BZA 09-15-15 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
September 15, 2015
3:30 p.m. CALL TO ORDER
1) Determination of a Quorum
2) August 18, 2015 Meeting Minutes
PUBLIC MEETING
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
MINUTES FOR
THE
AUGUST 18, 2015
BZA MEETING
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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 August 18, 2015.
PRESENT: Eric Lowman, Chairman, Red Bud District; Bruce Carpenter, Vice Chairman,
Gainesboro District; Jeremy McDonald, Back Creek District; Reginald Shirley III, Opequon
District; Kevin Scott, Shawnee District; and 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 3:32 p.m. and was determined there was a quorum.
Chairman Lowman inquired if there are any applications pending for the month of September.
Mr. Cheran responded no applications have been received at this time but the cut-off date is
Friday, August 21, 2015.
On a motion made by Mr. Carpenter and seconded by Mr. Shirley, the minutes for July 22, 2 015
meeting were unanimously approved as presented.
Chairman Lowman recused himself from the next item because of personal issues.
PUBLIC HEARING
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.
Mr. Cheran presented the staff report. The applicant is appealing the decision of the Zoning
Administrator in the administration of the Frederick County Zoning Ordinance. The reason for
the appeal is the applicant is appealing the decision of Zoning Administrator as to the land uses
within the M1 (Light Industrial) Zoning District.
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The property is located at 291 Independence Drive and is zoned M1 (Light Industrial) Zoning
District. The two businesses that occupy the 291 Independence Drive address are FASST a
fitness center/gym and Winchester Soccer Academy which are not allowed in the M1 Zoning
District according to the Frederick County Zoning Ordinance.
Frederick County has five (5) districts of classification and each district allows certain types of
uses. Frederick County uses the Standard Industrial Classification Code (SIC) to determine the
types of uses that are allowed in the districts. Fitness centers/gyms are classified as SIC 79
Amusement and Recreation Service operated indoor. This use is permitted within the B -2
(General Business) and B-3 (Industrial Transition) Zoning Districts. The applicant received a
notice of violation and the applicant came forward to appeal the decision of the Zoning
Administrator.
Mr. Cheran gave background information that a few years ago the Board of Supervisors was
asked by property owners and citizens to look at using some of the warehousing area for
different uses. The Board of Supervisors directed the Planning Department (Staff) to review
and study this request. Staff presented the request to Committee’s and Planning Commission
and presented in outline form to the Board of Supervisors and was turned down. The Board of
Supervisors wanted to keep this area industrial area.
Staff is requesting the Board 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 M1
Zoning District.
Mr. Carpenter posed a question; did this property have a Conditional Use Permit? Mr. Cheran
replied no.
Mr. Cheran replied in the past, East Coast Hobbies rented the space and a business license was
issued by the Commissioner of Revenue without securing zoning approval for an indoor remote
car track. A Board of Supervisor and Planning Commissioner asked Mr. Cheran and staff to visit
the site and it was determined since the business license had been issued and East Coast
Hobbies leased the warehouse for five years, the County would allow East Coast Hobbies to
remain in the building. Should East Coast Hobbies leave the next tenants would need to be a
use that is allowed in the M1 Zoning District. East Coast Hobbies left the warehouse and the
next tenants moved in and without a County business license being approved for this address.
Vice-Chairman Carpenter asked is there anyone here who wishes to speak for or against this
application.
Dorothy Vance came forward to speak for the application. Ms. Vance gave some background
information that the land is her Father’s in a trust which her brother will be the owner soon.
James Loveless Jr., is the applicant. When the previous tenants moved out, we were unaware
that the next tenants would need to be an allowed use for the M1 District since the property
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was in Mr. Loveless Sr. name. We leased the property to Mr. Douglas and his business is
growing and Mr. Douglas has found a place but will not be able to move in until August of 2016.
I am asking to let Mr. Douglas business stay temporarily until August 2016. Ms. Vance is aware
of the correct zoning of the property and the next time this is leased or advertised this property
is in the M1 Zoning District and the only uses allowed would be the M1 Zoning District. Ms.
Vance stated her father updated the parking when East Coast Hobbies were tenants.
Mr. Carpenter asked is the activities indoors or outdoors. Ms. Vance replied indoors and we
have a 6,000 square foot area.
Mr. Robert Douglas from Winchester Soccer Academy came forward. Mr. Douglas said the
business moved in July 2014 and within 15 days after cleaning up from previous tenant his
business was up and running. Mr. Douglas said his business has grown. Mr. Douglas is just
looking to stay until next August 2016 and they have located another property to move to.
Ms. Angela Orsini, noted she is with FASST Sports Performance Training and sub-leased an area
from Winchester Soccer Academy. FASST Sports trains individuals or small groups. The
company has no memberships and the hours of operation are 4:00 p.m. to 9:00 p.m. Since we
train individuals or small groups, we have very little traffic and are not looking to grow. We
would like to finish our lease out and then relocate.
Mr. Pullen from Virginia Apple Storage came forward to speak since the business is neighboring
land to the property of the Mr. Loveless. Mr. Pullen didn’t have concerns about any impact on
the Virginia Apple Storage business or any other business in the industrial park. Mr. Pullen
suggested to the Board to let the Winchester Soccer Academy stay until August 2016.
No one came forward to speak against Mr. Loveless.
Mr. McDonald asked who gave the approval for the East Coast Hobbies. Mr. Cheran noted that
tenants were improperly issued a business license by the Commissioner of the Revenue Office
without securing zoning approval.
Mr. Cheran pointed out the Landowner should know what his property is zoned, but also if the
tenants had inquired about the location when filling out a business license the County would
have said it was not an allowed use at that location. The tenants do not have a business license
for that address. After the tenants had been cited, a business license did appear in the office
and has not been signed off.
DISCUSSION
Mr. Scott asked for a recap of why East Coast Hobbies was allowed in the District. Mr. Cheran
recapped as to how the business was allowed to stay in that District. Upon an approval of a
business license and an evaluation it was determined that East Coast Hobbies could stay until
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the 5 year lease run out. If anything changed or new tenants, was to lease the building they
would have to go by the M1 Zoning District.
Mr. Scott wanted to go on record that he has relations with the Winchester Soccer Academy
and the County Attorney stated that Mr. Scott didn’t need to recuse himself.
Mr. Scott asked Mr. Cheran has this been addressed before the Planning Commission and the
Board of Supervisors.
Mr. Cheran replied yes. The Board of Supervisors directed Planning and Zoning a few years ago
to do a study in regards to allowing other business go into warehousing. This information was
discussed at the Board of Supervisor meeting and was denied.
Mr. Scott wanted to know why the Board of Supervisors made that decision.
Mr. Cheran replied some of the reasons was mixing of traffic and industrial space being taken
up.
Mr. Cheran explained that East Coast Hobbies had a business license approved and Winchester
Soccer Academy doesn’t have a business license approved for that address. The FASST Sports
was cited for a violation. Mr. Cheran noted that the Winchester Soccer Academy has a few
options to appeal to the BZA for a decision, ask for the property to be rezoned, to leave the
location, or take a chance in General District Court.
Mr. McDonald inquired about the violation. Mr. Cheran stated that the violation was on a
compliant basis and that an illegal business was being run out of this location.
Mr. Carpenter called upon Mr. Douglas to ask him a question. Are you aware you needed a
business license? Why would you make an investment before getting a business license
approved?
Mr. Douglas responded by saying he has a business license but it is not for this address. The
license is based out of his home.
Mr. Shirley wanted clarification; if Mr. Loveless had assumed the lease from the East Coast
Hobbies would we be here today. Mr. Cheran replied n o.
Mr. Shirley clarified with Mr. Cheran; if we vote in favor to let Winchester Soccer Academy stay
in this location would this change zoning for all property zoned M1 District. Mr. Cheran
responded no. This appeal decision is just for this property.
Mr. Carpenter needed clarification on what rules and what parking was put into place for the
East Coast Hobbies. Mr. Cheran stated that a site plan was required and the County
implemented parking and paving. The Winchester Soccer Academy would be creating more
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traffic than the East Coast Hobbies and the parking requirement is different for indoor
recreation.
Mr. Scott suggested Winchester Soccer Academy to go into a sharing parking agreement. Mr.
Cheran pointed out that is ingress/egress and Winchester Soccer Academy would then need to
put in sidewalks so it would meet the code and that would be costly.
Mr. McDonald posed a question how many customers did East Coast hobbies have at one time?
Mr. Cheran replied under 30 people. Mr. McDonald noted that t he Soccer teams are usually
small in size. Mr. Cheran reminded the Board that there are two businesses being run out of
this location.
Mr. Shirley made a motion to table for 30 days the Appeal Application #03-15 of James W.
Loveless Jr., in order for staff to consult with the County Attorney as time limitations for BZA
action and the placement of conditions on the ultimate BZA action and was seconded by Mr.
Scott and the vote was unanimous.
Mr. Carpenter made a motion and Mr. Scott seconded the motion to adjourn meeting.
There being no further business the meeting adjourned at 4:25 p.m.
Respectfully submitted,
______________________
Eric F. Lowman, Chairman
_______________________
Pamala S. Deeter, Secretary
APPEAL APPLICATION #03 -15
OF
JAMES W. LOVELESS, JR.
APPEAL APPLICATION #03-15
JAMES W. LOVELESS, JR. APPLICANT
Staff Report for the Board of Zoning Appeals
Prepared: September 1, 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 MEETING
Reviewed Action
August 18, 2015 Public Hearing Held; Action Tabled 30 days
September 15, 2015 Public Meeting; Action pending
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 permitted within the M-1 (Light Industrial) Zoning District.
Question for BZA: The question to the BZA is whether or not indoor recreation (SIC 79) is a
permitted use in the M1 Zoning District. The zoning ordinance lists the permitted uses, and SIC 79
is not included as permitted use.
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.
September 1, 2015
Page 2
STAFF COMMENTS:
The property located at 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 and is therefore
not a permitted use in the M1 Zoning District. The Applicant contends that the use is permitted in
the M-1 Zoning District. For this use to be allowed in the M-1 Zoning District the use must be
identified under the list of permitted uses within the zoning district. Attached is Section 165-606.02
which clearly lists the allowed M-1 uses. This property being used as a fitness center/gym is in
violation of the Frederick County Zoning Ordinance.
The question to the BZA is whether or not indoor recreation (SIC 79) is a permitted use in the M1
Zoning District. The zoning ordinance lists the permitted uses, and SIC 79 is not included and
therefore is not a permitted use.
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.
STAFF CONCLUSION FOR THE SEPTEMBER 15, 2015 MEETING: The Applicant during
the public hearing stated that the County allowed the prior tenant at this location to operate as a
business known as East Coast Hobbies remote car track. This use was and is classified as SIC-79
and is not allowed in the M-1 District. The tenant was improperly issued a business license by the
Commissioner of the Revenue Office without a securing zoning approval. The County worked with
East Coast Hobbies to allow this use to occur at this property with the understanding that once East
Coast Hobbies vacated the site, the use would no longer be permitted on the property. The next
tenant (FASST Training) failed to apply for and secure approval of a business license. However,
FASST Training did apply for a business license after the property was cited for an illegal business.
The business license was reviewed by staff and denied for a fitness center/gym, as the use is not
permitted within the M1 Zoning District. Staff would note the Winchester Soccer Academy does not
have a business license to operate from this property.
Appeal Application #03-15 – James W. Loveless, Jr.
September 1, 2015
Page 3
On August 18, 2015, the BZA tabled action for 30 days to allow staff to consult with the County
Attorney, as time limitations for BZA action and the placement of conditions on the ultimate BZA
action. The County Attorney advised that the BZA needed to take action within 60 days of the first
hearing date (August 18, 2015) and that it was inappropriate to place conditions on a BZA action.
Therefore, the BZA must take action no later than October 20, 2015, and the BZA’s action is to
either affirm or overrule the decision of the Zoning Administrator.
Therefore, 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.
The question to the BZA is whether or not indoor recreation (SIC 79) is a permitted use in the
M1 Zoning District. The zoning ordinance lists the permitted uses, and SIC 79 is not included
as a permitted use.
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