BZA 09-18-12 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 September 13, 2012.
PRESENT: .lay Givens, Chairman, Back Creek District; Kevin Scott, Vice Chairman, Shawnee
District; Gary Oates, Stonewall District; Eric Lowman, Red Bud District; and Robert W. Wells,
Member -At -Large.
ABSENT: Bruce Carpenter, Gainesboro District; and R. K. Shirley, III, 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 delayed for five minutes and at 3:30 p.m. was called to order by Chairman
Givens. Chairman Givens determined there was a quorum.
Chairman Givens led the Pledge of Allegiance.
On a motion made by Mr. Oates and seconded by Mr. Wells, the minutes for the August 21,
2012 meeting were unanimously approved as presented.
Chairman Givens asked if there are any applications for the October meeting. Mr. Cheran
responded there will are no applications pending at this time.
PUBLIC HEARING
Variance Request #08-12 of Jason and Lisa Bly, submitted by Marsh & Legge
Land Surveyors, PLC, for a 20 foot left side variance for an existing dwelling
and deck, resulting in a 30 foot setback. This property is located at 1425
Cedar Grove Road (Route 654), and is identified with Property Identification
Number 31 -A -7G in the Gainesboro Magisterial District.
ACTION — VARINANCE APPROVED
Mr. Johnston presented the staff report. The reason for this request is that when the existing
dwelling was constructed in 2004 by previous owners, it encroached upon the left building restriction
line. However, this was not discovered until after the applicant sold the property. The present owners'
title company is taking exception to the existing encroachment. Mr. Johnston pointed out that the
requested 30 foot setback is needed only for a portion of the property, not for the entire property, and he
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September 18, 2012
suggested that the eastern south corner of the house is where the variance is actually required. This
property is located within the RA (Rural Areas) Zoning District and is part of the rural preservation
subdivision known as Hicks Meadows. The approved plat annotates the setback as 60 feet from the
front, 15 feet on the right, 100 feet from the rear, and 50 feet on the left side. Typically, setbacks for a
rural preservation lot would be 60 feet from the right-of-way of a state maintained road, 15 feet for the
sides, and 40 feet for the rear. However, the reasoning behind the 50 foot setback on the left side is that
the ordinance states that side and rear setbacks from rural preservation lot lines which adjoin parcels
other than another rural preservation lot shall be determined by adjoining parcel size. In this case, the
adjoining lot identified as tax map 31 -A -7C is not a rural preservation lot, therefore creating a 50 foot
setback on the left side.
Mr. Johnston stated it appears the property was acquired in good faith by the current owner and
with no previous knowledge of the setback violation. This request from the current setback may be
justified. Mr. Johnston noted for the Board that we do not have any record of a building permit for this
property and it is unclear how and why this violation occurred.
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. Mike Artz of Marsh & Legge is representing the applicant. Mr. Artz believes this is a
situation where an honest mistake was made. The five acre lot was originally created about 2002 and
was subdivided under the minor rural subdivision section of the ordinance. The remaining property was
subdivided through the rural preservation lot subdivision section of the ordinance and in that section it
states that along and adjacent to the perimeter of the lots, you have to establish the setback based upon
the adjoining properties. The adjoining five acre lot was considered an adjacent property even though it
was a part of the property at one time and they had to have a 50 foot setback.
Mr. Artz stated that the Blys are asking for relief for the house and deck so that it's not going to
be in conflict with the ordinance.
Chairman Givens asked if this is a requirement of the title company as well, for the sale of the
property, and Mr. Ariz responded that Chairman Givens is correct.
Chairman Givens opened the public hearing portion of the meeting. There was no one present
who wished to speak either in favor of or against the request and the public hearing was closed at 3:39
p.m.
Discussion
Mr. Oates made a motion to approve Variance 408-12. Mr. Scott seconded the motion and the
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September 18, 2012
vote was unanimous to approve.
Other
There being no further business, the meeting adjourned at 3:40 p.m.
Respectfully submitted,
c%—&/� S.
aures Givens, Chairman
Bev Dellinger, Secretary
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September 18, 2012