BZA 02-18-14 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
February 18, 2014
3:30 p.m. CALL TO ORDER
1) Determination of a Quorum
2) Minutes of December 17, 2013
3) Election of Officers, Meeting Schedule, & Adoption of Bylaws
PUBLIC HEARING
4) Variance Request #07-13 of Anthony & Heather Locascio, submitted by Marsh & Legge
Land Surveyors, PLC, for a 57.6 foot front yard variance to a required 60 foot front setback
will result in a 2.4 foot front setback. This property is located on the West side of Perry
Road (Route 619), 0.20 miles north of the intersection of Cedar Creek Grade (Route 622),
and is identified with Property Identification Number 61-3-7 in the Back Creek Magisterial
District.
5) Other
MINUTES FOR
THE
DECEMBER 17, 2013
BZA MEETING
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Frederick County Board of Zoning Appeals Page 1626
December 17, 2013
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 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.
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Frederick County Board of Zoning Appeals Page 1627
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
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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.
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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.
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Frederick County Board of Zoning Appeals Page 1630
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,
_________________________
James Givens, Chairman
__________________________
Pamala Deeter Secretary
ELECTION OF OFFICERS
MEETING SCHEDULE
ADOPTION OF BY-LAWS
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FREDERICK COUNTY
BOARD OF ZONING APPEALS
BY-LAWS
(Proposed for adoption February 18, 2014)
ARTICLE I - AUTHORIZATION
1-1 The Frederick County Board of Zoning Appeals (BZA) 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.
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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.
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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.
5-1 Proposed changes to Amendment to Section 5-1
The BZA regular meetings will be held on the third Tuesday of each month at 3:30 PM in the
Board of Supervisors Meeting Room of the Frederick County Administration Building. In
the event of inclement weather, the meeting will be cancelled if: 1) The County
Administrative offices are closed on the day of the scheduled meeting, or 2) If the Chairman
declares that weather or other conditions make it hazardous for the BZA members or the
public to attend. In the event a scheduled meeting is cancelled, it will be continued to the
following Tuesday at 3:30 PM in the Board of Supervisors Meeting Room, unless all
applicants scheduled to appear at the cancelled meeting agree to delay the hearing of their
appeals until the next regular meeting of the BZA. Nothing herein shall prevent the
cancellation of a BZA meeting should no applications for BZA consideration be received by
the established deadline.
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.
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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
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
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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.
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.
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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 REQUEST #07-13
OF
ANTHONY & HEATHER
LOCASCIO
VARIANCE APPLICATION #07-13
ANTHONY & HEATHER LOCASCIO
Staff Report for the Board of Zoning Appeals
Prepared: February 6, 2014
Staff Contact: Mark Cheran, Zoning Administrator
______________________________________________________________________________
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:
February 18, 2014 – Pending
LOCATION: The property is located at West side of Perry Road (Route 619), 0.20 miles north of
the intersection of Cedar Creek Grade (Route 622).
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER: 61-3-7
PROPERTY ZONING & USE: Zoned: RA (Rural Areas)
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: (Rural Areas) Use: Residential
South: (Rural Areas) Use: Residential
East: (Rural Areas) Use: Residential
West: (Rural Areas) Use: Residential
VARIANCE REQUESTED: The Applicant is requesting a 57.6 foot front yard variance to a required
60 foot front setback. Should this variance be granted, it will result in a front setback of 2.4 foot along
the Furrow Field Court right-of-way.
REASON FOR VARIANCE: Setback and permit violations. The Fredrick County Zoning
Ordinance requires RA (Rural Areas) zoned properties have a 60 foot front yard setback from any
right-of-way, road or ingress/egress easement. The Applicant has constructed an accessory structure
that is in violation of the 60 foot setback.
Variance #07-13 – Anthony & Heather Locascio
Page 2
February 6, 2014
STAFF COMMENTS: The Applicant has applied for a 57.6 foot front yard variance after Staff
received a complaint of inoperable vehicles and an illegal business located at 215 Perry Road.
During the inspection of the property, Staff noted an accessory structure in violation of the front
setback. Staff researched if a building permit was issued for this accessory structure, there was no
record of a building permit. The Applicant applied for a farm use exemption structure on February
19, 2013, and was granted an exemption by the Frederick Building Code Official on February 21,
2013. A building permit is therefore not required. The farm use application has a section that
addresses minimum setbacks, and to contact the Frederick County Planning Department as to setback
requirements. It would appear that the Applicant did not contact the Planning Department. The
Applicant must also follow the definitions as required by the Code of Virginia and the 2009 Virginia
Construction Code. These definitions are listed on the farm use application. Staff noted during the
inspection of the property the accessory structure was not being used as a farm use building.
A farm exempt structure is not exempted from the Frederick County Zoning Ordinance with regards
to floodplain or setbacks of the RA (Rural Areas) Zoning District. The Applicant’s property has the
following setbacks: Front to Perry Road 60’, Right 60’, Left 50’, and Rear 60’. The Applicant’s
property is surrounded by a right-of-way on three (3) sides. The center line of Furrow Field Court is
the property line as shown on the plat submitted. Therefore, the applicant is in violation of the 60’
front setback on this property.
STAFF CONCLUSIONS FOR THE FEBRUARY 18, 2014 MEETING: The Code of Virginia
1950 as amended 15.2-2309(2) and Section 165-1001.2(C) of the Frederick County Zoning
Ordinance states that no variance shall be granted unless the application can meet the following
requirements: The strict application of the Ordinance will produce an undue hardship, the hardship
is not generally shared by the properties in the same zoning district and vicinity, that the
authorization of such variance will not be a substantial detriment to adjacent property, and the
character of the district will not be changed by the variance.
This application for a variance does not meet the requirements as set forth by The Code of Virginia
1950 as amended 15.2-2309(2) and Section 165-1001.2(C) of the Frederick County Zoning
Ordinance. The violation to the setback requirements of the RA Zoning District in regards to this
accessory structure is self-inflicted, and does not produce an undue hardship as required by the above
referenced Code (s). An undue hardship would apply only if a principal use could not be built on
this parcel due to the ordinance that is in effect. An accessory structure has not met the threshold
requirement of an undue hardship as to the use of the property. Therefore, this request for a variance
of 57.6 feet resulting in a 2.4 foot front setback, from the current of the RA (Rural Areas) District
setbacks is not justified. Staff would recommend denial of this variance application.
ST619
ST619
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61 3 8
61 3 5
61 3 1
61 3 2
61 3 3
61 A 48
61 3 4
61 A 46A
61 3 6
61 3 7
61 3 9
61 A 46 61 3 10
61 A 46C 61 2 12A
VAR0713
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: December 13, 2013Staff: mcheran
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VAR # 07 - 13Anthony and Heather LocascioPINs:61 - 3 - 7Variance 57.6 ft right side yard
VAR # 07 - 13Anthony and Heather LocascioPINs:61 - 3 - 7Variance 57.6 ft right side yard
0 210 420105 Feet