BZA 05-21-13 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
May 21, 2013
3:25 p.m.
CALL TO ORDER
1) Determination of a Quorum
2) Minutes of September 18, 2012
3) Election of Officers and Adoption of Bylaws
PUBLIC HEARING
4) Variance Request #01-13 of Douglas W. Milburn for a 30 foot left side variance,
resulting in a 20 foot left side setback, and a 31 foot right side variance, resulting in a 19
foot right side setback, for a single family dwelling. This property is located in Whitfield
Subdivision on Double Church Road (Route 641) Lot 6, Block B, and is identified with
Property Identification Number 86A-2-B-6 in the Opequon Magisterial District.
5) Variance Request #02-13 of Kelly B. Ritter, submitted by Marsh & Legge Land
Surveyors, P.L.C., for a 75 foot right side yard variance, resulting in a 25 foot right side
yard setback, and a 50 foot rear yard variance, resulting in a 50 foot rear yard setback, for
a single family dwelling. This property is located on the east side of Welltown Road
(Route 611), approximately 0.9 miles north of the intersection with Cedar Hill Road (Route
671), and is identified with Property Identification Number 33-A-12C in the Stonewall
Magisterial District.
6) Other
Frederick County Board of Zoning Appeals Page 1606 September 18, 2012
MEETING 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 18, 2012.
PRESENT
: Jay 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
suggested that the eastern south corner of the house is where the variance is actually required. This
Frederick County Board of Zoning Appeals Page 1607 September 18, 2012
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. Artz 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 #08-12. Mr. Scott seconded the motion and the
vote was unanimous to approve.
Frederick County Board of Zoning Appeals Page 1608 September 18, 2012
Other
There being no further business, the meeting adjourned at 3:40 p.m.
Respectfully submitted,
______________________________
James Givens, Chairman
______________________________
Bev Dellinger, Secretary
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FREDERICK COUNTY
BOARD OF ZONING APPEALS
BY-LAWS
(Proposed for Consideration May 21, 2013)
ARTICLE I - AUTHORIZATION
1-1 The Frederick County Board of Zoning Appeals is established by and in conformance with
Chapter 165 of the Code of Frederick County, and in accord with the provisions of Section
15.2-2308 of the Code of Virginia
(1950), as amended.
1-2 The official name of this body shall be the Frederick County Board of Zoning Appeals,
hereinafter referred to as the BZA.
ARTICLE II - PURPOSE
2-1 The primary purpose of the BZA is to hear and decide appeals, variances, and interpretations
of Chapter 165 of the Code of Frederick County, in accordance with the provisions of
Section 15.2-2308 Code of Virginia
(1950), as amended.
ARTICLE III - MEMBERSHIP
3-1 The membership of the BZA shall be open to residents of Frederick County, recommended
by Frederick County Board of Supervisors, and appointed by the Circuit Court for the
locality, as prescribed by Section 15.2-2308 Code of Virginia,
(1950) as amended. The
membership shall be no more than seven (7) members; or less than five (5) members. Terms
of office shall be five (5) years.
3-2 Members shall notify the Chairman via the Zoning Administrator twenty-four (24)
hours prior to the meeting, if a member is going to be absent or must abstain, as per 15.3-
2308 Code of Virginia,
(1950) as amended.
ARTICLE IV - OFFICERS
4-1 Officers of the BZA shall consist of a Chairman, Vice-Chairman and Secretary. The
Chairman and Vice-Chairman must be voting members of the BZA. The Secretary may be a
County employee.
4-2 The selection of officers shall be made by the voting members of the BZA at the first
meeting of the calendar year.
- 2 -
4-2-1 Nomination of officers shall be made by the voting members of the BZA at
the first meeting of the calendar year. Elections of officers shall follow
immediately. A candidate receiving a majority vote of the entire voting
membership shall be declared elected.
4-3 Duties
4-3-1 The Chairman shall:
4-3-1-1 Preside at meetings.
4-3-1-2 Rule on procedural questions.
4-3-1-3 Certify official documents involving the authority of the BZA.
4-3-1-4 Certify minutes as true and correct copies.
4-3-2 The Vice-Chairman shall:
4-3-2-1 Assume the full powers of the Chairman in the absence or inability of the
chairman to act.
4-3-3 The Secretary shall:
4-3-3-1 Ensure that attendance is recorded at all meetings.
4-3-3-2 Ensure that the minutes of all BZA meetings are recorded.
4-3-3-3 Notify members of all meetings.
4-3-3-4 Prepare agendas for all meetings.
4-3-3-5 Maintain files of all official BZA records and reports. Official records and
reports may be purged in accordance with applicable state codes.
4-3-3-6 Give notice of all BZA meetings, public hearings.
4-3-3-7 Provide to the Circuit Court reports and recommendations of the BZA.
4-3-3-8 Attend to the correspondence necessary for the execution of the duties and
functions of the BZA.
- 3 -
4-4 Term of Office
4-4-1 Officers shall be elected for a one-year term or until a successor takes office.
Vacancies shall be filled for an unexpired term by a majority vote of the BZA. In
such cases, the newly elected officer shall serve only until the end of the calendar
year or until a successor takes office.
ARTICLE V- MEETINGS
5-1 At the first meeting of each calendar year, the Board shall fix the date, time and place of all
its regular meetings for the ensuing calendar year, and shall fix the day on which a regular
meeting shall be continued should the Chairman later declare that weather or other conditions
make it hazardous for members to attend.
5-2 Notice of all meetings shall be sent by the Secretary with an agenda at least five (5) days
before the meeting.
5-3 All meetings of the BZA shall be open to the public except for Closed Sessions held in
accordance with the provision specified under Section 2.1-344(A) of the Code of Virginia,
(1950), as amended.
ARTICLE VI - VOTING
6-1 A majority of voting members shall constitute a quorum. No action shall be taken or motion
made unless a quorum is present.
6-2 No action of the BZA shall be valid unless authorized by a majority vote of members.
ARTICLE VII - OPERATING RULES
7-1 Order of Business
7-1-1 Call to Order
7-1-2 Pledge of Allegiance
7-1-3 Consideration of Minutes
7-1-4 Public Hearing
7-1-5 Other
7-1-6 Adjournment
- 4 -
7-2 Minutes
7-2-1 The BZA shall keep minutes of each meeting. The Chairman and Secretary shall sign
all minutes following approval by the BZA certifying that the minutes are true and
correct. Minutes made available to the public prior to formal approval by the BZA
shall be clearly identified as a draft version of the meeting.
7-3 Procedures
7-3-1 Parliamentary procedure in the BZA meetings shall be governed by Robert's Rules of
Order, Simplified and Applied,
except where otherwise specified in these procedures.
7-3-2 When a motion has been made and defeated, additional, different motions may be
made concerning the item under consideration.
7-3-3 Business items on the agenda shall be considered using the following procedures:
7-3-3-1 Report by County Staff
7-3-3-2 Presentation by Applicant
7-3-3-3 Citizen Comment
7-3-3-4 Rebuttal by Applicant
7-3-3-5 Discussion by BZA
7-3-3-6 Motion and Action by BZA
7-3-4 Public comment shall be allowed in all cases required by the Code of Virginia,
(1950), as amended.
7-3-5 The BZA members may ask questions of clarification and information after the staff
report, applicant presentation and citizen comment.
7-3-6 Petitions, displays, documents or correspondence presented at a meeting may be
made part of the official record of the meeting by motion of the BZA and are to be
kept on file by the Secretary. Such items need not be made part of the published
minutes.
- 5 -
7-3-7 Public Hearings
7-3-7-1 The BZA shall hold public hearings on all items as required by the Code of
Virginia, (1950), as amended. Such public hearing shall be advertised and
notifications provided as required by the Code of Virginia,
(1950), as
amended.
7-3-7-2 The Chairman may establish special rules for any public hearing at the
beginning of said hearing. These rules may include limitations on the time of
staff report, applicant presentation and citizen comment.
7-3-8 Tabling
7-3-8-1 The BZA shall have the authority to table agenda items if any one of the
following situations occurs:
A) The agenda item does not meet the requirements of the Code of
Virginia,
(1950), as amended.
B) The agenda item does not meet the requirements of the Code of
Frederick County
.
C) Insufficient information has been provided for the agenda item.
D) Issues or concerns that arise during formal discussion of the agenda
item warrant additional information or study.
E) The applicant provides the Frederick County Zoning Administrator
with a written request to table the agenda item.
F) The Frederick County Zoning Administrator is advised of an
emergency situation that prevents attendance by the applicant.
G) The applicant fails to appear at the meeting in which the application
has been advertised to be acted upon.
ARTICLE VIII - AMENDMENTS
8-1 These by-laws may be amended by a majority vote of the entire voting membership
after thirty days prior notice.
8-2 BZA shall conduct an annual review of these by-laws to ensure their accuracy. All
amendments to these by-laws shall be considered by the BZA in December of each
calendar year. The BZA shall adopt their by-laws during the first meeting of each
calendar year.
VARIANCE APPLICATION #01-13
DOUGLAS W. MILBURN
Staff Report for the Board of Zoning Appeals
Prepared: May 1, 2013
Staff Contact: Dana M. Johnston, Zoning Inspector
______________________________________________________________________________
This report is prepared by the Frederick County Planning Staff to provide information to the Board
of Zoning Appeals to assist them in making a decision on this request. It may also be useful to
others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
May 21 , 2013 – Pending
LOCATION
: Whitfield Subdivision, Double Church Road (Route 641), Lot 6, Block B
MAGISTERIAL DISTRICT
: Opequon
PROPERTY ID NUMBER
: 86A-2-B-6
PROPERTY ZONING & USE
Land Use: Residential
: Zoned: RA
ADJOINING PROPERTY ZONING & USE
:
North: RA (Rural Areas) Use: Residential
South: RA (Rural Areas) Use: Residential
East: RA (Rural Areas Use: Residential
West: RA (Rural Areas) Use: Residential
VARIANCE REQUESTED:
The applicant is requesting a 30 foot left side variance, resulting in a 20 foot left side setback, and a
31 foot right side variance, resulting in a 19 foot right side setback, for a single family dwelling.
REASON FOR VARIANCE:
The current setbacks for the RA zoning district eliminate a buildable area on this property.
Variance #01-13 – Douglas W. Milburn
May 1, 2013
Page 2
STAFF COMMENTS:
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 2009 to change the A-2 zoning district 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 to both sides.
The property has a road frontage of one hundred feet and a depth of approximately two hundred
forty-one feet and is a little over half an acre. Based on the small size of this property and the large
setbacks associated with the RA zoning district, staff believes this does produce an undue hardship.
The applicant is requesting a 31 foot right side variance, resulting in a 19 foot right side setback, and
a 30 foot left side variance, resulting in a 20 foot left side setback, for a 1,680 square foot single
family house. Staff would note that due to lot sizes within this subdivision, the majority of homes
are located closer to the side property lines. Therefore, the approval of this variance will not be a
substantial detriment or change the character of the subdivision.
STAFF CONCLUSIONS FOR THE MAY 21, 2013 MEETING:
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.
It appears that this variance meets the intent of the Code of Virginia, Section 15.2-2309 (2). This
request from the current setbacks of the RA zoning district may be justified.
ST641
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86 A 25
86A 3B 2
86A 3B 1 86 A 52
86 A 53
86 A 53A
86A 3B 3
86A 2B 4
86A 2B 5
86A 3A 9
86A 2B 6
86A 3A 10 86A 2B 7
86A 2A 8
86 A 24
86A 2A 7
86A 2B 886A 2A 6
86A 1 1
86A 2A 5 86A 2B 9
86A 2A 4
VAR0113
Applications
Parcels
Building Footprints
B1 (Business, Neighborhood District)
B2 (Business, General Distrist)
B3 (Business, Industrial Transition District)
EM (Extractive Manufacturing District)
HE (Higher Education District)
M1 (Industrial, Light District)
M2 (Industrial, General District)
MH1 (Mobile Home Community District)
MS (Medical Support District)
OM (Office - Manufacturing Park)
R4 (Residential Planned Community District)
R5 (Residential Recreational Community District)
RA (Rural Area District)
RP (Residential Performance District)
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Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: April 17, 2013Staff: djohnston
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VAR # 01 - 13Douglas MilburnPINs:86A - 2 - B - 6Left and Right Side Variances
VAR # 01 - 13Douglas MilburnPINs:86A - 2 - B - 6Left and Right Side Variances
0 100 20050 Feet
VARIANCE APPLICATION #02-13
KELLY B. RITTER
Staff Report for the Board of Zoning Appeals
Prepared: May 1, 2013
Staff Contact: Dana M. Johnston, Zoning Inspector
______________________________________________________________________________
This report is prepared by the Frederick County Planning Staff to provide information to the Board
of Zoning Appeals to assist them in making a decision on this request. It may also be useful to
others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
May 21 , 2013 – Pending
LOCATION
: East side of Welltown Road (Route 611), approximately 0.9 miles north of the
intersection with Cedar Hill Road (Route 671).
MAGISTERIAL DISTRICT
: Stonewall
PROPERTY ID NUMBER
: 33-A-12C
PROPERTY ZONING & USE
Land Use: Vacant and Residential
: Zoned: RA
ADJOINING PROPERTY ZONING & USE
:
North: RA (Rural Areas) Use: Vacant
South: RA (Rural Areas) Use: Vacant
East: RA (Rural Areas Use: Residential
West: RA (Rural Areas) Use: Vacant
VARIANCE REQUESTED:
The applicant is requesting a 75 foot right side yard variance, resulting in a 25 foot right side yard
setback, and a 50 foot rear yard variance, resulting in a 50 foot rear yard setback, for a single family
dwelling.
REASON FOR VARIANCE:
The placement of the drainfield leaves virtually no buildable area on the lot.
Variance #02-13 – Kelly B. Ritter
May 1, 2013
Page 2
STAFF COMMENTS:
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 2009 to change the A-2 zoning district to the current RA (Rural
Areas) Zoning District, making the current setbacks for the property 60 feet to the front, 100 feet to
the left side, 100 feet to the right side, and 100 feet to the rear.
Based on the small size of this property and the large setbacks associated with the RA zoning district,
as well as the location of the drainfield, staff believes this does produce an undue hardship. The
applicant is requesting a 75 foot right side yard variance, resulting in a 25 foot right side yard
setback, and a 50 foot rear yard variance, resulting in a 50 foot rear yard setback, for a 1,728 square
foot single family house.
STAFF CONCLUSIONS FOR THE MAY 21, 2013 MEETING:
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.
It appears that this variance meets the intent of the Code of Virginia, Section 15.2-2309 (2). This
request from the current setbacks of the RA zoning district may be justified.
ST661
WELLTOW
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33 A 12
33 A 13B
33 A 13
33 A 12C
33 A 12B
33 A 12A
32 7 A2
33 10 1
VAR0213
Applications
Parcels
Building Footprints
B1 (Business, Neighborhood District)
B2 (Business, General Distrist)
B3 (Business, Industrial Transition District)
EM (Extractive Manufacturing District)
HE (Higher Education District)
M1 (Industrial, Light District)
M2 (Industrial, General District)
MH1 (Mobile Home Community District)
MS (Medical Support District)
OM (Office - Manufacturing Park)
R4 (Residential Planned Community District)
R5 (Residential Recreational Community District)
RA (Rural Area District)
RP (Residential Performance District)
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Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: April 24, 2013Staff: djohnston
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VAR # 02 - 13Kelly RitterPINs:33 - A - 12CRight Side and Rear Yard Variances
VAR # 02 - 13Kelly RitterPINs:33 - A - 12CRight Side and Rear Yard Variances
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