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BZA 12-19-17 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia December 19, 2017 3:30 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of November 21, 2017 3) Election of Officers and Adoption of Bylaws PUBLIC HEARING 4) Variance Request #05-17 of Maria Delbosario Hernandez Bautista, submitted by E. Lynn Beightol, III for a 25-foot left side yard variance to a required 50-foot left side yard setback will result in a 25-foot left side yard setback, a 75-foot right side yard variance to a required 100-foot right side yard setback will result in a 25-foot right side yard setback. This property is located at 1549 Front Royal Pike, Winchester and is identified with Property Identification Number 76-A-10 in the Shawnee Magisterial District. Other Adjourn MINUTES FOR THE NOVEMBER 21, 2017 BZA MEETING Frederick County Board of Zoning Appeals P a g e | 1724 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 November 21, 2017. PRESENT: Eric Lowman, Chairman, Red Bud District; Kevin Scott, Vice-Chairman, Shawnee District; Reginald Shirley III, Opequon District; Dwight Shenk, Gainesboro District; John Cline, Stonewall District; Dudley Rinker, Back Creek 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 by Chairman Lowman at 3:30 p.m. and he determined there is a quorum. Chairman Lowman led the Pledge of Allegiance. Chairman Lowman asked if there are any application for December. Mr. Cheran stated, there would be a meeting as we have one application. On a motion made by Mr. Cline and seconded by Mr. Shenk the meeting minutes for October 17, 2017 were unanimously approved. PUBLIC HEARING Chairman Lowman read Variance Request #03-17 of David and Jaime Jordan, submitted for a 19- foot front yard variance to a required 60-foot front setback which will result in a 41-foot front setback, and a 4-foot right side yard variance to a required 100-foot right side yard setback which will result in a 96-foot right side yard setback. This property is located at 516 North Drive, Winchester, and is identified with Property Identification Number 30 -6-7 in the Gainesboro Magisterial District. Frederick County Board of Zoning Appeals P a g e | 1724 Mr. Cheran came forward to present Variance Request #03-17 David and Jaime Jordan. Mr. Cheran made the correction for record that this variance is only for a front yard and not for a right- side variance. Staff continued by saying the property is in the Gainesboro District and is zoned RA (Rural Areas) and is vacant. The adjoining properties are residential. Mr. Cheran stated the Applicant is requesting for a 19-foot front yard variance to a required 60-foot front setback which will result in a 41-foot front setback. The Applicant wants to construct a single-family dwelling. Mr. Cheran presented a map of the property. Staff pointed out the property is wooded and has steep slopes. Staff continued by saying that is why the Applicant is asking for a variance because the Applicant cannot meet the current setback of the RA District. Mr. Cheran stated that in 1967 Frederick County adopted zoning. The Frederick County historical map shows this property was zoned A-1 (Agricultural Limited). The property setback lines at the adoption of the zoning ordinance were 35-feet front, 15-feet for sides and 50-feet for the rear. The ordinance was amended in 1989 to change the A-1 Zoning District to the current RA Zoning District. The County amended the RA Zoning District setbacks on February 28, 2007. Today the current setbacks for the property are 60-feet to the front, 100-feet to the rear, and 100-feet on the sides. When this subdivision was created no building restriction lines were assigned, so that meant the Applicant would need to follow today’s setbacks for the RA District. Mr. Cheran reiterated the Applicant’s request for a variance. Mr. Cheran concluded by stating the Code of Virginia 15.2-2309 (2) and the Code of Frederick 165-1001.2 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. Staff acknowledged this proposed variance meets the criteria of The Code of Virginia 15.2-309 (2) and the Code of Frederick County. Mr. Cheran said this variance may be justified. Frederick County Board of Zoning Appeals P a g e | 1724 Chairman Lowman opened the floor to questions for Mr. Cheran. Chairman Lowman opened the floor to anyone in favor of the variance. The Applicant, Mr. David Jordan came forward. Mr. Jordan stated if he moved the house back then the driveway would be steep and could present problems with getting out in the winter time. Chairman Lowman opened the floor to questions for Mr. Jordan. Mr. Shirley verified with the Applicant to make sure the Applicant doesn’t need a right-side variance. Mr. Jordan said he doesn’t need a right-side variance just a front variance. Chairman Lowman opened the floor to anyone who opposed. No one came forward. Public Hearing Closed Discussion Mr. Shenk recused himself from the vote due to personal reason. Discussion from Board. Mr. Madagan looked at the property and didn’t see a reason as to why the house couldn’t be moved closer to the road. Chairman Lowman is familiar with the area and agrees the topographic plays a big role in placing this house. Mr. Cline made a motion to approve Variance Request #03-17 of David and Jaime Jordan and Mr. Rinker seconded the motion which was approved unanimously. PUBLIC HEARING Chairman Lowman read the next Variance #04-17 which John Powell, submitted for a 35-foot left side yard variance to a required 60-foot left side yard setback will result in a 25-foot left side yard. This property is located at Route 522 North, turn left onto Route 739 (Apple Pie Ridge Road), proceed to Route 650 (Upper Ridge Road), property is on the right side and is identified with Property Identification Number 42-20-6 in the Gainesboro Magisterial District. Mr. Cheran came forward to present Variance #04-17 of John Powell. Staff continued by saying this is for a front yard variance for an accessory structure. The location of the drainfield and reserve prevents building of the accessory structure in another location other than next to a private easement. Mr. Cheran presented a map of the property and this parcel was included in a subdivision that was created in 1991. In the RA District, the setback for an accessory structure off of a private easement was 60 feet from the right-of-way and 15 feet from the property lines. The Board of Supervisors Frederick County Board of Zoning Appeals P a g e | 1724 amended the setbacks for accessory structure in the RA District on May 27, 2017. The current setbacks are 45 feet off a private right-of-way. If granted, the building setback for this accessory structure would be 10 feet from the private right-of-way and 15 feet sides and rear. The adjoining property owners have submitted letters of support for the variance. Mr. Cheran concluded by reiterating The Code of Virginia 15.2 -2309 (2) and Code of Frederick 165-1001.2 requirement criteria. The proposed variance meets the two codes and appears to be consistent with character of the District. This variance request may be justified. Chairman Lowman opened the floor for anyone in favor to come and speak. Mr. Ron Shickle came forward to speak on behalf of the variance. Mr. Shickle lives across the street from Mr. Powell. Mr. Shickle stated this is a very good neighbor and is in favor of the variance. Chairman Lowman asked if there are any questions for the Applicant, Mr. John Powell. Mr. Powell came forward. Chairman Lowman verified with Mr. Powell that he wasn’t moving his plumbing business to this structure. Mr. Powell stated this structure is for his personal use. Chairman Lowman asked if anyone in opposition to come forward and speak. Closed Public Hearing Discussion Mr. Shenk commented that he didn’t think the structure would be visible from the street. Chairman Lowman and Mr. Madagan agreed that the structure would be hard to see. Mr. Madagan commented that the Applicant’s intention is to build a structure like his garage. Chairman Lowman commented that we do have letters of support for the variance. Mr. Shenk made a motion to approve Variance Request #04-17 of John Powell and Mr. Scott seconded the motion which was approved unanimously. Mr. Cheran noted that the Bylaws would be in the next agenda. Mr. Shenk made a motion to adjourn the meeting at 3:45 p.m. and Mr. Scott seconded the motion. ____________________ Eric Lowman, Chairman ____________________ Pamala Deeter, Secretary ELECTION OF OFFICERS MEETING SCHEDULE ADOPTION OF BY-LAWS - 1 - FREDERICK COUNTY BOARD OF ZONING APPEALS BY-LAWS (Proposed December 19, 2017) ARTICLE I - AUTHORIZATION 1-1 The Frederick County Board of Zoning Appeals (BZA) is established by and in conformance with Chapter 165 of the Code of Frederick County, and in accord with the provisions of Section 15.2-2308 of the Code of Virginia (1950), as amended. 1-2 The official name of this body shall be the Frederick County Board of Zoning Appeals, hereinafter referred to as the BZA. ARTICLE II - PURPOSE 2-1 The primary purpose of the BZA is to hear and decide appeals, variances, and interpretations of Chapter 165 of the Code of Frederick County, in accordance with the provisions of Section 15.2-2308 Code of Virginia (1950), as amended. ARTICLE III - MEMBERSHIP 3-1 The membership of the BZA shall be open to residents of Frederick County, recommended by Frederick County Board of Supervisors, and appointed by the Circuit Court for the locality, as prescribed by Section 15.2-2308 Code of Virginia, (1950) as amended. The membership shall be no more than seven (7) members; or less than five (5) members. Terms of office shall be five (5) years. 3-2 Members shall notify the Chairman via the Zoning Administrator twenty-four (24) hours prior to the meeting, if a member is going to be absent or must abstain, as per 15.3- 2308 Code of Virginia, (1950) as amended. ARTICLE IV - OFFICERS 4-1 Officers of the BZA shall consist of a Chairman, Vice-Chairman and Secretary. The Chairman and Vice-Chairman must be voting members of the BZA. The Secretary may be a County employee. 4-2 The selection of officers shall be made by the voting members of the BZA at the first meeting of the calendar year. 4-2-1 Nomination of officers shall be made by the voting members of the BZA at the first meeting of the calendar year. Elections of officers shall follow immediately. A candidate receiving a majority vote of the entire voting membership shall be declared elected. - 2 - 4-3 Duties 4-3-1 The Chairman shall: 4-3-1-1 Preside at meetings. 4-3-1-2 Rule on procedural questions. 4-3-1-3 Certify official documents involving the authority of the BZA. 4-3-1-4 Certify minutes as true and correct copies. 4-3-2 The Vice-Chairman shall: 4-3-2-1 Assume the full powers of the Chairman in the absence or inability of the chairman to act. 4-3-3 The Secretary shall: 4-3-3-1 Ensure that attendance is recorded at all meetings. 4-3-3-2 Ensure that the minutes of all BZA meetings are recorded. 4-3-3-3 Notify members of all meetings. 4-3-3-4 Prepare agendas for all meetings. 4-3-3-5 Maintain files of all official BZA records and reports. Official records and reports may be purged in accordance with applicable state codes. 4-3-3-6 Give notice of all BZA meetings, public hearings. 4-3-3-7 Provide to the Circuit Court reports and recommendations of the BZA. 4-3-3-8 Attend to the correspondence necessary for the execution of the duties and functions of the BZA. 4-4 Term of Office 4-4-1 Officers shall be elected for a one-year term or until a successor takes office. Vacancies shall be filled for an unexpired term by a majority vote of the BZA. In such cases, the newly elected officer shall serve only until the end of the calendar year or until a successor takes office. - 3 - ARTICLE V- MEETINGS 5-1 The BZA regular meetings will be held on the third Tuesday of each month at 3:30 PM in the Board of Supervisors Meeting Room of 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 PM in the Board of Supervisors Meeting Room, unless all applicants 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. 5-2 Notice of all meetings shall be sent by the Secretary with an agenda at least five (5) days before the meeting. 5-3 All meetings of the BZA shall be open to the public except for Closed Sessions held in accordance with the provision specified under Section 2.1-344(A) of the Code of Virginia, (1950), as amended. ARTICLE VI - VOTING 6-1 A majority of voting members shall constitute a quorum. No action shall be taken or motion made unless a quorum is present. 6-2 No action of the BZA shall be valid unless authorized by a majority vote of members. ARTICLE VII - OPERATING RULES 7-1 Order of Business 7-1-1 Call to Order 7-1-2 Pledge of Allegiance 7-1-3 Consideration of Minutes 7-1-4 Public Hearing 7-1-5 Other 7-1-6 Adjournment - 4 - 7-2 Minutes 7-2-1 The BZA shall keep minutes of each meeting. The Chairman and Secretary shall sign all minutes following approval by the BZA certifying that the minutes are true and correct. Minutes made available to the public prior to formal approval by the BZA shall be clearly identified as a draft version of the meeting. 7-3 Procedures 7-3-1 Parliamentary procedure in the BZA meetings shall be governed by Robert's Rules of Order, Simplified and Applied, except where otherwise specified in these procedures. 7-3-2 When a motion has been made and defeated, additional, different motions may be made concerning the item under consideration. 7-3-3 Business items on the agenda shall be considered using the following procedures: 7-3-3-1 Report by County Staff 7-3-3-2 Presentation by Applicant 7-3-3-3 Citizen Comment 7-3-3-4 Rebuttal by Applicant 7-3-3-5 Discussion by BZA 7-3-3-6 Motion and Action by BZA 7-3-4 Public comment shall be allowed in all cases required by the Code of Virginia, (1950), as amended. 7-3-5 The BZA members may ask questions of clarification and information after the staff report, applicant presentation and citizen comment. 7-3-6 Petitions, displays, documents or correspondence presented at a meeting may be made part of the official record of the meeting by motion of the BZA and are to be kept on file by the Secretary. Such items need not be made part of the published minutes. 7-3-7 Public Hearings 7-3-7-1 The BZA shall hold public hearings on all items as required by the Code of Virginia, (1950), as amended. Such public hearing shall be advertised and notifications provided as required by the Code of Virginia, (1950), as amended. - 5 - 7-3-7-2 The Chairman may establish special rules for any public hearing at the beginning of said hearing. These rules may include limitations on the time of staff report, applicant presentation and citizen comment. 7-3-8 Tabling 7-3-8-1 The BZA shall have the authority to table agenda items if any one of the following situations occurs: A) The agenda item does not meet the requirements of the Code of Virginia, (1950), as amended. B) The agenda item does not meet the requirements of the Code of Frederick County. C) Insufficient information has been provided for the agenda item. D) Issues or concerns that arise during formal discussion of the agenda item warrant additional information or study. E) The applicant provides the Frederick County Zoning Administrator with a written request to table the agenda item. F) The Frederick County Zoning Administrator is advised of an emergency situation that prevents attendance by the applicant. G) The applicant fails to appear at the meeting in which the application has been advertised to be acted upon. ARTICLE VIII - AMENDMENTS 8-1 These by-laws may be amended by a majority vote of the entire voting membership after thirty days prior notice. 8-2 BZA shall conduct an annual review of these by-laws to ensure their accuracy. All amendments to these by-laws shall be considered by the BZA in December of each calendar year. The BZA shall adopt their by-laws during the first meeting of each calendar year. VARIANCE REQUEST #05-17 OF MARIA DELBOSARIO HERNANDEZ BAUTISTA VARIANCE APPLICATION #05-17 MARIA DELBOSARIO HERNANDEZ BAUTISTA Staff Report for the Board of Zoning Appeals Prepared: December 8, 2017 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: December 19, 2017 Public Hearing; Action Pending LOCATION: The property is located at 1549 Front Royal Pike, Winchester, Virginia. MAGISTERIAL DISTRICT: Shawnee PROPERTY ID NUMBER: 76-A-10 PROPERTY ZONING & USE: Zoned: RA Land Use: Vacant ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) Use: Residential South: RA (Rural Areas) Use: Residential/Farm East: RA (Rural Areas) Use: Residential/Farm West: RA (Rural Areas) Use: Residential VARIANCE REQUESTED: The Applicant is requesting a 25-foot left side yard variance to a required 50-foot left side setback resulting in a 25-foot left side setback, and a 75-foot right side yard variance to a required 100-foot right side setback resulting in a 25-foot right side setback. REASON FOR VARIANCE: The property was created in 1940 with no assigned Building Restriction Lines (BRL). The property is narrow in width and cannot meet the current Building Restriction Lines (BRL) of the RA (Rural Areas) Zoning District. Variance #05-17 – Maria Delbosario Hernandez Bautista Page 2 December 8, 2017 STAFF COMMENTS: This property was created 1940 with no assigned Building Restriction Lines (BRL). Frederick County adopted zoning in 1967. The Frederick County historical zoning map shows this property was zoned A-2 (Agricultural General) in 1967. The property setback lines at the adoption of the zoning ordinance were 35-feet for the front, 15-feet for the side yards and 35-feet for the rear. Frederick County amended its ordinance in 1989 to change the A-2 Zoning District to the current RA (Rural Areas) Zoning District. The Frederick County Board of Supervisors amended the setbacks for the RA Zoning District on February 28, 2007, making the current setbacks for this property 60-feet to the front, 100-feet to the rear, 50-feet left side, and 100-feet on the right side. The Applicant is requesting a 25-foot variance on the left side setback from the required 50-foot left side yard setback resulting in a 25-foot left side yard setback, and a 75-foot variance on right side setback from the required 100-foot right side yard setback resulting in a 25-foot right side setback. This property can meet the current RA front Building Restriction Line (BRL) of 60 feet and the current rear setback of 100-feet. Should this variance be granted, the building setbacks for this property would be 60-feet in the front, 100-feet in the rear, and 25-feet left side and 25-feet right side. STAFF CONCLUSIONS FOR THE DECEMBER 19, 2017 MEETING: The Code of Virginia 15.2-2309 (2) and Code of Frederick 165-1001.2, 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. This proposed variance appears to be consistent with the character of the District; and meets the intent of The Code of Virginia 15.2309 (2) and the Code of Frederick County. This request from current setbacks of the RA (Rural Areas) Zoning District may be justified.