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BZA 08-21-12 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 August 21, 2012. PRESENT: Jay Givens, Chairman, Back Creek District; Gary Oates, Stonewall District; Bruce Carpenter, Gainesboro District; Eric Lowman, Red Bud District; and Robert W. Wells, Member - At- Large. ABSENT: Kevin Scott, Vice Chairman, Shawnee District; and R. K. Shirley, 111, Opequon District. 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 by Chairman Givens at 3:25 p.m. Chairman Givens led the Pledge of Allegiance. On a motion made by Mr. Oates and seconded by Mr. Lowman, the minutes for the July 17, 2012 meeting were unanimously approved as presented. Chairman Givens asked if there are any applications for the September meeting. Mr. Cheran responded there will are no applications pending at this time. PUBLIC HEARING Variance Request #04 -12 of Burnt Factory United Methodist Church, submitted by Greenway Engineering, for a 52 foot front variance, resulting in an 8 foot front setback, and a 75 foot left side variance, resulting in a 25 foot left side setback, for a church addition. This property is located at 1943 Jordan Springs Road (Route 664) and is identified with Property Identification Number 56 -A -8 in the Stonewall Magisterial District. ACTION — VARINANCE APPROVED Mr. Johnston presented the staff report. The reason for this request is that the Church cannot expand their building. There is an existing cemetery to the north, there is an existing well and an existing side yard to the east which is already less than the required 100 foot building restriction line, and to the west, there is an existing fellowship hall, parking lot and septic system. Frederick County Board of Zoning Appeals Page 1599 August 21, 2012 Mr. Johnston continued with a brief history of the property. According to the Commissioner of Revenue's records, the Church was built in 1926, predating any zoning laws and regulations, and the current Church would be considered non - conforming. Frederick County adopted zoning in 1967. 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 2007 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, and in this case, 100 feet to the sides and rear. The applicant is requesting a 52 foot front yard variance and a 75 foot right side variance to accommodate an expansion of the fellowship hall and sanctuary. If the variances are approved, it would result in an 8 foot front yard setback and a 25 foot right side setback. The Health Department expressed the only concern, which was that the current drainfield may not accommodate the expansion of the fellowship hall and sanctuary based on the percentage of people and potential water usage. The property owner will be responsible for upgrading the current drainfield to the Health Department's regulations and satisfaction. This concern would be addressed at site plan and building permit stages. To conclude, Mr. Johnston stated that the Code of Virginia 15.2 -2309 (2), states that no variance shall be granted unless the application can meet the following requirements: 1. 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. Mr. Oates questioned Mr. Johnston as to why the variance was for a 25 foot, rather than a 24 foot, right side variance as requested on the application. Mr. Johnston responded it was determined that the extra foot would give the applicant more leeway. Mr. Oates also asked if the gravel road in front of the Church was a State road or a private right - of -way. Mr. Cheran stated that the road was abandoned by the State a few years ago and it's now a private access road. Chairman Givens asked if the left side setback is 60 feet. Mr. Johnston responded that because the adjoining property is more than six acres, the setback is 100 feet on the left side. Chairman Givens asked if they had 100 feet between them and the line, and if they don't, wouldn't that require a setback as well as the right side. Mr. Carpenter remarked that the expansion will not be any closer to the property line than the existing building is. Mr. Cheran stated that is correct, as long as the new construction does not encroach any further on the setback than the existing building, a left side setback is not required. Chairman Givens asked the applicant's representative to come forward. No one from Greenway Engineering came forward but Mr. John Kackley, the Chairperson on the Trustees Committee, expressed his desire that the BZA approve their petition for this hardship variance. Frederick County Board of Zoning Appeals Page 1600 August 21, 2012 Chairman Givens asked if anyone else wished to speak in favor of the applicant's request. Pastor Steve Melester spoke in favor of the request. At 3:45 p.m., Chairman Givens opened the public hearing portion of the meeting. There were five more people, which included Mrs. Pat Perry, Mr. Keith Roberts, Mr. Tom Duvall, Mr. Bill Shobe, and Mr. Robert Moss. They all spoke of the need for more room as the congregation has grown and is growing, and about the many contributions of the Church such as Out Reach and mission projects. There was no one present who wished to speak against the request and Chairman Givens closed the public hearing at 3:58 p.m. Discussion Mr. Oates again asked Mr. Johnston about the discrepancy between the application, which requests an 8.9 foot front variance, and the staff report, which states that an 8 foot variance is requested. Mr. Johnston responded that after review of the application, staff felt that 8 feet was the logical setback, giving them a little more room for error in the field. Chairman Givens stated his only concern with this request is how close they're getting to the road, which is 8 feet on a curve. However, Chairman Givens can hear from the testimony given today the need for the expansion. He asked if the Church had looked at other alternatives before coming before the BZA. Mr. Cheran stated that staff has worked with the Church for about three years on this matter. He stated the Church approached adjoining property owners about purchasing land, but no one was really interested in selling their property. Mr. Cheran said staff talked with the Department of Transportation and they did not have a concern with the front setback. Furthermore, site plan requirements must be met before the expansion can continue. Chairman Givens stated that even if the variance is granted today, they still have a site plan requirement to meet and have to satisfy the Health Department, and Mr. Cheran said that is correct. Chairman Givens stated that the Board has been able to answer the question as to whether a hardship exists, the public hearing indicates this will not have any negative impact on surrounding properties and this is a unique situation that is not generally shared in this area. Mr. Oates made a motion to approve Variance #04 -12 for a 52 foot front yard variance and a 75 foot right side variance. Mr. Wells seconded the motion and the vote to approve was unanimous. Variance Request #05 -12 of Wright Renovations, Inc., submitted by Marsh & Legge Land Surveyors, P.L.C., for a 73 foot right side variance, resulting in a 27 foot right side setback, and a 35 foot left side variance, resulting in a 65 foot left side setback, for a single family house to be built on an existing foundation. This property is located on the east side of Welltown Road (Route 611) approximately 0.25 miles south of the intersection with Rest Church Road (Route 669), and is identified with Property Identification Number 33 -A -13B in the Stonewall Magisterial District. Frederick County Board of Zoning Appeals Page 1601 August 21, 2012 ACTION — VARINANCE APPROVED AS AMENDED Mr. Johnston presented the staff report. .Based on the Gainesboro Fire Department records, the previous dwelling was destroyed by fire on January 3, 2010. The ordinance allows reconstruction of a non - conforming use within one year, but because the non - conforming use was not re- established within that one year period, the ordinance deems this use discontinued and the current ordinance requirements apply. The current ordinance requirements state that no primary construction can be constructed due to overlapping 100 foot building restriction lines. Frederick County adopted zoning in 1967. 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 rear and side yards. Frederick County amended its ordinance in 1989 and 2007 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, 60 feet to the rear and 100 feet on both sides. The applicant is requesting a 73 foot right side variance and a 35 foot left side variance resulting in a 27 foot right side setback and a 65 foot left side setback. The variance is to accommodate a 54x28 foot (1,512 square feet) single family dwelling with a 34x24 foot attached garage. Mr. Johnston noted that the original dwelling did not have an attached garage as part of the existing foundation and according to the Commissioner of Revenue's records, the original house was 1,463 square feet. Mr. Johnston stated that the only agency comment received was from the Health Department. On July 19, 2012, the Health Department provided documentation that the existing sewage disposal system appears to be functioning and, after minor repairs at the time of their inspection, they have no objection for a building permit for a three bedroom dwelling on the property. The Code of Virginia 1950 as amended 15.2- 2309(2) and Section 165- 1001.02 (C) of the Frederick County Zoning Ordinance states that no variance shall be granted unless application can meet the following: 1. 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. Mr. Mike Artz of Marsh & Legge Land Surveyors is representing the applicant. Mr. Artz stated that Mr. Wright purchased this property recently and as Mr. Johnston stated, the house did exist until January of 2010. Mr. Artz believes the parcel was created in the late 1970's as a family division lot and that's the reason it's a one acre lot. Mr. Artz stated that the applicant would like to have an attached garage; the alternative would be to move it and have it function as an accessory structure with a 15 foot side yard. Frederick County Board of Zoning Appeals Page 1602 August 21, 2012 Mr. Oates told Mr. Artz he can understand the hardship for the existing foundation since there are overlapping setbacks, but it's a stretch to consider it a hardship to add an attached garage. He understands doing a detached garage, it's only a 15 foot setback, but that's conforming with the ordinance. Mr. Oates further stated that the attached garage doesn't necessarily have to line up with the wall, it could move over four feet and stay within the requested setback for the existing foundation. Mr. Artz responded that Mr. Oates is correct, that could happen. Chairman Givens added that a corner could be put on it and move the whole thing over about four feet and the end would come down to a 31 foot setback, or you could skew it a little and achieve the 31 foot setback. Mr. Artz understands what's being said and he stated that this could be changed. Mr. Oates asked Mr. Artz if he would like to discuss this change with his client. Mr. Artz stated lie would be happy to amend his request to a 31 foot setback as opposed to a 27 foot setback. Chairman Givens opened the public hearing at 4:20 p.m. There being no one present who wished to speak either for or against this variance request, Chairman Givens closed the public hearing at 4:20 p.m. Discussion Mr. Wells inquired if the Board could consider the change as part of this request. Mr. Cheran stated that the request can be amended and it is all right to consider the amended request. Mr. Oates stated for the record that the variance request is now amended to a 69 foot right side variance, resulting in a 31 foot right side variance, with the 35 foot left side variance, resulting in a 65 foot setback, remaining the same. Before voting, Mr. Lowman asked Mr. Artz if he's okay with the amended request. Mr. Artz responded he is. Mr. Wells made a motion to approve Variance 405 -12 as amended. Mr. Carpenter seconded the motion and the vote to approve was unanimous. Variance Request #07 -12 of J. H. Yost, Ill, for a 26 foot right side variance and a 26 foot left side variance, resulting in a 24 foot setback on both sides, for a single family house. This property is located in Enon Springs Subdivision (Route 608), on Aster Trail, Lot 13, and is identified with Property Identification Number 69A- 1 -30 -13 in the Back Creek Magisterial District. ACTION — VARINANCE APPROVED Mr. Johnston presented the staff report. Mr. Johnston noted that the lots in Enon Springs are zoned RA (Rural Areas) but they're roughly the size of what you see in Shawneeland and Frederick County Board of Zoning Appeals Page 1603 August 21, 2012 Mountain Falls. The reason for the variance is that with the current RA setbacks, there is no buildable area to construct a dwelling. Frederick County adopted zoning in 1967. 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 rear and side yards. Frederick County amended its ordinance in 1989 and 2007 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 and 50 feet on both sides. The applicant is requesting a 26 foot right and left variance, resulting in a 24 foot setback on both sides. The variance is to accommodate a 5200 single family dwelling. Setback surveys would be required at the time of permit application. The Code of Virginia 1950 as amended 15.2- 2309(2) and Section 165- 1001.02 (C) of the Frederick County Zoning Ordinance states that no variance shall be granted unless application can meet the following: 1. 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 riot be changed by the variance. Mr. Rocky Yost, the applicant, did not have anything to add to Mr. Johnston's comments. Chairman Givens opened the public hearing at 4:26 p.m. Mr. Bill Horton stated that he has lived in this area, on Route 608, for 20 years. Mr. Horton doesn't object to another house being built, but he feels the contractors coming in to build the houses should be more responsible for the maintenance of the roads. Mr. Horton and another neighbor have taken it upon themselves to maintain the roads for the last 15 years; they've graded and put in ditches and culverts. They have a serious stormwater drainage problem and Mr. Horton feels someone needs to look at the problems and do something. Mr. Horton added that he doesn't want the County to get involved with this. Mr. Richard Smith lives across from the subject property, and he agrees with Mr. Horton. Basically, something needs to be done with the infrastructure. As there was no one else who wished to speak, Chairman Givens closed the public hearing at 4:30 p.m. Chairman Givens asked Mr. Cheran if there is anything that the Board of Zoning Appeals can do to assist with the road and drainage problems. Mr. Cheran stated these are private roads, which means the residents own the roads. Frederick County Board of Zoning Appeals Page 1604 August 21, 2012 Chairman Givens stated that, unfortunately, this isn't in the purview of the Board of Zoning Appeals to discuss this. Currently, new subdivisions with private roads usually have a Homeowners Association to take care of such problems. Mr. Lowman stated the only way the County could get involved is if the roads are not passable by fire trucks or emergency vehicles. Chairman Givens asked who would be responsible and Mr. Lowman said it would be the property owners' responsibility. Chairman Givens stated that as Chairman, he cannot make a motion, but the property is in his District and he has looked at it. It is not buildable without the granting of a variance. The variance request seems reasonable, it doesn't appear it will be a detriment to the adjoining properties and it's certainly in a condition that's shared by the lots in the subdivision. Mr. Carpenter made a motion to approve Variance 407 -12 as submitted. Mr. Lowman seconded the motion and the vote was unanimous to approve. Other In light of the last variance request and the request from last month at Lake St. Claire, Mr. Oates stated that it might be a good idea for the Board of Zoning Appeals to send a letter to the Board of Supervisors asking them to revisit lots smaller than two acres in the RA District created prior to 1989. Mr. Cheran stated that staff will investigate options and decide how best to handle this. Mr. Oates made a motion to prepare a letter and a report to the Board of Supervisors to consider this matter. Mr. Lowman seconded the motion and the vote was unanimous. There being no further business, the meeting adjourned at 4:40 p.m. Respectfully submitted, James Givens. Chairman i Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Page 1605 August 21, 2012