Loading...
BZA 07-17-12 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 July 17, 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, Ill, 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. and he determined there is a quorum. Chairman Givens led the Pledge of Allegiance. On a motion made by Mr. Oates and seconded by Mr. Carpenter, the minutes for the April 17, 2012 meeting were unanimously approved as presented. Chairman Givens asked if there are any applications for the August meeting. Mr. Cheran responded there will be an August meeting; we have another variance. PUBLIC HEARING Variance Request #03 -12 of Steven and Katrina Hawes, for a 20 foot right side variance and a 20 foot left side variance, resulting in a 30 foot setback on both sides, for a single family dwelling. This property is located in Lake St. Clair Subdivision, Lake St. Claire Drive, Lot 16, and is identified with Property Identification Number 31A -1 -16 in the Gainesboro Magisterial District. ACTION — VARINANCE APPROVED Chairman Givens noted that subsequent to this request, the Board has received two additional plats. One plat showed the dwelling with a 40 foot setback rather than a 30 foot setback, and the plat received today changed the setback to 33.6 feet on both sides. Chairman Givens wants to make sure these changes are explained, in the staff report and by the petitioner. Frederick County Board of Zoning Appeals Page 1591 July 17, 2012 Mr. Johnston stated it is his understanding that there was a field error with creating the property lines. The plat showing setbacks of 33.6 feet on each side is the correct plat. Mr. Johnston presented the staff report. The reason for this request is that the property has a width of 130 feet, a depth of 300 feet and is less than one acre in size. The current setback requirements for the RA (Rural Areas) Zoning District eliminates the building area for this property. The property adjoins a lake and Mr. Johnston wants to allay any concerns about the property and the flood plain. According to the FEMA maps, this property is shown to be in the flood plain; however, based upon the engineering assessment report for Lake St. Clair Dam dated October 12, 2009, the 100 year Base Flood Elevation is 734.8. The proposed basement will be constructed at an elevation of 765.0, making the dwelling 30.2 feet above flood elevation. Mr. Johnston continued with the setback history. In the late 1960s, the Lake St. Claire Covenants created building setbacks at 25 feet on all sides. In 1967, Frederick County adopted zoning ordinances, establishing setbacks for A -2 (Agricultural General) Zoning District at 35 feet to the front, and 15 feet to the sides and rear. In 1989, A -2 zoning was changed to RA Rural Areas) zoning and in 2007 amended setbacks for the RA Zoning District were changed to 60 feet to the front and 50 feet to the sides and rear. The applicant is requesting a 16.4 foot variance for the left and right side, and if the variance is granted, this would result in a 33.6 fool setback on both sides to accommodate a proposed dwelling. 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. The authorization of such variance will not be a substantial detriment to adjacent property. 4. The character of the district will not be changed by the variance. Mr. Scott Marsh of Marsh & Legge Land Surveyors is representing the applicants. Mr. Marsh verified that the variance the applicants are seeking is 16.4 feet on both sides. The reasons for the different variations of the proposed dwelling and the variance distance were an effort to get the best position of the dwelling and, because this lot had a boundary line adjustment done in 1967, the lot was made more narrow. With that revision, they concluded the best position of the house. Mr. Marsh stated that the applicants, Mr. and Mrs. Hawes, have owned this property for ten years and it's their intent to build their retirement home on this property. They have retained John Massey, an architect, who has done the layout for this dwelling. The footprint of the house is about 50 feet by 42 feet, roughly 2,300 square feet on one floor with an attached garage. The positioning of the house is based on topography and the lake feature. Mr. Marsh stated that Lake St. Clair is a premier subdivision with a private road in the County. This home will keep with the residential setting, having a lake as a primary feature. The plans that have been put together by Mr. Massey have been reviewed and approved by the Frederick County Board of Zoning Appeals Page 1592 July 17, 2012 Homeowners Association. The HOA doesn't approve the location and that's why they're here today. What they're seeking is relief from the 50 foot side yard setbacks. Mr. Marsh presented members with pictures of the proposed dwelling, positioned so because of topography and the lake view. The positioning of the proposed dwelling is similar to adjacent lots. The proposed attached garage is on an angle, not parallel and perpendicular to the house, due to topography. Mr. Marsh stated the proposed dwelling is in keeping with other dwellings in the community and that they tried to keep the positioning fair; no more impact on one side than the other side. Chairman Givens opened the public hearing portion of the meeting to anyone who would like to speak either for or against this variance request. Mr. Tom Glass spoke in opposition of the variance request. He lives next to the lot in question. Mr. Glass emailed all BZA members stating his opposition, which included a hand - drawn proposal for the dwelling position. Mr. Glass stated that he hated to be a bad neighbor but he has lived there for 32 years, and he believes there is no reason why the house can't be parallel to the property lines. Mr. Glass realizes that his lot is larger than the Hawes' lot, but he doesn't see a hardship because they can build a 50 foot house on their lot with less right -of -way than 33.6 feet. In his email, Mr. Glass stated that he's not opposed to a 40 foot setback; he doesn't want to keep someone from building their house. They have enough room at 50 feet or 75 feet back from the lake to build their house, but they'd have to put their garage in line with the house. Mr. John Schroth spoke in opposition of the variance request; he is a part -time resident. Mr. Schroth stated that the Hawes' house is very well designed and it will be a beautiful addition to Lake St. Clair. However, he is concerned about the side setbacks and he wishes this Board would take his concerns to the Board of Supervisors. There have, in fact, been variances granted by the Board of Zoning Appeals on existing houses at Lake St. Clair which were built in the 1960's and 1970's under the original 25 foot setbacks. They did have hardships because they couldn't add to their house. Mr. Schroth thinks that's a huge difference between a brand new house and an existing house. The Hawes' plan is good and the topography is very difficult, but he wishes the BZA would make a special effort to get back to the Board of Supervisors about this particular subdivision and this problem. As no one else wished to speak, Chairman Givens closed the public hearing at 3:50 p.m. Discussion Mr. Oates stated that he understands Mr. Glass's comment that if the garage was lined up with the house, the variances wouldn't need to be nearly as large. Chairman Givens commented that the one thing he's seeing on the plat that is a little contrary to what they've done in the past, is the garage. Most times the BZA does not consider a garage in itself a hardship. Chairman Givens does understand what Mr. Glass and Mr. Schroth are saying because when this subdivision was approved, there were no setback requirements other than those outlined in the dedications, But we have to deal with the ordinances the County has in place now. We have to look at this in the sense of what kind of hardship is created and it Frederick County Board of Zoning Appeals Page 1593 July 17, 2012 seems to Chairman Givens that with a slight adjustment of the way the building is laid out, 40 foot setbacks on both sides could certainly be achieved. Chairman Givens continued that he does feel this is a hardship and this is a situation that's shared by other properties in the RA zoning district. Mr. Marsh asked if this could be tabled so that they could look at some other options. This would require a significant change in their house plan. Chairman Givens stated he doesn't have a problem with tabling the request. Mr. Marsh went on to state there is a precedent set of allowing 25 foot setbacks and 40 feet is a wide setback. Mr. Wells informed Mr. Marsh that the Board of Zoning Appeals individually decides on requests; there is no precedence, each request stands on its own merit. Mr. Wells asked if the house is being positioned for view or aesthetics, or is it being positioned to meet as close as they can to the property requirements of the setbacks. Mr. Wells feels that from what Mr. Marsh has said, the house is being positioned for the view. If that's the case, repositioning the house so that it would come closer to meeting the setback requirements would certainly be something to take a look at. Mr. Marsh pointed out views because of the houses that are not situated parallel or perpendicular and topography and view are the best ways to position the house. Clearly the direction the Board is seeking is something different than what has been presented, so they would ask for it to be tabled until the August meeting. Mr. Oates stated he would not have a problem with this being tabled. Mr. Oates suggested that they contact Mr. Glass and let him know what they're coming up with. Mr. Marsh agreed. Mr. Lowman wanted to know based on the plan, if the house was oriented with the lot, what is the buildable space that's allowable with the current 50 foot setbacks. It seems to him they couldn't even fit a 40 foot house on the lot and if you take up a 24 foot garage, that gives them 16 feet living space if it's a split foyer on the basement. Mr. Lowman stated his opinion is that the hardship is clearly there because the current building envelope is not there. If we're searching to try to get the neighbors happy with the process and get them on board with a decision of ours as far as what we consider a hardship, tabling is fine, but Mr. Lowman clearly sees a hardship in this request. Whether it's going to be 40 feet or 33.6 feet, or even if they were asking for 15 feet, we'd have some issues. Since the original setback was 25 feet, he doesn't see an issue. Mr. Oates said that down by the lake, it looks like it's probably about 32 feet wide and toward the road, it's close to 50 foot setbacks. Frederick County Board of Zoning Appeals Page 1594 July 17, 2012 Mr. Steve Hawes, the owner, stated that he and his wife have been planning this house for ten years. This is their dream house but it's slowly becoming a nightmare. They want to put a beautiful house in Lake St. Clair. They're restricted because of the size of the lot. This is not going to be a summer home or cabin, they're trying to build their retirement home. If you're going to move to a lake, what's the sole purpose of living on the lake? The neighbors have turned their houses for the same reason — the view of the lake. If Mr. Hawes turns his house the other way, he's looking right over top of Mr. Schroth. As to the garage issue, the house is designed in that manner because of the connecting space between the house — turning the garage will destroy the whole flow of the house. He can remove the garage and put it 15 feet next to the line, but that destroys the purpose of the design. Mr. Hawes doesn't feel that he's encroaching upon Mr. Glass's land. Mr. Hawes concluded that they're not trying to be unreasonable, they're just trying to build a house. Mr. Wells asked Mr. Lowman to make his comments again, he didn't hear all of what Mr. Lowman said. Mr. Lowman stated that whether it's 40 feet or 33.6 feet shouldn't be an issue. The BZA is going to grant a variance or deny a variance, one way or the other. Mr. Lowman feels that at 33.6 feet, he sees where there's a hardship, based on being in the RA and based on the current zoning ordinance. Mr. Wells asked when the 25 foot setback changed. Chairman Givens stated that the 25 feet was never a setback; that was set forth in the deed of dedication. As Chairman Givens understands it, when the subdivision was approved; there were no setback requirements in the County. That was a restriction in the deed of dedication. The first setback requirements were 15 feet on the sides, therefore, the County setback requirements were less restrictive than the deed of dedication. Again, it didn't become a problem from the County's perspective until they changed the ordinance to the 50 foot side setback. Mr. Schroth pointed out very well that maybe this is something the County needs to address, but it's something the BZA has to determine now. Chairman Givens agrees with Mr. Lowman there is a hardship in the sense that you're not going to build a footprint within the 50 foot side yard; something's got to be done. Whether we agree with it or not, the setbacks are what the County has established. The BZA's job is to grant a variance to relieve the hardship and the question, with the testimony we've heard today, is the 33.6 foot setback a reasonable one, or can it be less. Chairman Givens feels some good points have been raised about the garage. This isn't normally what the BZA would consider a hardship, but the applicants can make it a detached garage that's even closer to the property line. Chairman Givens stated the BZA has to make a decision whether it's best to seek another option or are we ready to act upon what is before us. Mr. Lowman pointed out that based on the way the garage is oriented, you can tell that the owners and the architect have taken into consideration trying to place the garage in an area where it's not going to have more impact on the setback. Mr. Oates stated he's down to where a 32 foot wide building envelope, roughly, is too restrictive for someone to build a house. The question is, could they get a house in there without this. Frederick County Board of Zoning Appeals Page 1595 July 17, 2012 Chairman Givens stated to go down to a footprint that would fit inside the existing 50 feet does create a hardship in the development for the property. For a structure to be built, there's going to have to be some form of a variance granted. It's a question of how much. Mr. Carpenter asked if the applicant would like for the BZA to proceed with their application or are they going to request that it be tabled. Mr. Oates feels since it seems to be the consensus, and he agrees, that with the size and style of houses in Lake St. Clair, 32 feet would not be enough and that would justify the hardship, and if the garage was detached, it would be half again as close to the neighbor. Mr. Oates made a motion to approve the variance request of 16.4 feet on both sides resulting in a side yard variance of 33.6 feet on both sides. Mr. Carpenter seconded the motion and the vote was unanimous. Variance Request #06 -12 of 300N, LLC, submitted by Marsh & Legge Land Surveyors, P.L.C., for a 20 foot right side variance and a 20 foot left side variance, resulting in a 30 foot left side setback on both sides, for a single family house. This property is located on the right side of cul -de -sac at the end of Woodridge Lane Route 747), and is identified with Property Identification Number 30A -2 -25 in the Gainesboro Magisterial District. ACTION — VARINANCE APPROVED Mr. Johnston presented the staff report. The reason for this variance is that with current setbacks, extreme topography and the location of the proposed well and drainfield site, there leaves a very small building area. 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 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, 60 feet to the rear and 50 feet on both sides. The property was created in 1974 as part of an approved subdivision named Braddock Hills Section 11. There are a total of 13 lots that all average 1.74 acres in size. This lot remains the only one in the subdivision that is currently vacant. Dwellings on adjoining lots, and most other dwellings within the subdivision, were constructed prior to current regulations and would be considered non - conforming with regards to side yard and front yard setbacks. The applicants are requesting a 20 foot variance on the left and right side resulting in a 30 foot setback on both sides in order to construct a single family dwelling. The Code of Vireinia 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: Frederick County Board of Zoning Appeals Page 1596 July 17, 2012 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. The authorization of such variance will not be a substantial detriment to adjacent property. 4. The character of the district will not be changed by the variance. Mr. Mike Artz of Marsh & Legge Land Surveyors is representing the applicants. Mr. Artz stated this lot is very steep. The 30% slopes make it difficult to find a drainfield site, and a well and house site. The drainfield found on the lot conforms to the current regulations, which is a full size drainfield for a two bedroom pere on the house, with 100% reserve. They cannot put the drainfield any closer to the street because of the neighbors' wells on the adjoining lots. The drainfield site is the critical item; it situates where a house can be placed on the lot. There has to be a minimum separation of 20 feet from the house to the drainfield and the current chosen location is right at 20 feet. Chairman Givens opened the public hearing portion of the meeting to anyone who would like to speak either for or against this variance request. Mr. Justin Thomas spoke in opposition to the variance request. He and his wife own the neighboring lot at 196 Woodridge. Mr. Thomas stated that, after what has been presented, he sees how the process works as far as the hardship. However, he doesn't believe the well is to scale where the proposed site is. He has measured from the marking to his well and he's at 61 feet. The rebar is set right at a telephone pole at the corner of the property. Where they're planning on putting the house is extremely close to his house. Mr. Thomas isn't sure if the proposed drainfield has been approved yet. He is concerned about the financial detriment to the neighboring properties because no house in Braddock Hills Estates is smaller than a three bedroom house. Chairman Givens closed the public hearing at 4:25 pm. Discussion Mr. Jacob O'Neill asked if he could re- iterate what Mr. Thomas said. Chairman Givens granted consent to Mr. O'Neill after conferring with the Board members. Mr. O'Neill stated the building plan shows the house very close to his house and he wonders if that's the actual dimensions of the house. Mr. Charles Moyer also spoke against the variance. He lives on Lot 21. It seems to Mr. Moyer that the lot is completely unbuildable because it is extremely steep. Chairman Givens again closed the public hearing at 4:28 p.m. Chairman Givens responded to Mr. O'Neill. The Board doesn't have the actual plans for the building, but if this variance is approved, Chairman Givens assured Mr. O'Neill that the 30 foot setback would be enforced. Frederick County Board of Zoning Appeals Page 1597 July 17, 2012 Chairman Givens agrees with Mr. Moyer that the lot is a very steep one and there is going to be a lot of difficult construction. As far as the septic approval, if the Health Department approved it, it is there and available. If it's limited to a two bedroom house, that is what will have to be built. There are no conditional septic permits in Frederick County any longer. Chairman Givens continued that building the house close to the road does put it in character with the way the other houses are built. And some of the other houses are close to the sideline, probably within 15 feet because they were probably built before the ordinance was changed. Mr. Wells commented that at some point, the buyer should become aware he's buying a piece of land that restricts the size of his house. Both variance requests today were of that nature and as a member of the BZA, that bothers Mr. Wells. Mr. Oates asked Mr. Ariz if the drainfield is proposed or if it's approved; what's the status. Mr. Artz responded that Bruce Legge, their approved on -site soil evaluator, has identified this drain field site as a two bedroom septic site. It's going to be taken to the Health Department. Chairman Givens said that the question before the Board is, should a variance be granted to allow the construction of this house. If the variance is granted, any other approvals such as building permit issuance and septic system approval, will be approved by separate County regulations. Mr. Lowman made a motion that Variance 406 -12 be approved with a 20 foot variance on both the left and right side, resulting in a 30 foot setback on both sides. Mr. Carpenter seconded the motion and the vote was unanimous for approval. Other Chairman Givens informed the Board that the variance they approved on Frog's Hollow Road was heard in Circuit Court and the Judge upheld the Board of Zoning Appeals decision. There being no further business, the meeting adjourned at 4:35 p.m. Respectfully submitted, James Givens, Chairman Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Page 1598 July 17, 2012