Frederick County Board of Zoning Appeals Page 1568 May 17, 2011 would help in the Board's decision to know if the existing deck was there. Chairman Scott asked for citizen comments, either for or against this variance. No one responded. Chairman Scott closed the public hearing portion of the meeting. Mr. Cheran stated if the Board so desires, staff can do research and work with the applicant to better understand what's needed. Mr. Shirley asked if staff disputes the fact that the existing deck was there when Ms. Carter bought the property. Mr. Cheran said no, staff is not disputing that. It was the consensus of the Board to have staff conduct research on this request in order to answer the questions needed to make a decision. Mr. Givens made a motion to table Variance Request 402 -11 until the July 19, 2011 meeting. Mr. Carpenter seconded the motion and the vote was unanimous. Other Chairman Scott thanked the County for allowing Mr. Oates, Mr. Wells and himself to attend the BZA classes. It has been very helpful. They finish up on June 6''. There being no further business, the meeting adjourned at 4:00 p.m. Respectfully submitted, Kevin Scott, Chairman Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Page 1569 May 17, 2011