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BZA 12-17-13 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 December 17, 2013. PRESENT: Jay Givens, Chairman, Back Creek District; Eric Lowman, Vice -Chairman, Red Bud District; Gary Oates, Stonewall District; Reginald Shirley, III, Opequon District; Kevin Scott, Shawnee District; Bruce Carpenter, Gainesboro District; Ronald Madagan, Member -at -Large. ABSENT: STAFF PRESENT: Mark Cheran, Zoning Administrator, David Burke, Zoning Inspector, and Pamala Deeter, BZA Secretary CALL TO ORDER The meeting was called to order by Chairman Givens at 3:30 p.m. and he determined there was a quorum. Chairman Givens led the Pledge of Allegiance. Chairman Givens asked if there are any applications for the January meeting. Mr. Cheran responded yes one at this time. The cut off -date is Friday, December 20, 2013. On a motion made by Mr. Oates and seconded by Mr. Scott, the minutes for October 15, 2013 meeting was unanimously approved. PUBLIC HEARING The Variance Request #06-13 of Michael M. Milam, submitted by Marsh & Legge Land Surveyors, PLC, for a 48.7.foot right side yard variance, resulting in a 1.3 foot right side setback for a single family dwelling. This property is located on the South side of Lake Serene Drive, 0.2 miles east of the intersection with Saint Clair Road (Route 677), and is identified with Property Identification Number 31B-1-14 in the Gainesboro Magisterial District. Frederick County Board of Zoning Appeals Page 1626 December 17. 2013 Mr. Lowman has abstained from discussion and voting. Mr. Cheran presented the staff report. The applicant is requesting a 48.7 foot right side variance resulting in a 1.3 foot right side setback for a single family dwelling. The reason for the variance is Frederick.County adopted zoning in 1967. The Frederick County historical zoning map shows this property was zoned A-1 (Agricultural Limited) in 1967. The property setback lines at the adoption of the zoning ordinance were 35 feet for the fronts and 15 feet for the side yards. Frederick County amended its Ordinance in 1989 to change the A-1 (Agricultural Limited) District to the current RA (Rural Areas) District, with setbacks for this property being 60 feet to the front, 50 feet to the rear, and 50 feet to both sides. Mr. Cheran states the applicant has applied for a variance to construct an addition to an existing dwelling. This addition will be a one (1) story breezeway that will connect to an existing garage. Therefore, the property cannot meet the current setback associated with the RA (Rural Areas) District. The applicant is requesting a 48.7 foot on the right side property line from the current 50 foot setback side requirement of the RA (Rural Areas) District. This variance, if granted, would result in a 1.3 foot right side yard variance. To conclude, Mr. Cheran stated that the Code of Virginia 15.2-2309(2) and Section 165- 1001.2(C) of the zoning ordinance state 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. Cheran stated that it appears that this variance may not be justified. Mr. Cheran stated that the staff looked at 1986 aerial photos and it showed a structure and a shed on the property but staff was unable to locate a building permit. Mr. Oates asked the question, isn't the breezeway connection to the garage considered part of the house? Mr. Cheran replied as the house stands now the breezeway and garage are part of the house. Mr. Scott clarified with Mr. Cheran that in 1986 there was a structure on the aerial photos. The representative for the applicant, Mike Artz, came forward. The subdivision was created in 1969. The dwelling was constructed in 1977. The garage was built between 1988 and 1990. Mr. Artz states that the addition will replace the breezeway. The addition is a one Frederick County Board of Zoning Appeals Page 1627 December 17, 2013 story with a basement which will connect to the existing garage. The new addition will not be any closer to the property line than it already is. Mr. Artz is looking at the breezeway and garage as being part of the house. By replacing the breezeway with the new addition that already connects the garage to the house this would make it part of the main structure. This is why my client is here today to get official approval of the addition. In the survey that I submitted, the existing garage is 1.3 feet off the property line, the new addition would come off the rear of the garage which is 3 feet from the property line and the other rear corner is 5 feet from the property line. Again, the addition will not be any closer to the property line than it is right now. Mr. Artz states he thinks this is a hardship. Some of the existing homes are already closer to the property line than this dwelling. The addition should not be placed in the front roadside because the applicant would encounter other problems such as structural issues and blasting in hard rock for foundation. The addition couldn't be placed in the back due to drainfield and also would impact the neighbors. Mr. Artz presented two letters from the adjacent property owners supporting Mr. Milam's addition. Chairman Givens asked Mr. Artz when was the breezeway built? Mr. Artz didn't know. Chairman Givens asked, do you know if the breezeway was built with the garage? Mr. Artz didn't know. Mr. Milam was asked if he wanted to address the Board. Mr. Milam said there was no need to address the Board as Mr. Artz was representing him. Chairman Givens opened the floor to the Public Hearing for anyone to come forward to speak for or against the variance. No one came forward and the Public Hearing was closed by Chairman Givens. Discussion Mr. Oates stated there are two ways to look at this. If the breezeway connected to the garage, which is already considered part of the house then we don't need a variance. Second if the breezeway is not part of the house it's in violation and should be sited and be removed? Since the breezeway is connected, the County is not pursuing a violation. Mr. Cheran stated we would treat this as a non -conforming use. The paperwork that was presented makes this addition looks bigger than it is. There was no complaint on the breezeway; the issue was with the building permit. Frederick County Board of Zoning Appeals Page 1628 December 17, 2013 Chairman Givens states the County had zoning in 1977 when the house was built and the setbacks were met. When the garage was built between 1988 to 1990, the old or new setbacks could have been used. Chairman Givens assuming that the setback for accessory building were still 15 foot off property line at that time was the breezeway constructed or not. It appears that the building was not even built in compliance with the code. Does it make it non -conforming? Chairman Given understands the non -conforming for the house because it was built under old zoning regulation. Is an accessory structure built without a permit considered non -conforming? Mr. Cheran replied that no building permit was issued, and the structure is in existence today and research shows the structure so we would consider it non —conforming use. Does it make it legal? Mr. Cheran replied probably not. Mr. Carpenter asked if Mr. Milam built the garage or the breezeway. The reply was no. Chairman Givens replied that the County is looking at this breezeway as being attached to the main house which now makes it non -conforming which we have a house at 1.3 feet from property line. Is this a case for BZA or not? Is this the way we acted in the past on non- conforming lots and is it written in the rules and regulations that we don't get any closer it is not a problem. Mr. Cheran replied the County treats it as a one for one replacement as long as you are not getting any closer to property lines. Now if you expand or make bigger then you would be violating the setback. Chairman Givens asked that once you expand outside the existing foot print then it becomes a BZA case? Mr. Cheran replied yes. Mr. Oates asked about the other side yard setback. Mr. Cheran replied that the applicant has not constructed anything on the other sides. The applicant is only asking for right side yard variance. Mr. Carpenter made the motion that Variance 06-13 be approved with a 48.7 foot right side yard variance, resulting in a 1.3 foot right side setback. Mr. Scott seconded the motion and the vote was unanimous for approval. Mr. Lowman abstained from voting. Other Chairman Givens states we have the 2014 calendar and the annual disclosure of real estate form, please complete before January 15, 2014. Mr. Cheran has placed a continuing education form before us; any BZA member who wishes to attend should contact Mr. Cheran by the next meeting. Frederick County Board of Zoning Appeals Page 1629 December 17, 2013 Mr. Oates will not be at the January meeting. Mr. Scott stated that his term is up and he will be moving to another committee. There being no further business, the meeting adjourned at 4:10 p.m. Respectfully submitted, V James Givens, Chairman Pamala Deeter Secretary Frederick County Board of Zoning Appeals Page 1630 December 17, 2013