BZA 08-18-15 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
August 18, 2015
3:30 p.m. CALL TO ORDER
1) Determination of a Quorum
2) July 21, 2015 Meeting Minutes
PUBLIC HEARING
3) Appeal Application #03-15 of James W. Loveless, Jr., who is appealing the decision of
the Zoning Administrator as to Chapter 165 Zoning, Part 606, M1 Light Industrial District,
under Section 165-606.02 Allowed uses, of the Frederick County Zoning Ordinance. The
subject property is located at 291 Independence Drive, and is identified with Property
Identification Number 64-11-16 in the Shawnee Magisterial District.
4) Other
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Frederick County Board of Zoning Appeals Page 1652
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 July 22, 2015.
PRESENT: Eric Lowman, Chairman, Red Bud District; Jeremy McDonald, Back Creek; Reginald
Shirley III, Opequon District; Gary Oates, Stonewall District; and Ronald Madagan, Member at
Large.
ABSENT: Bruce Carpenter, Gainesboro District and Kevin Scott, Shawnee District.
STAFF
PRESENT: Mark Cheran, Zoning Administrator; and Pamala Deeter, BZA Secretary
CALL TO ORDER
The meeting was called to order at 3:30 p.m. and was determined there was a quorum.
Chairman Lowman inquired if there are any applications pending for August. Mr. Cheran
responded there is one new application at this time; the cut-off date is Friday, July 24, 2015.
On a motion made by Mr. Oates and seconded by Mr. McDonald, the minutes for February 17,
2015 and the meeting for March 17, 2015 were unanimously approved as presented.
Mr. Oates recused himself from the next item because he did a survey for the applicant.
PUBLIC HEARING
Variance Request #02-15 of Philip Smith for a 7 foot left side yard variance to a required 10
foot left side yard setback will result in a 3 foot left side yard setback. This property is located
off of Senseny Road left to Wilkins Road right onto Cherry Hill Circle and is identified with
Property Identification Number 54C-2-4-42B in the Red Bud Magisterial District.
Mr. Cheran presented the staff report. The applicant is requesting a 7 foot left side yard
variance to a required 10 foot left side setback resulting in a 3 foot left side setback to
accommodate an addition to an existing dwelling. The property is zoned RP (Residential
Performance) and the house was built in the 1960’s prior to Frederick County adopting zoning.
The recorded plat has a 20 foot front setback on the property and delineated no side or rear
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Frederick County Board of Zoning Appeals Page 1653
setbacks. The property is vested with the front setback of 20 feet. The County adopted zoning
in 1967 and this property at that time was zoned R-2 (Residential, Limited). The setbacks for
the R-2 at that time were 35 feet for the front and 15 feet for the side yards and 25 feet rear.
Frederick County amended the Ordinance in 1989 and that changed the zoning of the property
from R-2 to RP (Residential Performance). The current setbacks for the RP property today are
20 feet front, 10 feet sides and 25 feet to the rear.
The applicant started constructing the addition without a building permit. The applicant
applied for the building permit in July 2014. The setbacks on the permit indicated that a
setback survey needed to be done. On August 24, 2014 a setback survey was submitted to the
County which showed that the addition was in violation of the setbacks. The applicant
continued to construct without a permit. Staff cited the applicant for building without a
building permit and violation of setbacks.
Mr. Cheran stated the original dwelling appears to be in compliance; the illegal addition does
not comply with setbacks. The Code of Virginia 15.2 -2309 (2), state that no variance shall be
granted unless the application can meet the following requirements:
1. The property interest for which the variance is being requested was acquired in good
faith.
2. The granting of the variance will not be a substantial detriment to adjoining property or
nearby properties in the proximity of that geographical area.
3. The condition or situation of the property concerned is not of so general or recurring as
to make reasonably practicable the formulation of a general regulation to be adopted as
an amendment to the ordinance.
4. The granting of the variance does not result in a use that is otherwise p ermitted on such
property or a change in the zoning classification of the property.
5. The relief or remedy sought by the variance is not available through a special exception
or the process for modification of a zoning ordinance.
Mr. Cheran expressed this application for a variance does not meet the requirements as set
forth by The Code of Virginia 15.2-2209 (2), and the Frederick County Zoning Ordinance. The
setback requirements of the RP Zoning District do not produce an unreasonable restriction on
the property. If the applicant applied for the building permit first before constructing the
addition; then the staff would ultimately have recommended an application for variance. Staff
would recommend denial of this variance for the violation of the setback requirements was
self-inflicted.
Mr. Cheran concluded by expressing there is one adjoining property owner against this
variance. A copy of her letter is at your seat. The adjoining property owner wasn’t upset with
the procedure that the applicant followed.
Mr. Shirley asked a question as to what is the date of the building permit and the time frame.
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Frederick County Board of Zoning Appeals Page 1654
Mr. Cheran stated the applicant applied for building permit in July 2014. The applicant was
required to provide a setback survey. A setback survey was completed and the addition was in
violation of the setback. The setback survey was dated August 24, 2014. The applicant
continued to work on the addition. The applicant was cited for constructing an addition
without a permit by certified mail on September 23, 2014 and another letter was sent on March
11, 2015. A criminal complaint was filed on May 11, 2015.
Mr. Madigan confirmed with Mr. Cheran that the applicant started the addition without a
permit and then applied for the permit but continued to work on the addition without finalizing
the building permit.
Mr. Shirley and committee member viewed the building permit.
Chairman Lowman confirmed with Mr. Cheran that the Board is just there to look at the
variance as to if it is inflicted beforehand or after the fact.
Mr. Philip Smith the applicant came forward to speak. Mr. Smith works out of town and his
nephew was framing the base area. The County came by and informed Mr. Smith that he
needed a building permit. The applicant came to the County and applied for a building permit
and his nephew continued to work on the addition. Mr. Smith had the inspection department
to come and look at the addition. The inspection department said yes you have applied for a
permit but you can’t continue working on the addition until your building permit is finalized and
there is no issue with the permit. The applicant was informed that he needed to do a setback
survey. Once the survey was completed the addition was too close to the setbacks. At that
time, Mr. Smith was told he would need to apply for a variance and the addition was almost
complete. At this point, Mr. Smith just needed to put shingles and siding on the addition and
the structure would be complete.
Chairman Lowman asked the question to Mr. Smith how much of the addition is complete on
the inside. Mr. Smith replied everything but a little touch-up paint.
A committee member asked what is the size of the addition. Mr. Smith answered 12 x 12.
A questioned was posed could this addition be placed on another side of the house. Mr. Smith
replied this is just a bathroom and was placed off of the master bedroom.
Chairman Lowman asked if anyone present wished to speak either in favor or against this
variance request. There was no response and Chairman Lowman closed the public hearing
portion of the meeting.
DISCUSSION
Chairman Lowman asked a question to Mr. Cheran about setbacks. This house was built in the
1960’s before zoning was adopted. The recorded plat though shows the setback 20 foot front
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setback and delineated no side or rear setback. Zoning was adopted in 1967, and the amended
the Ordinance in 1989 and changed the setback. Therefore, the setbacks for this property
today are 20 feet front, 10 feet sides and 25 feet to the rea r.
Mr. Shirley confirmed that The May’s are the neighbor on the side of the addition and that Mr.
Cheran spoke with them and they are in opposition of this variance.
Mr. McDonald asked does this addition affect their house or driving area. Mr. Cheran rep lied,
the concerns of the neighbor is the addition is close to property line and was built without
permit.
A committee member asked what recourse the applicant has if we deny the variance. Mr.
Cheran stated that the applicant has 30 days to appeal to the Circuit Court. If he doesn’t
appeal, then applicant will need to take the addition down or move it or it goes to the General
District Court.
Mr. Shirley made a motion that Variance Request #02 -15 of Philip Smith be denied. Mr.
Madigan seconded the motion and it passed by a majority vote for denial.
OTHER
Mr. Cheran came forward and stated there have been some changes in state legislature as far
as rule this took effect July 1, 2015. The new criteria are listed in the agenda packet. The
section that changed is that no variance shall be granted unless produce an undue hardship and
has changed to a reasonably decision. The new criteria are listed in the agenda packet number
2 and 3 is where the changes are.
The General Assembly also changed that no communication about the case between staff and
board member unless the applicant, applicant’s attorney or the County attorney is present
when questions are asked.
Mr. Oates stated that this would be his last meeting.
Mr. Oates made a motion and Mr. Shirley seconded the motion to adjourned meeting.
There being no further business the meeting adjourned at 4:14
APPEAL APPLICATION #03-15
JAMES W. LOVELESS, JR. APPLICANT
Staff Report for the Board of Zoning Appeals
Prepared: July 7, 2015
Staff Contact: Mark R. 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:
August 18, 2015
Public Hearing Action Pending
LOCATION: The subject property is located at 291 Independence Drive.
MAGISTERIAL DISTRICT: Shawnee
PROPERTY ID NUMBER: 64-11-16
PROPERTY ZONING & USE: Zoning: M-1 (Light Industrial)
Land Use: Warehouse
ADJOINING PROPERTY ZONING & USE:
North: M-1 (Light Industrial) Land Use: Warehouse/Office
East: M-1 (Light Industrial) Land Use: Warehouse
South: M-1 (Light Industrial) Land Use: Vacant
West: M-1 (Light Industrial) Land Use: Warehouse
Appeal Application #03-15 – James W. Loveless, Jr.
July 7, 2015
Page 2
APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick
County Zoning Ordinance
REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to
land uses within the M-1 (Light Industrial) Zoning District.
STAFF COMMENTS: The property located 291 Independence Drive was cited for violation of the
Frederick County Zoning Ordinance Section 165-606.02, on June 8, 2015; for operation of the
FASST fitness center/gym within the M-1 (Light Industrial) Zoning District.
The County of Frederick uses the Standard Industrial Classification Code (SIC) to determine the
types of uses that are allowed within the County’s commercial and industrial zoning districts. Fitness
centers/gyms are classified as SIC-79 Amusement and Recreation Services operated indoors. This
use is only permitted within the B-2 (General Business) and B-3(Industrial Transition) Zoning
Districts. The SIC-79 classification use is not listed under the M-1 Zoning District. Therefore,
fitness/gyms are not permitted within the M-1 Zoning District under Section 165-606.02 of the
Frederick County Zoning Ordinance. This property being used as a fitness center/gym is in violation
of the Frederick County Zoning Ordinance.
STAFF CONCLUSIONS FOR THE AUGUST 18, 2015 MEETING: Staff is requesting to the
Board of Zoning Appeals to affirm the decision of the Zoning Administrator in the administration of
the Frederick County Zoning Ordinance, Section 165-606.02 that SIC-79 Amusement and Recreation
Services operated indoors is not a permitted use within the M-1 Zoning District.
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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: July 8, 2015Staff: mcheran
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320INDEPENDENCE DR
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380ARBOR CT
332INDEPENDENCE DR
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328INDEPENDENCE DR
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287VICTORY RD
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