BZA 07-21-15 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
July 21, 2015
3:30 p.m. CALL TO ORDER
1) Determination of a Quorum
2) February 17, 2015 and March 17, 2015 Meeting Minutes
PUBLIC HEARING
3) 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 Redbud Magisterial
District.
4) Other
MINUTES FOR
THE
FEBRUARY 17, 2015
AND
MARCH 17, 2015
BZA MEETINGS
DRAFT
Frederick County Board of Zoning Appeals Page 1647
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 February 17, 2015.
PRESENT: Gary Oates, Stonewall District; Reginald Shirley, Opequon District; Ronald Madagan,
Member-At-Large.
ABSENT: Eric Lowman, Vice-Chairman, Red Bud District; Bruce Carpenter, Gainesboro District;
and Kevin Scott, Shawnee District.
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 Gary Oates at 3:30 p.m. and he determined there wasn’t a
quorum. No final action was taken.
The meeting adjourned at 3:35.
Respectfully submitted,
____________________
Eric Lowman, Chairman
____________________
Pamala Deeter, Secretary
DRAFT
Frederick County Board of Zoning Appeals Page 1648
MEETING MINIUTES
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 March 17, 2015.
PRESENT: Eric Lowman, Vice-Chairman, Red Bud District; Gary Oates, Stonewall District; Reginald
Shirley III, Opequon District; Bruce Carpenter, Gainesboro District; Jeremy McDonald, Back Creek
District; Kevin Scott, Shawnee 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 at 3:30 p.m. and was determined there was a quorum.
On a motion made by Mr. Oates and seconded by Mr. Carpenter, the minutes for the July 15, 2014
meeting was unanimously approved with no changes.
This being the first Board of Zoning Appeals meeting in 2015, the election of officers and adoption of the
Bylaws was held.
Vice-Chairman Lowman opened the floor for nomination for BZA Vice-Chairman. Mr. Oates nominated
Mr. Carpenter, and it was seconded by Mr. Scott. The vote was unanimous to elect Mr. Carpenter as
Vice-Chairman.
Mr. Cheran opened the floor for nomination for BZA Chairman. Mr. Carpenter, Vice-Chairman
nominated Mr. Lowman, and it was seconded by Mr. McDonald. The vote was unanimous to elect Mr.
Lowman as Chairman.
Mr. Cheran opened the floor for nomination for Secretary. Mr. Carpenter nominated Mrs. Deeter, and it
was seconded by Mr. Scott. The vote was unanimous to elect Mrs. Deeter as Secretary.
Mr. Cheran stated the next order of business is setting the time, day and location for the Board of
Zoning Appeals meeting and the Bylaws. Currently, the meeting time is 3:30 p.m. on the third Tuesday
of the month and the location is the Board Room of the Frederick County Administration Building.
DRAFT
Frederick County Board of Zoning Appeals Page 1649
Mr. Oates made a motion to keep the Board of Zoning Appeals meeting time at 3:30 p.m., on the third
Tuesday of the month at the same location and no changes to the Bylaws. Mr. Scott seconded the
motion. The vote was unanimous.
Mr. Cheran stated that the next meeting is April 21, 2015, and as of today, no applications have been
submitted. Mr. Cheran stated the deadline is March 27, 2015.
PUBLIC HEARING
Variance Request #01-15 of Kenneth Wright for a 42.4 foot front yard variance to a required 60 foot
front setback will result in a 17.6 foot front setback, 30.6 foot right side variance to a required 50 foot
right side setback will result in a 19.4 foot right side setback and a 65.0 foot left side variance to a
required 100 foot left side setback will result in a 35 foot left side setback. This property is located at
396 McDonald Road and is identified with Property Identification Number 51-A-150 in the Back Creek
Magisterial District.
Mr. Cheran presented the staff report. The Applicant is requesting a variance and the property is
located at 396 McDonald Road in the Back Creek Magisterial District. Mr. Wright is requesting a 42.4
foot front yard variance to a required 60 foot front setback resulting in a 17.6 foot front setback, 30.6
foot right side variance to a required 50 foot right side setback resulting in a 19.4 foot right side setback,
and a 65.0 left side variance to a required 100 foot left side setback resulting in a 35 foot left side
setback.
The property is zoned RA (Rural Areas) and the adjoining property is zoned RA too.
Mr. Cheran stated that Frederick County adopted zoning 1967. The Frederick County historical zoning
map shows this property 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. The County
amended its Ordinances in 1989 and 2009 to change the A-2 Zoning Districts to the current RA (Rural
Areas) Zoning Districts, making the current setbacks for the property 60 feet to the front, 100 feet to the
right and 50 feet to the rear and left side.
Mr. Cheran stated that the house was constructed in 1946 and is currently not livable, due to foundation
and truss damage. Mr. Wright is requesting to replace the existing damage and to add a bump out for a
new bedroom.
Mr. Cheran stated that a variance must meet the following criteria of The Code of Virginia 1950 as
amended 15.2-2309(2), and Section 165-001.02(C) of the Frederick County Zoning Ordinance state that
no variance shall be granted unless the application can meet the following: 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. The authorization of such variance will not be a
substantial detriment to the adjacent property. 4. The character of the district will not be changed by
the variance.
Staff believes that this request is consistent with setbacks of the surrounding properties on McDonald
Road where the dwellings are 40 to 50 feet from the road. The dwelling cannot be moved due to
DRAFT
Frederick County Board of Zoning Appeals Page 1650
topography and drainfield. Should the variance be granted, the resulting setbacks will be 17.6 foot front
yard setback, a 35 foot left side yard setback, and a 19.4 foot right side yard setback.
Chairman Lowman asked if there were any questions for Staff.
Chairman Lowman asked if anyone is in favor of this variance to come forward and speak.
Mr. Wright came forward. Mr. Wright asked the Board members if they had any questions for him.
Mr. Oates stated he noticed the addition is coming closer to the well and wanted to know if the Health
Department has signed off yet.
Mr. Wright replied no not yet. Mr. Wright said when they pulled back the floor they found the
foundation was setting on nothing but stacked rock.
Mr. Oates commented that if approved that contingence might be the Health Department approval and
want to make the applicant aware. Mr. Carpenter suggested you might have to drill another well.
Mr. Carpenter questioned the outbuilding looks like they are in the drainfield showing on the map. The
previous owner of the property, Mr. Wright’s, brother came forward and answered question concerning
the outbuilding. The buildings are pole barns or sheds and are falling down. The intention is to remove
them completely. When the Applicant’s brother purchased the property, the drainfield was in working
condition.
Chairman Lowman opened the floor up to anyone opposing the variance.
Mr. Strawderman who lives at 388 McDonald Road came forward and passed out a handout in which he
is opposing the variance. Mr. Strawderman expressed his concerns on encroaching of his property and
the possibility of having to put in a large septic system that meets today codes which could possibly
harm my property.
Mr. Oates questioned Mr. Strawderman about the survey submitted it doesn’t have a house on it. The
survey has a garage and shed. Mr. Strawderman said the garage is the house. I have a large garage with
an apartment like house. Mr. Oates confirmed that the survey was mislabeled. Mr. Oates also
clarified the outbuilding on Mr. Strawderman’s property.
Mr. Madagan stated, he rode by the property and two out buildings appear to be right on property line.
Mr. Oates clarified that Mr. Strawderman objections to the variance is that the encroachment of 3 foot
closer on the right side property line going from 22.8 foot to 19.4 foot. Mr. Strawderman agreed with
Mr. Oates.
Mr. McDonald asked Mr. Strawderman would he object if the dwelling was moved closer to the front or
to the other side. Mr. Strawderman didn’t oppose to moving dwelling closer to front or to the other
side. Mr. Strawderman main concern is about the dwelling being 3 foot closer to his property line.
DRAFT
Frederick County Board of Zoning Appeals Page 1651
Mr. Scott questioned the survey because the survey did not show the name of the engineer. Mr.
Strawderman couldn’t recall the engineers name but he is located in Woodstock. Mr. Strawderman said
the survey is recorded at the Courthouse.
Mr. Wright’s brother stepped forward and said he has copies of the approved well and septic paper
from the Health Department and approved for a two (2) bedroom perk but didn’t bring them to the
meeting.
DISCUSSION
Mr. McDonald stated that viewing the property at 396 McDonald Road from the road it does appear
there is a slope behind the dwelling. Mr. McDonald stated that the agenda provided by the County it
appears that Mr. Strawderman house is closer to the property lines than what the Applicant is asking
for.
Chairman Lowman acknowledged that Mr. Strawderman has several concerns that the BZA cannot
address. These issues should be address by other County Departments or Agencies. Chairman Lowman
stated we are here to make a decision on the variance and the setbacks.
Mr. Carpenter asked Mr. Wright if he would be willing to do a temporary support brace and pour the
foundation on the right side leaving the foundation at 22.8 foot. Mr. Wright replied yes.
Mr. Strawderman came forward and said he wouldn’t be opposed if the Board grants the variances if he
came no closer to my property line and that Mr. Wright had to have the Health Department approval.
Public hearing is closed
Mr. McDonald made a motion to approve the variance with contingent of Health Department approval.
The variance #01-15 Kenneth Wright approving the existing setback 22.8 foot right side per plat, 42.4
foot front yard variance to a required 60 foot front setback resulting 17.6 foot front setback and a 65.0
left side variance to a required 100 foot left side setback resulting in a 35 foot left setback. Mr. Oates
seconded the motion.
Chairman Lowman called for the vote it was unanimous for approval.
There being no further business, the meeting adjourned at 4:15.
Respectfully submitted,
______________________
Eric Lowman, Chairman
_____________________
Pamala Deeter, Secretary
VARIANCE REQUEST #02-15
OF
PHILIP SMITH
VARIANCE APPLICATION #02-15
PHILIP SMITH
Staff Report for the Board of Zoning Appeals
Prepared: July 9, 2015
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:
July 21, 2015
Public Hearing Action Pending
LOCATION: The property is located at 122 Cherry Hill Circle.
MAGISTERIAL DISTRICT: Redbud
PROPERTY ID NUMBER: 54C-2-4-42B
PROPERTY ZONING & USE: Zoned: RP
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RP (Residential Performance) Use: Residential
South: RP (Residential Performance) Use: Residential
East: RP (Residential Performance) Use: Residential
West: RP (Residential Performance) Use: Residential
VARIANCE REQUESTED: 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.
REASON FOR VARIANCE: To accommodate addition to an existing dwelling. The addition
was built over left side setback, without a building permit.
Variance #02-15 – Philip Smith
Page 2
July 9, 2015
STAFF COMMENTS: The applicant applied for a building permit in July 2014 to construct an
addition and was required to provide a setback survey. A setback survey dated August 24, 2014 was
provided to the County which showed that the addition was in violation of the setbacks, yet the
applicant continued to construct the addition without a building permit. In accordance with Section
165-101.07A of the Frederick County Zoning Ordinance, all structures shall meet the requirements
set forth in the Frederick County Zoning Ordinance and be in compliance with the current Building
Code. Therefore, the addition to this structure constitutes a violation of Section 165-101.07A of the
Frederick County Zoning Ordinance. Staff cited the applicant for constructing an addition without a
building permit by certified letter on September 23, 2014 and another letter was sent on March 11,
2015. A criminal complaint was filed on May 11, 2015.
The setbacks for this dwelling on building permit #1209-2014 were: front: attached, right 50 feet, left
10+ feet, and 43 feet rear. Section 165-201.02 H of the Frederick County Zoning Ordinance requires
survey standards to establish the location of primary structures located five (5) feet or less from the
minimum setback requirement of the zoning district in which the property is located. The setback
survey revealed a seven (7) foot encroachment into the left side yard setback.
The property is zoned RP (Residential Performance) and has a lot square footage of 9,172 sq. ft.,
with a single-family dwelling built in the1960’s prior to Frederick County adopting zoning. The
recorded plat for the Green Acres Subdivision Section 4 has a 20 foot front setback on the properties,
and delineated no side or rear setbacks. The property is vested with the front setback of 20 feet.
Frederick County adopted zoning in 1967, the Frederick County historical zoning map shows this
property zoned R-2 (Residential, Limited). The property setback lines at the adoption of the zoning
ordinance were 35 feet for the front and 15 feet for the side yards and 25 feet rear. Frederick County
amended its Ordinance in 1989 and changed the R -2 Zoning District to the current RP (Residential
Performance) Zoning District. Frederick County Zoning Ordinance allows for lots in the RP Zoning
District to range in size from 100,000 sq. ft. to 3,000 sq. ft. Section 165-402.09 C of the Frederick
County Zoning Ordinance, requires setbacks of this housing type to be: 35 feet front, 10 feet sides,
and 25 feet rear. Therefore, the setbacks for this property are: 20 feet front, 10 feet sides and 25 feet
to the rear.
The original dwelling appears to be in compliance; the illegal addition does not comply with
setbacks. 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. The applicant
should have applied for a building permit that would ultimately require an application for a variance.
Therefore, staff would recommend denial of this variance application, as the violation of the setback
requirements was self-inflicted.
Variance #02-15 – Philip Smith
Page 3
July 9, 2015
STAFF CONCLUSIONS FOR THE JULY 21, 2015 MEETING: The applicant is seeking a 7
foot left side yard variance. Should this variance be granted, the building setbacks for this property
would be 20 feet in the front, 25 feet in the back, 10 feet right side, and would change to 3 feet on the
left side. It appears that this variance does not meet the intent of the Code of Virginia, Section 15.2-
2309 (2). This request from the current setbacks of the RP Zoning District may not be justified.
Staff would recommend denial of this variance application, as the violation of the setback
requirements was self-inflicted. The strict application of the Frederick County Zoning Ordinance did
not produce an unreasonable restriction on the property as required by the Code of Virginia 15.2-
2309 (2).
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 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 permitted 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.
124COUNTRYCLUB CIR
122COUNTRYCLUB CIR
120COUNTRYCLUB CIR
129CHERRYHILL CIR
128CHERRYHILL CIR
127CHERRYHILL CIR
116WILD ROSECIR
114WILDROSE CIR
124CHERRYHILL CIR
125CHERRYHILL CIR
115WILDROSE CIR
123CHERRYHILL CIR
100TWINHILL CIR
118CHERRYHILL CIR
121CHERRYHILL CIR
113WILDROSE CIR 116CHERRYHILL CIR
111WILDROSE CIR 114CHERRYHILL CIR
119CHERRYHILL CIR
109WILD ROSECIR 112CHERRYHILL CIR
117CHERRYHILL CIR
101TWIN HILLCIR
110CHERRYHILL CIR
115CHERRYHILL CIR
108CHERRYHILL CIR
103TWIN HILLCIR
113CHERRYHILL CIR
106CHERRYHILL CIR
C
H
E
R
R
Y
H
I
L
L
C
I
R
Applications
Parcels
Building Footprints
I
Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: June 23, 2015Staff: mcheran
C
H
E
R
R
Y
H
I
L
L
C
I
R
WILKI
N
S
D
R
WIL
D
R
O
S
E
C
I
R
COUNTRY CLUB CIR
WILKINS PL
TWIN HI
L
L
C
I
R
VAR # 02 - 15Philip SmithPIN:54C - 2 - 4 - 42BSide Yard Variance
0 90 18045 Feet
VAR 02-15
VAR # 02 - 15Philip SmithPIN:54C - 2 - 4 - 42BSide Yard Variance
122CHERRYHILL CIR