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BZA 07-16-13 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 July 16, 2013. PRESENT: Jay Givens, Chairman, Back Creek District; Gary Oates, Stonewall District; Eric Lowman, Red Bud District; Bruce Carpenter, Gainesboro District; R. K. Shirley, III, Opequon District. ABSENT: Kevin Scott, Vice Chairman, Shawnee District. STAFF PRESENT: Mark R. Cheran, Zoning Administrator; Dana M. Johnston, Zoning Inspector; and Pam Deeter; Interim Secretary. CALL TO ORDER The meeting was called to order at 3:30 p.m. by Chairman Givens. Chairman Givens stated that Mr. Wells was appointed to the Board of Supervisor's therefore the Board will be one short. Chairman Givens determined there is a quorum present. Chairman Givens led the Pledge of Allegiance. Chairman Givens pointed out that Variance was misspelled twice in the minutes on the second and third page under the header of Action and this needed to be corrected. On a motion made by Mr. Oates and seconded by Mr. Lowman the minutes for May 21, 2013, to be adopted with the exception of the two misspelled words. The minutes passed unanimously. Chairman Givens asked Mr. Cheran if any applications had come in for the August meeting. Mr. Cheran replied that the cut off is Friday, July 19. Chairman Givens stated he would be out of town for the August meeting. Chairman Givens stated at the last meeting the Vice Chairman position was postponed since Mr. Scott was not in attendance. Ms. Dellinger contacted Mr. Scott and he is willing to fulfill the chair but his work does take him away from the meeting sometimes. Chairman Givens opened the floor to nomination for Vice Chairman. Mr. Oates asked the board members if they would be interested in the Vice Chair because he would nominate them. Mr. Carpenter nominated Eric Lowman for Vice Chairman and was seconded by Mr. Oates. The vote was unanimous to elect Mr. Lowman as Vice Chairman. Chairman Givens opened the floor for nominations for Secretary because Ms. Dellinger has retired effective June 30, 2013. Mr. Carpenter nominated Mrs. Deeter and it was seconded by Mr. Oates. The vote was unanimous to elect Mrs. Deeter as Secretary. Frederick County Board of Zoning Appeals Page 1613 July 16, 2013 PUBLIC HEARING Appeal Application #03-13 of Mary Albaugh Good, who is appealing the decision of the Zoning Administrator as to Chapter 165 Zoning, Part 702 FP Floodplain Districts, under Section 165-702.10(A)(1) Permit and Application Requirement, of the Frederick County Zoning Ordinance. The subject property is located at 120 Brush Creek Road, and is identified with Property Identification Number 13 -A -25A in the Gainesboro Magisterial District. Chairman Givens asked the petitioner Mary Albaugh Good to come to the podium and state her name and address. Ms. Mary Albaugh Good was sworn in at this time. Mary Good stated that FEMA has changed the Floodplain District. Ms. Good said when we purchased the property on March 1, 2005, that the property was not in the floodplain. FEMA changed the Floodplain District in 2010 because Brush Creek and Little Brush Creek come together. Ms. Good says that the two creeks have not flooded for over 150 years or more. Several buildings on the property have been there for over 200 years and are farm exempt which doesn't require a permit. The newly constructed building has only three sides and no electricity. This building was constructed by her sons and they left clearance at the bottom so if there was a flood, water could run under the building. The building is used for storage of farm equipment and hay. John Trenary was called after the building was almost complete. Mr. Trenary and Mr. Cheran visited the building and it was then determined that the structure would need to be moved. Mr. Trenary said FEMA determines the floodplain. A violation was filed against Mary Good for a structure in the floodplain. Mr. Johnston sent out a notice of violation to Ms. Good. Ms. Good has hired a land surveyor, Shannon Stotler. Mr. Stotler is licensed in the following states: wV, VA, MD, and PA. Mr. Stotler also told her FEMA changes their maps all the time due to the storms that move through the area. There is a way to override the Floodplain District. This form is called the FEMA Calculization form, and Ms. Good is in the process of obtaining one. This form may provide determination if the structure meets the FEMA guidelines. Ms. Good contacted Mr. Johnston and wanted to postpone this meeting. The engineer and the surveyor were both on vacation and since their return they have submitted the paperwork to FEMA. They are waiting for FEMA to get the paperwork back to them. Ms. Good said their farm building would not restrict any water if there was a flood. No water would dam up around the building because the building is open at the bottom. Chairman Givens asked if there was anyone to speak on her behalf. Ms. Good said no. Ms. Good did say Mr. Hess visited the structure that afternoon. Frederick County Board of Zoning Appeals Page 1614 July 16, 2013 Chairman Givens asked if there were any questions Ms. Good realizes that she should have contacted Mr. Trenary's office first before building the shed. Ms. Good's son has put considerable amount of money and time into the structure. Making hay is part of their livelihood as farmers. The roof that was put on the structure was to keep the farm equipment out of the weather. No electricity will be run to this structure. The barn on the corner has been there for more than 150 years and no flood has occurred. Ms. Good's family has put lots of money into the building and taking it down and rebuilding the structure would require money they don't have. If they have to take the building down and move it up the hill it will not be safe for the farm equipment. Mr. Oates said that FEMA is a federal agency and we can't regulate them. Mr. Oates agrees with Ms. Good that there should be a farm exemption. The County adopted the state code which the County was forced to adopt. The code doesn't have a farm exemption so Ms. Good is appealing the decision of the Zoning Administrator, Mr. Cheran, that the building is in a floodplain. Mr. Oates asked Ms. Good if she suggested that the County table the item because she is waiting for the paperwork to come back from FEMA. Ms. Good is waiting for the FEMA's calculization form stating she has met FEMA requirements which included safety and that water won't be damming at the structure. Mr. Oates thinks she is waiting on a LOMAR. Ms. Good wanted to know if the County could override the FEMA decision. She stated that FEMA is Federal Government. When she receives the calculization form back from FEMA; then submits the form to the County the problem should be resolved. Mr. Oates asked Mr. Cheran if Ms. Good sends the form back to the County, would this take care of the violation? Mr. Cheran said yes this would resolve the problem. Ms. Good has put out money for the building as well as $300.00 for the appeal and she will only get $50.00 for the return of the sign. Ms. Good is looking for a solution and she takes responsibility for not calling Mr. Trenary, the building official. Ms. Good is not sure who filed the complaint and why. Mr. Stotler was not aware that FEMA expanded the floodplain. In order to change the floodplain on an individual property, the landowner can get a calculization form and submit the form to FEMA for their review. Ms. Good said that FEMA is working on this form and that it should be received back soon which is why she was asking for postponement until next month. Mr. Oates said we could table the item for 30 or 60 days. Ms. Good would like 60 days just in case there is a delay. Mr. Carpenter hypothetically asked Mr. Cheran if the new structure was attached to an old building would the same rule apply and would this be exempt? Mr. Cheran answered with yes the same rules would apply. Mr. Carpenter asked if there is a no existing structure clause? Mr. Cheran said no. Chairman Givens would like to hear the County's position. Then complete the hearing and have a discussion. Chairman Givens asked Rod Williams, County Attorney to come forward. Mr. Williams said that Ms. Good is not disputing the facts but he will state the County information so it can be put on record for this case. Then the Board could ask questions or continue the matter. Mr. Williams points out the structure cannot be built in the floodplain according to the Frederick County Zoning Ordinance. The structure has to be flood proof, this does not mean just the obstruction of the flow of water. The structure has to be proven to be safe in the time of flooding. Frederick County Board of Zoning Appeals Page 1615 July 16, 2013 Mr. Cheran, the Zoning Administrator, is the person to interpret the Zoning Ordinance. Mr. Williams is asking Mr. Cheran to answer a few questions. Mr. Williams asked Chairman Givens to swear Mr. Cheran in before he starts proceeding with questions. Mr. Cheran, the Zoning Administrator, was sworn in by Mr. Givens, the Chairman. Mr. Williams asked Mr. Cheran to state his name and his title. Mr. Williams asked Mr. Cheran if he was familiar with the property. Mr. Cheran stated yes. Is the property located at 120 Brush Creek Road? Mr. Cheran's response was yes. Mr. Williams asked if this property is located in Frederick County. Mr. Cheran's response was yes. Mr. Williams asked if the tax map number is 13 -A -25A, Mr. Cheran said yes sir. Mr. Williams wanted to know how Mr. Cheran became familiar with the property? Mr. Cheran said that Ms. Good wanted to get an ag exempt building so she contacted the building official and he looked it up and building official said it was ok for ag exempt. The Building Official realized it was in the floodplain and wanted to know if the Zoning Department would allow an ag exempt building in the floodplain. The Building official referred this matter to Mr. Cheran and they looked it up together on the tax map. It was determined that the structure was in the floodplain. The Building Official and Mr. Cheran met with Ms Good on her property and addressed the issue of the floodplain. Mr. Cheran said that is how he became aware of the problem. At the time of this meeting the structure was being constructed in the floodplain by our maps. Mr. Williams put an aerial location map on the screen and asked Mr. Cheran if this is the violation property. Mr. Cheran indicated that this is the correct property. Mr. Cheran indicated on the map as to where Ms. Good's property is outlined in black. Mr. Cheran indicated the floodplain is in blue for Frederick County. Mr. Williams asked Mr. Cheran to be specific as to where the structure is. The structure is located between two roads Brush Creek Road and Howard Chapel Road. Mr. Cheran indicated on the map as to where the structure was built. Mr. Williams said let the record show that Mr. Cheran circled an area of Brush Creek Road and Howard Chapel Road and intersecting with Siler Road. Mr. Williams asked if the map that is on the screen is a true and correct document used by the Planning Department. Mr. Cheran answered yes. Mr. Williams asked if a notice of violation was sent to Ms. Good. Mr. Cheran answered yes; a copy of the violation is in the file. Mr. Williams wanted to know if the letter dated May 17, 2013, that is with the agenda package is this the same letter of violation. Mr. Cheran responded yes. Is this a true and correct copy of the letter of violation? Mr. Cheran responded yes sir. How would Ms. Good correct this violation? Mr. Cheran said she would need to get a LOMAR through FEMA or a Floodplain Elevation showing the property is not in floodplain area. The County keeps all the LOMARS submitted to us from FEMA on file in our office and she would be ok to keep the structure. That can be done for any property in the County that is in the floodplain. Mr. Cheran also said that if Ms. Good would ever sell the property the floodplain should be disclosed to the buyer. The buyer could come to the Zoning Department and we would show them the FEMA information. Mr. Williams asked who would prepare a Floodplain Elevation? Mr. Cheran responded that a certified engineer or surveyor in the state of Virginia. Mr. Cheran testified about the letter of violation and Mr. Williams addressed Chairman Givens to make the letter of violation part of the record since it is in the agenda package. Chairman Givens gave his approval. Frederick County Board of Zoning Appeals Page 1616 July 16, 2013 Mr. Williams introduced another witness Mr. Patrick Fly with the GIS Department of Frederick County. Patrick Fly was sworn in by Chairman Givens. Mr. Fly was asked by Mr. Williams if he was familiar with the map on the screen and to explain. Mr. Fly said the blue outline is the floodplain and the black outline is Ms. Good's property. Mr. Williams presented the question to Mr. Fly if his department maintains the data and software to create these maps? Mr. Fly's response was yes. How would you go about creating a map with the floodplain on it? Mr. Fly said FEMA provides the County with floodplain maps and the data is dropped into our County mapping software and a layer is created for floodplain. Mr. Williams asked Mr. Fly if this is a true and correct copy of where a floodplain is shown that is created by the GIS Dept of Frederick County? Yes was Mr. Fly's response based on the data provided by FEMA. Mr. Williams asked Mr. Fly if it is the ordinary course for the GIS Dept. to create these documents? Again Mr. Fly's replied yes. Mr. Williams stated that Mr. Cheran and Mr. Fly have verified the map and relevant information would like the admission of that document. Mr. Williams will try to get a copy of the map to the Board that outlines the floodplain area and Ms. Good's property. Chairman Givens so ordered the admission of the document. Chairman Givens wanted to know if the Board could ask Mr. Fly questions. Chairman Givens wanted to know if the floodplain changes on a regular basis? Mr. Fly said the last changes were in 2009 or 2010 and there were major changes to the County. Chairman Givens asked will they do this again or is it random? Based on an engineered survey a citizen can petition FEMA to make changes per Mr. Fly. As far as FEMA changes they are not made too often. Mr. Fly thinks the last major update was in the late 70's but not sure. Mr. Carpenter said if there hasn't been a flood for 100 to 150 years what criteria does FEMA have to change this area to a floodplain? Mr. Fly has no knowledge of how FEMA determines their criteria. Chairman Givens had a question for Mr. Cheran. It is my understanding that your office has just started addressing the violations that are in the floodplain? Mr. Cheran's response is yes. Mr. Cheran states that the County was going by the 1978 maps. The County didn't update maps since 1978. Then the change came out from FEMA in 2009 or 2010. Mr. Cheran, Mr. Fly, and Mr. Trenary met with the Department of Environment Resources and FEMA because the three of them would need to address any structure in the floodplain. Chairman Givens expressed his understanding to Mr. Cheran that the main reason of the violation is the obstruction of the waterway. This particular structure is a barn with no electricity and does not pose a safety concern. If the County receives a FEMA Calculization form, would this be resolved? Mr. Cheran said yes. Chairman Givens said he sees the problem with the violation is the 30 days to resolve the issue. The 30 days starts from the date of the violation letter and not from the meeting date. Maybe Ms. Good needs another 30 days from the meeting. The County can't do anything until we receive notification from FEMA. Is this correct? That is correct per Mr. Cheran Frederick County Board of Zoning Appeals Page 1617 July 16, 2013 Ms. Good protected her rights by appealing within the 30 day period to the BZA and if she had not appealed to the BZA the County would be going to the General District Court for resolution. Mr. Williams clarifies if the BZA affirms the Zoning Administrator's decision today; the clock will start today and will lead to some other decisions that will need to be made. The County will need to seek enforcement in General District Court. Mr. Cheran is not obligated to do so ASAP but there is a statute of limitation. Mr. Williams is not sure of the actual date of violation so he is not sure when the time expires. Mr. Williams says should the BZA rule against Ms. Good, and if Ms. Good wants to seek further resolution in the court system she has only 30 days to appeal to the Circuit Court. The County doesn't want to put Ms. Good in a situation where she has to seek further resolution. If Ms. Good can get the FEMA calculization form, which she has described previously that would be the reasonable resolution to this violation. Mr. Williams doesn't think the members of the Board would want to come back in 30 or 60 days and hear that the issue is resolved or not resolved. Then at that time the Board would have to make a decision. Mr. Williams suggested that if we delay the decision it would give FEMA some time to process the forms. Again, Mr. Williams can't speak for Ms. Good but this would buy her time. Mr. Williams answered Chairman Givens question. Mr. Carpenter posed a question, besides the Board possibly giving Ms. Good time, does this Board have no appeal rights over FEMA. Then since the County is governed by Fed's the County has no right? Mr. Williams said that is correct the BZA powers are limited. The Board is to make sure the Zoning Administrator's ruling and his interpretation of a violation is a correct decision. The BZA Board has no power to over -rule County, State Law and Federal Law. Mr. Williams needed Mr. Cheran to clarify LOMAR that way it will complete the record. Mr. Williams assumes LOMAR is an acronym. Mr. Cheran states that the LOMAR is looking to change the watercourse in a floodplain. The public hearing was opened by Chairman Givens for citizen comments. No one came forward to speak and Chairman Givens closed the public comments portion of the hearing. Ms. Good had a question. She wasn't sure if she had 30 or 60 days. Chairman Givens said that is for the Board to discuss. Ms. Good preferred the longer period of 60 days over 30 days. Ms. Good's other question is if she gets the paperwork soon who should get the paperwork Mr. Johnston or Mr. Cheran. Chairman Givens said to bring it to the Zoning Department and Mr. Cheran will notify the Board. Mr. Oates stated since Ms. Good appealed the decision she would have to voluntarily withdraw her complaint. Mr. Cheran concurred with that. Then Mr. Cheran would advise the Board. DISCUSSION Chairman Givens asked would we postpone or table either one. The question is tabling action and postponing action are they one of the same. Mr. Oates responded they are one of the same. The Board agreed with Mr. Oates. Frederick County Board of Zoning Appeals Page 1618 July 16, 2013 Mr. Oates responded if a motion is made to table there will be no discussion of the matter. Chairman Givens states if we have a motion, I think we need to put a time frame on the issue. Mr. Oates is suggesting 60 days. Are there any more comments responded Chairman Givens before we make a motion to table the matter. Mr. Shirley asked what if FEMA doesn't approve that structure requirements and is there anything else the Board can do? Mr. Lowman responded that the Board would meet again and make a decision on whether the Mr. Cheran's decision is valid. If the Board tables the matter or not, Mr. Willams, would like to have the opportunity to come back and make a closing statement on behalf of the County. Chairman Givens stated if FEMA denies her application, we could just say that the Zoning Administrator was either right or wrong with his interpretation. The Zoning Administrator cannot change what the County code states. Mr. Carpenter made the motion to postpone for 60 days so Ms. Good would have time to receive the paperwork back from FEMA before a decision will be made. There was a unanimous vote to table or postpone the application for 60 days. OTHER There being no further business Mr. Oates moved to adjourn and Mr. Carpenter seconded motion. The meeting was adjourned at 4:30 p.m. Respectfully submitted, 4amesivens, Chairman 0i tc, Pamala Deeter, Secretary Frederick County Board of Zoning Appeals Page 1619 July 16, 2013