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BZA 02-18-14 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 February 18, 2014. 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. ARCFIUT- 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. On a motion made by Mr. Oates and seconded by Mr. Carpenter, the minutes for the December 17, 2013 meeting was unanimously approved. ELECTION OF OFFICERS Chairman Givens opened the floor for nominations for Chairman. Mr. Oates nominated Mr. Givens, and it was seconded by Mr. Shirley. The nominations were closed for Chairman. The vote was unanimous to elect Mr. Givens as Chairman. Chairman Givens opened the floor for nominations for Vice -Chairman. Mr. Oates nominated Mr. Lowman, and it was seconded by Mr. Carpenter. The nominations were closed for Vice -Chairman. The vote was unanimous to elect Mr. Lowman as Vice -Chairman. Chairman Givens opened the floor for nominations for Secretary. Mr. Oates nominated Ms. Deeter and it was seconded by Mr. Carpenter. The nominations were closed for Secretary. The vote was unanimous to elect Ms. Deeter as Secretary. Frederick County Board of Zoning Appeals Page 1631 February 18, 2014 Chairman Givens inquired if there are any applications pending for March. Mr. Cheran responded there are no applications at this time; the cut-off date is Friday, February 21, 2014. PUBLIC HEARING The Variance Request #07-13 of Anthony & Heather Locascio, submitted by Marsh & Legge Land Surveyors P.L.C., for a 57.6 foot right side yard variance to a required 60 foot front setback which will result in a 2.4 foot setback along the Furror Field Court right-of-way. 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. Mr. Cheran presented the staff report. The applicant's property is zoned Rural Areas (RA) and the adjoining property owners are Rural Areas (RA). The applicant is seeking a 57.6 foot front yard variance to a required 60 foot front setback; if granted will result in a front setback of 2.4 foot along the right-of-way. Mr. Cheran pointed out that the plat that is in your agenda package will show you the house structure, accessory structure and the right-of-way along Furrow Field Court. The Staff received a complaint of inoperable vehicles and an illegal business possibly being run out of the accessory structure. Staff researched if a building permit was issued for the accessory structure. There was no building permit. The Applicant applied for a farm use exemption structure on February 19, 2013. The Frederick County Building Code Official granted the exemption. When applying for a farm use exemption no building permit is required. On the farm use application there is a section that addresses the minimum setbacks. It is up to the applicant to check with the Frederick County Planning Department concerning the setbacks. The farm exemption application is exempt from the Code of Virginia but not the Frederick County Codes. The farm exemption application means that you will use this accessory building for farm uses. The applicant stated on the application that the structure would be used for farm equipment. It appeared that the applicant didn't store farm equipment in the structure so the inspector continued to process a notice of violation of setback of the accessory structure which should be 60 feet from the right-of-way. The building was in violation as it was not being used as an ag exemption so the inspector turned the violation over to the Building Official. The setback for this property is 60 foot from Perry Road or any right-of-way. If there was no right-of-way the setback would be 15 foot in the Rural Areas (RA) for an accessory structure. Unfortunately, this property has three fronts. The front of the property would be along Perry Road because it is the shortest in length. The setback for the structure needed to be 60 foot off the front of Furrow Field Court which the applicant is not, and that is where the violation comes in. The Code of Virginia 1950 has amended 15.2-2309(2) and Section 165-1001.2(2) 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. The application for a variance does not meet the requirements as set forth by The Code of Virginia 1950. The applicant is in violation of the setback requirements of the RA Zoning District in regards to this accessory structure which is self-inflicted, and does not produce an undue hardship. The Frederick County Board of Zoning Appeals Page 1632 February 18, 2014 applicant first applied for farm exemption instead of applying for a building permit. Next the applicant set the accessory structure to close to the right-of-way. Therefore, this request for a variance of 57.6 feet resulting in a 2.4 foot front setback, from the current RA (Rural Areas) District setbacks is not justified. Staff would recommend denial of this variance. Mr. Madagan asked if the building is being used as agricultural and has anyone applied for building permits. Mr. Cheran responded that it is not currently being used for agricultural and no building permits have been applied for. Chairman Givens wanted to clarify that the farm exemption application clearly stated that they needed to check with the Frederick County Planning Department in regards to setbacks. Chairman Givens stated that also the letter approving the farm exempt states if the structure is used other than farm use, the applicant will need to apply for a building permit. Mr. Cheran responded no. The application for farm exempt has 6 questions that the applicant needs to complete in regards to farm exempt. The applicant circled that this structure would be used for farm machinery or equipment or maintenance or storage of vehicles, machinery or equipment on the farm. Mr. Cheran stated the farm exemption application states what the accessory structure can be used for. Mr. Artz of Marsh & Legge Land Surveyors spoke on behalf of the applicant. Mr. Locascio completed the application and on the bottom there are two questions that are to be answered by the applicant. One reads I am aware of the minimum setbacks on my property per Frederick County Code and the other reads I am not aware of the minimum setbacks on my property per the Frederick County Code, but I will verify the minimum setbacks with the Frederick County Planning Department. The procedure for applying for a building permit is to fill out the application and submit it with a plat or drawing to the Inspections Department. Then it is reviewed by the Frederick County Planning Department for setbacks. Based upon the plat, you may or may not be required to get a setback report. If you are placing a structure to close to the property line then you will need to get a setback report. A farm use exemption application never comes to the Planning Department for review. Mr. Artz states the Applicant checked the box on the farm exemption form that he would contact the Planning Department because he was not aware of setbacks. Mr. Artz said his client went over to Planning Department and no one was available. The Applicant then called the Planning Department and spoke to Mr. Johnston. The Applicant and Mr. Johnston had a few conversations. Mr. Johnston told the Applicant to go by his plat. The plat that the Applicant has is dated 1996 from Doug Legge and the setback may or may not have changed. The plat shows the house but doesn't show setbacks, but it has Furrow Field Lane as a 60 foot right-of-way. The Applicant came 30 feet from the center of the road and built the structure. Mr. Locascio went an additional 2 foot then placed the corner of the structure. Mr. Anthony Locascio came forward to speak. Mr. Locascio had a structure to collapse a few years ago. Mr. Locascio needed to replace the structure. He spoke with Mr. John Trenary, Building Official about his options and his needs. Mr. Trenary visited the property and the Applicant completed a farm exemption application. Mr. Locascio moved forward with the construction of structure. Mr. Locascio states that he was informed by Mr. Trenary that he would need to speak to the Planning Department about his setbacks. Mr. Locascio states he went to the Planning Department and no one was available. Mr. Locascio made several attempts to contact the Planning Department by phone and Frederick County Board of Zoning Appeals Page 1633 February 18, 2014 finally spoke to Dana Johnston. When speaking to Mr. Johnston, the Applicant provided him with his address and informed him of a private right-of-way which leads into two houses. Mr. Johnston said to go by your plat. Mr. Locascio started construction and the right-of-way is 30 feet on my property line. Nearing completion of the building, Mr. Locascio was informed by Mr. Burke, Zoning Inspector that he was in violation. Mr. Burke wanted Mr. Locascio to come to the Planning Department office so they could talk about where to put the structure. Mr. Locascio said he had already spoken to the Planning Department about the placement of the structure. Mr. Burke stated that the building would have to be moved or he would need to apply for a variance. The building is a pole building which I have put shingles and siding on to fit in well with the neighborhood and it would be difficult to move. Mr. Shirley wanted to know is this new structure in the same location as the old structure. Mr. Locascio said no it is in a different location. Mr. Oates asked what type of farming activity do you have on your farm? Mr. Locascio responded we now have chickens and a pot belly pig, but my wife has 3 horses we intend to bring to the property. We were going to bring them to the property after the completion of barn and then Mrs. Locascio tells me the fence is not adequate to keep horses in. Now I have to put in a new fence before bringing them home. Mrs. Locascio rescues horses. Mr. Oates states that Mr. Locascio measured from the center line of a private road when it's in a 60 foot right-of-way is on the property line. Mr. Oates states he has seen many plats that the center line varies on right- of- way. Mr. Locascio went by his plat which showed the center of the road and then he gave an additional 2 foot just to be safe. Mr. Oates said the copy we have doesn't have the center of the road listed. Mr. Carpenter pointed out that this is a very nice structure but it doesn't resemble a chicken coop or a horse barn. Mr. Locascio responded that the chicken coop is in the back of the property. The building is to house a horse trailer, truck, zero turn mower and for future equipment. The structure would also hold the feed and fencing tools. Mr. Scott wanted to clarify what was the nature of the violation. Mr. Cheran responded inoperable vehicle and possible illegal business public garage. Mr. Cheran responded this is not so. Ms. Joan Fine, attorney, came forward to represent Mr. Locascio. Ms. Fine states that Mr. Locascio is following the farm exemption application by either storing farm equipment and or machinery in the building now. The horses will eventually come when the new fence is installed. Ms. Fine pointed out this property has a street in front of property which is Perry Road. Then there are two right-of-way one in the back of the property and one to the side. Ms. Fine points out that it is to her understanding that Mr. Locascio did contact the Planning Department to clarify his setback. Mr. Locascio was told by Mr. Johnston that he had a 60 foot setback from Perry Road and would have to follow his plat for the side. Frederick County Board of Zoning Appeals Page 1634 February 18, 2014 The last point Ms. Fine made was that there is no safety net for setbacks on the farm exempt application because the Planning Department doesn't review them. Mr. Locascio went a step further and he contacted the neighbors and described the location and what the structure would look like. The neighbors had no objection. Chairman Givens ask if anyone had any questions. Chairman Givens opened the floor to the Public Hearing at 4:05 p.m. 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. Mr. Cheran came forward and stated that we are here today to see if that building is meeting the code. The reason we are here today is we received a complaint based and the County had to check out the complaint. The setbacks do apply for farm exemption buildings but the paperwork is not reviewed by the Planning Department. If the setbacks are on a plat then it is vested. If there are no setbacks, on the plat then you go by today's setbacks. The Zoning Ordinance states you can have a one for one replacement within a year. The replacement has to be in the same location and have the same foot print. We received paperwork from Mr. Locascio neighbors supporting him of this structure. Staff doesn't believe this is a hardship and wouldn't recommend approval of this variance. Chairman Givens clarified that at building permit time the Planning Department reviews the permit and if there was a setback question it would be addressed right then. Mr. Cheran responded yes. Chairman Givens said since this was ag exempt it was not reviewed by the Planning Department and the only thing the Applicant is required to do is inquire about setbacks. Mr. Cheran responded that is correct. Mr. Scott asked what option the Applicant will have if we turn the variance down. Mr. Cheran states that the Applicant has 30 days to appeal to the Circuit Court or he moves the building. Mr. Artz came forward and stated that the Applicant completed the Farm Use Exemption and checked the box that he was not aware of minimum setbacks. At that point, the Applicant contacted the Planning Department and was misinformed with the setback information. Ms. Fine came forward and stated she hopes the violation will not be considered. If you look at the whole picture, the Farm Use exemption form was completed; the property has three fronts, and the Applicant contacted the Planning Department, and was misinformed about the setbacks. Discussion Mr. Madigan suggested we ask the Applicant to plant trees around the building. Chairman Givens responded yes, but that wouldn't resolve the issue. Mr. Oates stated that there is only about 2 feet to plant trees. Mr. Artz came forward and said there is plenty of room to plant trees. It is a right-of-way as long as the property owners could pass through on the right-of-way. Frederick County Board of Zoning Appeals Page 1635 February 18, 2014 Chairman Givens asked two questions, one that the Applicant has no setbacks on his plat. Mr. Cheran responded that is correct. Now if the Applicant's plat did have a front setback of 40 feet, would we have to honor it? Mr. Cheran responded yes. Chairman Givens is having a difficult time understanding why Mr. Johnston would have given the Applicant that information. Mr. Oates informed the Board that the plat that is being circulated is a house location plat and usually there are no setbacks on that type of plat. Mr. Shirley states that when we go into a business seeking information we have to rely on the information that is given to us by the employee. Chairman Givens thinks we should ask the question, is this self-inflicted and does not produce an undue hardship under the State Code. Mr. Lowman thinks the hardship comes into play because the Applicant was misinformed by the County. The Applicant placed the structure in the wrong place which led into the hardship. Mr. Oates responded if this was in writing I would agree but this is only hear say. Chairman Givens mentioned this is in his magisterial district, as Chair he cannot make a motion. Mr. Oates made the motion that this 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. This 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. Mr. Carpenter made a second motion to deny the variance. Chairman Givens declared the motion to deny the variance defeated on a vote of 3 to 4. Chairman Givens states that this doesn't mean the variance is approved. Chairman Givens will entertain any other motion before him. Mr. Madigan made the motion to approve Variance #07-13. Mr. Lowman seconded the motion. The variance request is approved with a vote of 4 to 3. Adoption of By -Laws Chairman Givens said every year this Board needs to vote on the time of the meeting, vote on continuation if bad weather occurs and amend the by-laws or confirm existing ones. Chairman Givens is thinking we could put all of this into one section of the by-laws. Chairman Givens proposed changes to Amend Section 5-1. The Board of Zoning Appeals has held meetings on the third Tuesday of each month at 3:30 p.m., held in the Board of Supervisor meeting room in 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 p.m. in the Board of Supervisors Meeting Room, unless all applicants Frederick County Board of Zoning Appeals Page 1636 February 18, 2014 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. Chairman Givens states that in Article 8-1 that the board members were to receive a 30 day notice prior to meeting in order to make proposed changes in by-laws. This didn't occur but Chairman Givens spoke to County Attorney and as long as all seven voting members are present we can waive the 30 day notification. Mr. Scott made a motion and it was seconded by Mr. Carpenter to waive the 30 day notification. The vote was unanimous for approval. Mr. Oates made a motion to adopt the changes in Section 5-1 By -Law and it was seconded by Mr. Lowman. The vote was unanimous for approval. OTHFR There being no further business, the meeting adjourned at 4:45 p.m. Mr. Scott said he will still be representing Shawnee District because Mr. Fisher hasn't found a replacement yet. RESPECTFULLY SUBMITTED, f. y lames Givens, Chairman Pamala Deeter, Secretary Frederick County Board of Zoning Appeals Page 1637 February 18, 2014