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BZA 10-20-15 Meeting MinutesMEEITING MINUIIES CIF THE FREDERICK COUNTY BOARD OF ZONING APP13ALS Held in the Board Room of the Frederick County Administration Building„ 107 N. bent Street„ Winchester„ Virginia on October 20„ 2015. PRESENT: Elric Lowman, Chairman, Red Bud District; Bruce Carpenter, Vice Chairman, Gainesbcro District; Jeremy McDonald, Back Creek District; Regiralo Shirley III, Opecuor District; Kevir Scott, Shawnee District; arc Rora a Macagan, Member at Large. ABSENT: John Clire, Storewall District. STAFF PRESENT: Mark Cheran Zonirg Administrator; David Burke, Zoning Inspector; Roderick Wil iams, Courty Attorrey, and Ramala Deeter, BZASecretary. CALL TO ORDER The meeting was cal ed to order at: 3:30 p.m. arc was detierminec there was a cuorum Chairman Lowman inquired if there are ary applications pendirg for the month of November. Mr, Cheran respondec yes, one application at this time, The cut-off date is October 23, 2C15. Or a motion made by Nr. Shirley and secoreed by Mr. Carpenter the minutes for September 15, 2C15 were unanimously approvec as presented. Mr. Cheran recommended to the Boarc to put the old business first, Application # 03-15 James W. Loveless Jr, appea cfthe zoning administrator since the Board has already had the public hearirg cn this application. Cr a motion made bV Mr. Shirley arc seconded by Mr. Madagar the old busiress was heard before the public hearingstiartec arc wasapprovee with unanimousivote. Chairman Lowmar recusec himself from the old business because of personal issues. Mice -Chairman Carpenter led the Rleege of Allegiance. Mr. Cheran came forward, this is the appeal application 403-15 of .aures W. Loveless Jr., who is appealing the decision of the Zoning Aeministlrat'or as to Chapter 165 Zcring, Rart 606, under Sectior 165-6C6.C2 Allowee Uses in the M1 (Light IroustrialJ District. This applicatior has been postponed twice and the Board reeds to take action at this meeting. fir Edericld Count Board of Zoning Appeals Hage 1664 Mr. Cherar briefed the Board that a public hearing was held on August 18, 2C15, the actior at that meeting was postponed for 3C daysi, while the Courty Aiiorney wase consulted with legal questions and the Applicant) was workirg with the terants, A public rreetlirg wase held or Septerrber 15, 2015 arc the Board postpored ttaking action for 20 days. Mr. Cherar is requesting to the Board of Zoning Appeals to affirm the decision of the Zoring Acmiristrator in the administratior of the Frederick County Zoring Ordinance, Section 169-606.C2 that SIC -719 ArrusemeM arc Recreatlicr Services operatee indoors is nota a permilted use within the M1 Zoning District. Vice-Chairrran Carpenter asked the Applicart isi there any new inforrration. IVIr. Pettler, Attorney, representirg the Applicant came forward to address the Board. Mr. Fletitler slated that hiss client has two tenarts Winchester Soccer and FASSTI. The two tenants would like to firish their lease which is up it August 2016. Mr. Pettler isi aware that this application according to the Board of Zonirg Appeal thinks they only have two options rather to approve or dery. IVIr Flettller preserls tlhree pointis 1e the Board 10 consider while makirg their decisior, 1. §15.2-23-C7 ofVirgiria Code urcer Vested Right Not Irrpairec. 2. §15.2-2311 of the Virginia Code under Appeals to Board. 3. §165-1001.02 of the Frederick Ceunly Code Ordinarce urder Power & Duties of Board Zoring Sectlien A #2. Mr. Shirley asked the quesitior to Mr. Rettler why didn't your client just rezone the property sirce she made upgrades to property. IVIr. Petller sitlated she was under tlhe irrpresisien sirce the previous tlenantsi were allowed for indoor recreation that the new terants would be too. The applicart was unaware of the zoring use until he received the rotice of violation letter. Mr. Pettler stated the Board might wars to sleek out the written document, as to who granted permisisicn arc how it wasigranted, before action is Hake on tlhe applicatlion Mr. Williarrs, County Attorney, stated that this application has beer to the Board two previous rreetings, the public hearing is closed, anc the lime to present evidence is gore. THE record is new complete. III is new being brought to the Board's atterlion that tlhere is statement being rrade that there was ar approval and not sure what permisisicn was given. If there was a documert, the Fllanning Department would have includeo it with the agerca. Mr, Williams stated the significant affirrrative gevernmenial act, The Virgiria Coce sitates 71 different exarrplescfwhatlwould constitute a sigrificartgcvernrrertalact. 1. Governing body Has accepted proffers or proffer conditions which sipecific use related zoning amendment. 2. Governing body has approved an applicaticr for rezoning 3. Goverring body or the Board of Zoning Appeals hasi granted a special exception or use permit, 4. Board of2cning has approved a variance. Frederick Count Board of Zoning Appeals Page 1665 9. The Governing body has, approved pre Iimirary subcivision plats, site plan, and plar of development) or the like ford EVE lopment of the property. 6. Governing Body Hasa pprcved a final subdivision plats, site plar, plan ofdevelcpmentl forth property. Mr. Williams nodes that 1 through E does not pertain to this applicatior arc Nr. William's quoted number 7 of the significant) affirmative gevernmentla I acts. 7. The Zon ng Administlratlor or otlher admiristratlive officers Has issued a written orcer requirement) decision or detlermination regarding tlhe permissibility of a specific use of density landowrer propertythat is no longer subject) to appeal and no lorger subject) to change, modification or reversal. Mr. Williams_ nodes that) Mr. Petltler is referring to number 7 act as to where something should have been documented or written down. Mr. Williams noted tlhat this is the Applicantl's burden of proof to locate this written documentlatior. A violatlior letter was mailed out on June 8, 2C15, and four months has lapsed and row we are looking for written determination in which no one has found itl yet. Mr. Williams stated that this, Board isi appointlec by the Circuit Courts and is here to do its job. Mr. James_ Frisby, FASSTI owner, came forward. Mr. Brisby stlatlec he would like to stay at that location until Me erc of the lease which is it August, Mr. Rrisby states He Has a service to offer to the comm unity a nd not) tlryi ng tlo do anyth ing illegal. Mr. Madagan made a motion to uphold the decisior of the Zoning Administlratlor, and was secordee by Vice -Chairman Carpenterand the vote was unarimeus. Vice-CHairmar Carperterand Mr. Scottexpressed empatlhytlowarc tlhetlenantls. PUBLIC HEARING Mr. Cheran preserted Variarce Applicatlior X04-15 of William G. Meier IV who is requesting a 35 foot left side yard variance to a required 50 foot) left side setback resultlirg in a 15 foot left) siee setback and a 39 foot right side yard varierce to a requirec 50 foot right side setback resulting in a 15 foot) right side setback. The property is located it the 1,000 block ofJorcan Springs Road, on the south side of the roac in the Stonewall Magisterial District ane is idertifiec by Property Identlificatior Number 44-A-22. The zorirg of the property is RA (Rural Areas) and the ac;oiring propertlies are R4, (Residential Plarned) to the south, arc the north, east and west) are RA (Rural Areas). Mr. Cheran stated the reason for the variance is the property is 0,754E acres in size, and cue to exceptioral narrowress of the parcel, a structure cannot be built) with the current) RA setback requirements. Frederick Count Board of Zoning Appeals Page 1666 Frederick Country adopted zonirg in 1967. The historical zonirg maps shows tihis property was zoned A- 2 (Agricultural General) in 1967. 1TE prcpertly setback lines ati the adeptiien of the zoning ordirance were 35 feet for the front) and 15 feet) for the side yards. Ir 1989 the crdinarce was amended and charged the A-2 Zoning District to tiHE currert RA (Rural Areas) Zonirg District). Again, on February 28, 2COl, the Board of Supervisors amended the currert setlback fertlhis property to 6C feet tlo the frort, 5C feet) tic the rear, 50 feet or the left side and 5C feet o n the right) sic e. The adjoining properties were createc prior tic 1967. TIME setbacks for these parcels were associated with the A-2 aonirg District setback, The setback for tlHEse properties are ccnsistlErt with currErt A-2 setbacks, the dwellings are approximately 15 feet er less from the side property lines. The Code of Frecerick 165-1CC1.2 and The Ccde of Virgiria 15.2-23C9 12), stades that no variance shall be granted urless tihe application car meet tihe following recuirementis, 1. The property interest for which tihe va riance is being requested was acc uired in good faith. 2. The grarting of the variance will rot be a substantlia I detlrimert do acjoining property er rea rby properties in the proxirr itly of tlhatl geogra phica I area. 3. The condition or situatlicn of the propertly concerned is not of so general or recurring as tc make reasonably practicable the formulation of a general regulatlior tic be adopted as an arrendmentl to the ordinarce. 4. The grarting of the variance doesi not result) in a use that is otherwise permitted on such property or a change in tlhe 2cning classification of the propertly. 5. The relief or remedy sought by the variance is not available through a special exception or the process for mediation of zonirgorcinance. The Applicant), Mr. William Meier IV, came forward tic speak. Mr. Meier roted with the currErt setbacks the property is useless. Mr. Meier stated he mets with Mr. CHEran anc inquirec as to what) his next) strep would be. Mr. Cheran irformed hirr that he could appear before the 13o2rc arc ask for a va ria r ce fo r setba c ks. Chairman Lown•an askec foranyene tic come forward tic speak for or in oppositiior. DISCUSSION No discussion. Mr. Carpentier mace a motion tic approve Variance #C4-19 William G. Meier IV and Mr. 5ccttl seconded, the vote was uranimous. IV r. Cherar presented Variance #05-15 Rebertl Byers and Linda Byers recuestling a 37 foot right side yard variance to the recuired 9C foot) right) sicE setback resulting it a 13 foot right lice setback for an addition. TIME property is locatlec at 2155 Serseny Rcad and is identified with Property Idertiification Number 65-A-2.613 in the Red Buc magistlErial distlrictl. The adjoiring prcpertlies tlo the Frederick Count Board of Zoning Appeals Aage 1667 north and east) are RP (Residential Performance) Zoring Dlistrictl and to the south and wesit are RA (Rural Areas) Zoring Dlisitlrictl. Mr. Cherar roted the reason for the variance is the property is 1.5 acres it size anc due to Exceptional narrowressi of the parcel and an addition to the existing structure cannot be built with the currert RA (Rural Areas) coning District) sietback rEquirementls. This property is part of the Braithwaite Subdivision creatlec it 1S4C. The sietback associated with tlHEse parcels under the A-2 Zonirg District). The Courty adopted zonirg in 1567. The hisitlorical zoning map showsi this propertly was zoned A-2 (Agricultural General) in 1967. The propertly setlbackl lires at the adoption of the zoning ordinarce were 35 feet) for the front) and 15 feet for the side yards. The ordinance changed and was amerced it 1989 to change the A-2 Zoring District to the current) RA �Rura Areasi) Zoning Distlrictl. On FEb'ruary 28, 2007, the Board of Supervisors amended the ordirarce for the RA Zonirg District. THE current) setbacks for this propertly isi 60 feet) to the fronts, 50 feet tlo the rear, 50 feet) or the left) siidE, arc 50 feeti on the right side. Mr. Cheran noted this variance is for an additlior because tIhErE is an Existing dwelling on the propertly. THe Board might consider tshatl the applicant) may have the abilitsy to add a second story to the existing structure The property is or a drainfield. The Code of Virginia 15.2-2305 (2) and the Code of Frederick Ccurty 165-101.2, stlatlesi that ro variance shall be granted unlesstlhe application can rreetlthe fcllowirg requirements. 1. The property interest for which the variance is beirg requested was acquired in gcod faith. 2. TlHe grantsirg ofthe variance will not be a substantial detlrimErt tic ad;oining propErty or rearby properties it the proximity of thatlgEographical area. 3. THE condition or situation of the property concerned isi note of sic general or recurring as tlo maWe reasorably practicable the fcrmulatsion cf a genEral regulation to be adoptled as an amendment tc the ordinance. 4. The grantsirg of the variarce does rot result) in a use that) is otherwise permitted cr such property or a charge in the zoning classificatlicr of the prcperty. 5. The relief or remedy sought by the variarce is rot available through a special exceptsior or the process for modification of a 2cning ordinance. Mr. MichaEl Arte, of Pennori Associates, is representing tlhE Mr, and Mrs. Byers. The house w25i built) it 1975 and is approximately 1,100 sq ft. and has two bedrooms. The family members tshatl live at this address are Mr. & Mrs. Byersi, their doughtler and husband and two children. The hcuse was not corsitlructed so a sieconc stcry could be putt on. There is a small room on the back of the hcuse and it doesn't) have a foundation. The house is 20 feet frcm the left side cf property line and on the right) sice is the Harvest Commurities Properties which is RP and the setbacW allows you to build a structure up to 10 feet. THE frortt cf the house isi 7 feet from the exisitting property line and the bocW Frederick Count Board of 2loning Appeals Page 1668 Of the house unab a to builc because of the exisitling drairfield. THE Byers are recuesitirg to add a 30 foot adcitior to the slide oftlhe house. Mr. Shirley asikec the cuestion what is the purpcse of the addittior? Mr. Ariz replied becroc i. Mr. Shirley asked will the crairfield work with tthe adcittion. Mr. Ariz replied yes. Mr. Carpenter asked Hcw many bedrooms are in the existing hcuse now. Two bedrooms row replied Mr. Artz. Mr. Carpenter clarified that this house is going from a tlwc bedroom to a tlhree bed rec m si, Chairman Lowman opered the flccr to any cre in favcr of this applicztt'on . Nc ore came forward. Chairman Lcwman OPE red the floor toaryone cpposiirgthisapplication, Stuart! Butler with Harvest) Communites came forward. His property is adjacent to Mr. Mrs. Byers prcperty, He is not opposing this application. Mr. Butler is making sure that the applicort is aware that the adjacent) property is zoned Resiicertial Rerformance (RR) and will be a siubdivisior of 13 single family lots. There is also a roar plan it place that will rur parallel between the properties. Mr. Butler hoc concerrsi as to the height of the addition and should there be a buffer put in place. Mr. Shirley hoc a question for Mr. Butler on the future subdivisior. Will your subdivision be insttollirg fences? Mr. Butler resipended I am nett sure at this time but that) is siomething we will tthirk about when we startttc develcp, DISCUSSION Members of the Board askec Mr, Ariz a few cluesittions. Is it a single story or tiwc sitory house? Mr. Art's roted a single stcry house. Does the existing house have a crawl space cr fcundottien? Mr. Art's noted a crawl space. llhe new addition will Have a crawl space as well. Mr. Madagan made a mction tic approve Variance #C5-15 of Robert and Linda Byers and was secorded by Mr, McDonald the votte wase unanimous. Mr. Scott mace a motion arc Mr. Carpenter seccrded the motion to adjourn the meeting. There being no further business the meeting aejeurned at 4 35 p.m. Respectfully submitted, Z- , 2X.'i Eric F. Lowman. Chairman C Pamala Deeter, Secretary Flrederick Count Hcard of 2loning Appeals Page 1669