BZA 04-17-18 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
April 17, 2018
3:30 p.m. CALL TO ORDER
1) Determination of a Quorum
2) Minutes of March 27, 2018
PUBLIC HEARING
3) Appeal Application #03-18 of Rockwood 72, LLC., who is appealing the decision of the
Zoning Administrator as to Chapter 165 Zoning, Part 165-502.04. A. allowed use in R5
(Residential Recreational Community) Zoning District of the Frederick County Zoning
Ordinance. The subject property is located Route 50 W turn onto Back Mountain Road
then right onto Rosenberger Lane, left on Timber Ridge Trail proceed to Rockwood Trail,
and is identified with Property Identification Number 49B02-123-72 in the Back Creek
Magisterial District.
4) Appeal Application #04-18 of 750 Remington, LLC., who is appealing the decision of
the Zoning Administrator as to Chapter 165 Zoning, Part 165-502.04. A. allowed use in R5
(Residential Recreational Community) Zoning District of the Frederick County Zoning
Ordinance. The subject property is located Route 50 W turn onto Back Mountain Road
then right on Mountain Falls Boulevard proceed to Cardinal property located on Remington
Drive, and is identified with Property Identification Number 58A08-E-18-16 in the Back
Creek Magisterial District.
Other
MINUTES FOR
THE
MARCH 27, 2018
BZA MEETING
DRAFT
Frederick County Board of Zoning Appeals 1734
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 March 27, 2018.
PRESENT: Eric Lowman, Chairman, Red Bud District; Kevin Scott, Vice-Chairman Shawnee
District; John Cline, Stonewall District; Reginald Shirley III, Opequon District; Dudley Rinker,
Back Creek Dwight Shenk, Gainesboro 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 applications for April. Mr. Cheran stated yes, there will
be a meeting on April 17, 2018.
PUBLIC HEARING
Chairman Lowman read the request of the Applicant for a Variance Request #05-18 of Wright
Renovations, Inc., submitted by Michael Artz, for a 29.3-foot left side yard variance to a required
50-foot left side yard setback will result in a 20.7-foot left side yard setback, a 35.4-foot right side
yard variance to a required 50-foot right side yard setback will result in a 14.6-foot right side yard
setback for a single- family dwelling. This property is located south of Winchester on the east side
of Front Royal Pike (Route 522), 0.05 miles south of Vine Street and is identified with Property
Identification Number 64D-4-4 in the Shawnee Magisterial District.
Mr. Cheran came forward to present staff report. The property is zoned RA (Rural Areas) and the
land is vacant. Mr. Cheran stated on the plat this property was created in 1959 and no Building
Restriction Line (BRL) was assigned to the side and rear of the property. Mr. Cheran noted that
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Frederick County Board of Zoning Appeals 1735
the Applicant would need to meet the current RA (Rural Areas) setbacks. Mr. Cheran presented
the location map and the proposed dwelling layout.
Mr. Cheran stated that 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 and 15- feet for the
side yards and 50-feet 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, and 100-feet to both
sides.
Mr. Cheran reiterated what the Applicant is requesting a variance of 29.3-feet on the left side yard
from the current 50-foot setback resulting in a 20.7-foot setback. A 35.4-foot right side yard
variance from the current 50-foot setback resulting in a 14.6-foot setback. This variance, if granted,
would allow the construction of a single-family dwelling. It should be noted that the front setback
will be 75-feet as noted on the recorded plat and 100-feet rear.
Mr. Cheran stated 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.
Mr. Cheran noted that the Applicant has met 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.
Mr. Artz representing the Applicant came forward. Mr. Artz stated he had no additional
comments to add to Mr. Cheran presentation. Mr. Artz mentioned that he would answer any
questions regarding the Variance.
Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one
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Frederick County Board of Zoning Appeals 1736
came forward.
PUBLIC HEARING CLOSED
Chairman Lowman ask for any discussion. (none)
On a motion made by Vice-Chairman Scott to approved Variance Request #05-18 of Wright
Renovations, Inc. and Mr. Rinker seconded the motion which was approved unanimously.
PUBLIC HEARING
Chairman Lowman read the request of the Applicant for a Variance Request #06-18 of Wright
Renovations, Inc., submitted by Michael Artz, for a 24.7-foot left side yard variance to a required
50-foot left side yard setback will result in a 25.3-foot left side yard setback, a 40-foot right side
yard variance to a required 50-foot right side yard setback will result in a 10-foot right side yard
setback for a single- family dwelling. This property is located South of Winchester on the East
side of Front Royal Pike (Route 522), 0.05 miles south of Vine Street and is identified with
Property Identification Number 64D-4-2 in the Shawnee Magisterial District.
Mr. Cheran came forward to present staff report and location map. The property is zoned RA
(Rural Areas) and the land is vacant. Mr. Cheran noted this property is in the same vicinity as the
previous Variance also this lot was created in 1959 and no Building Restriction Line (BRL) was
assigned to the side and rear of the property and would need to meet the current setbacks.
Mr. Cheran stated 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 and 15-feet for the
side yards and 50-feet 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, and 100-feet to both
sides.
Mr. Cheran reiterated what the Applicant is requesting a variance of 24.7-feet on the left side yard
from the current 50-foot setback resulting in a 25.3-foot setback. A 40-foot right side yard variance
from the current 50-foot setback resulting in a 10-foot setback. This variance, if granted, would
allow the construction of a single-family dwelling. It should be noted that the front setback will be
75-feet as noted on the recorded plat and rear setback will be 100-feet.
Mr. Cheran quoted The Code of Virginia and Code of Frederick County.
Staff noted 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.
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Frederick County Board of Zoning Appeals 1737
Mr. Artz representing the Applicant came forward. Mr. Artz stated he had no additional comments
to add to Mr. Cheran presentation.
Vice-Chairman Scott posed a question as to why the placement of the house is more to the right
side of the property. Mr. Artz stated the left side of property is lower and would need to be
elevated. Vice-Chairman asked what the time frame is to build on this lot. Mr. Artz mentioned
within the next few months.
Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one
came forward.
PUBLIC HEARING CLOSED
Chairman Lowman ask for any discussion. (none)
On a motion made by Vice-Chairman Scott to approved Variance Request #06-18 of Wright
Renovations, Inc. and Mr. Shenk seconded the motion which was approved unanimously.
PUBLIC HEARING
Chairman Lowman read the request of the Applicant for a Variance Request #07-18 of Robin
Wales and Kathy Wales, submitted by Michael Artz, for a 10-foot rear yard variance to a required
25-foot rear yard setback will result in a 15-foot rear yard for a roof/deck. This property is located
at 156 McClure Way, Winchester, Virginia and is identified with Property Identification Number
64D-8-1-28 in the Shawnee Magisterial District.
Mr. Cheran came forward to present staff report and a location map. Staff noted there is a dwelling
on this property and the zoning is RP (Residential Performance). The dwelling is in a subdivision
called Red Fox Run which was created in 2000. Staff mentioned the structure is right on the 10
feet and 25-foot BRL when the house was constructed in 2001.
Mr. Cheran stated the primary setbacks for the properties within this subdivision are: 35-feet front,
10-feet sides, and 25-feet rear. The single-family dwelling located on this property was built in
2001. The Frederick County Board of Supervisors amended the setbacks for the RP Zoning District
on January 23, 2013, making the current primary setbacks for properties: 35-feet front, 25-feet
rear, and10-feet both sides for a deck/deck with roof. However, setbacks for RP properties with
unroofed decks, stoops, landings and similar features: 25-feet front, 5-feet sides, and 15-feet.
Mr. Cheran reiterated what the Applicant is requesting a 20-foot rear yard variance to the required
25-foot rear yard setback resulting in a rear setback of 15-feet. The Applicant is going to maintain
the current front and side setbacks as with the current foot print of the structure.
Mr. Cheran reviewed 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:
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Frederick County Board of Zoning Appeals 1738
6) The property interest for which the variance is being requested was acquired in good faith.
7) The granting of the variance will not be a substantial detriment to adjoining property or
nearby properties in the proximity of that geographical area.
8) 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.
9) 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.
10) The relief or remedy sought by the variance is not available throu gh a special exception or the
process for modification of a zoning ordinance.
Mr. Cheran conclude by saying 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 rear setback of the RP (Residential Performance) Zoning
District may be justified.
Mr. Artz representing the Applicant came forward. Mr. Artz mentioned that Mr. and Mrs. Wales
are here if you have direct questions. Mr. Artz suggestion to Mr. and Mrs. Wales to contact the
neighbors. The neighbor was willing to work with Mr. and Mrs. Wales but the bank that held the
note wasn’t willing to work with them.
Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one
came forward.
PUBLIC HEARING CLOSED
Chairman Lowman ask for any discussion or comments.
Mr. Madagan comment that this house backs up to a wooded riven and never be able to build
anything there. There is also a drainage swell.
Chairman Lowman and Vice-Chairman Scott agreed with Mr. Madagan comments.
On a motion made by Vice-Chairman Scott to approved Variance Request #07-18 of Robin
Wales and Kathy Wales and Mr. Cline seconded the motion which was approved unanimously.
PUBLIC HEARING
Chairman Lowman read the request of the Applicant for a Variance Request #08-18 of David A.
Hicks, submitted by Michael Artz, for an 18-foot left side yard variance to a required 50-foot left
side yard setback will result in a 32-foot left side yard setback, a 68-foot right side yard variance
to a required 100-foot right side yard setback will result in a 32-foot right side yard setback for a
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Frederick County Board of Zoning Appeals 1739
single-family dwelling. This property is located Route 522 north from Winchester to Marple Road
0.7 miles south on Marple Road and is identified with Property Identification Number 41-A-110
in the Gainesboro Magisterial District.
Mr. Cheran came forward and presented staff report and location map. Mr. Cheran proceed by
saying this one-acre lot was created in 1953 and is zoned RA (Rural Areas) and the land use is
residential. Mr. Cheran mentioned there is a mobile home on the property which will be removed
after the completion of the single-family dwelling.
Mr. Cheran states the 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 and 15-feet for the
side yards and 50-feet to 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 Bo ard
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, and 100-feet to both
sides.
Staff noted this property does not have Building Restriction Lines (BRL) assigned to it and would
need to meet the current RA (Rural Areas) setbacks. The Applicant is requesting a variance of 18-
feet on the left side yard from the current 50-foot setback resulting in a 33-foot setback. A 68-foot
right side yard variance from the current 100-foot setback resulting in a 32-foot setback. This
variance, if granted, would allow the construction of a single-family dwelling. It should be noted
that the new dwelling would be in conformance with the current front setback of 60-feet and rear
setback of 100-feet.
Staff continued b y quoting 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.
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Frederick County Board of Zoning Appeals 1740
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.
Mr. Cline asked if the trailer is occupied and can the applicant live in the trailer while construction
of the new dwelling. Mr. Cheran responded yes. The applicant has that option to live in trailer
while construction but before getting the final Certificate of Occupancy the trailer needs to be
removed.
Mr. Artz representing the Applicant came forward. Mr. Hicks lives in the trailer. The proposed
site for the new constructed home is in the center of property and sets back further than the trailer
does from the road. There are two driveways that access the homes that are in the rear of the
property. Mr. Artz noted that the trailer will be removed. Mr. Artz stated this dwelling would be
an improvement to the property.
Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one
came forward.
PUBLIC HEARING CLOSED
Chairman Lowman ask for any discussion or comments. (none)
On a motion made by Mr. Shenk to approved Variance Request #08-18 of David A. Hicks and
Mr. Rinker seconded the motion which was approved unanimously.
Vice-Chairman Scott made a motion to adjourn the meeting at 4:05 p.m. and Mr. Madagan
seconded the motion.
____________________
Eric Lowman, Chairman
_____________________
Pamala Deeter, Secretary
APPEAL APPLICATION #03 -18
OF
ROCKWOOD 72, LLC
APPEAL APPLICATION #03-18
ROCKWOOD 72, LLC., APPLICANT
Staff Report for the Board of Zoning Appeals
Prepared: March 30, 2018
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:
April 17, 2018
Public Hearing Action Pending
LOCATION: The subject property is located at Rockwood Trail.
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER: 49B02-123-72
PROPERTY ZONING & USE: Zoning: R5 (Residential Recreational Community)
Land Use: Vacant
ADJOINING PROPERTY ZONING & USE:
North: R5 (Residential Recreational Community) Land Use: Residential
East: R5 (Residential Recreational Community) Land Use: Vacant
South: R5 (Residential Recreational Community) Land Use: Vacant
West: R5 (Residential Recreational Community) Land Use: Residential
Appeal Application #03-18 – Rockwood 72 LLC.
March 30, 2018
Page 2
APPEAL: An appeal of an administrative determination of the Zoning Administrator in the
administration of the Frederick County Zoning Ordinance Administrative Determination Letter
(enclosed as Enclosure 1).
REASON FOR APPEAL: Applicant is appealing the administrative determination of the Zoning
Administrator that a radio tower is not a permitted use in the R5 (Residential Recreational
Community) Zoning District and that the tower erected must be removed (Appeal enclosed as
Enclosure 2).
STAFF COMMENTS: The property owner applied for a building permit to erect a lattice-type
tower, represented to be an amateur radio tower, on the property located on Rockwood Trail, after
the tower was erected (Photos enclosed as Enclosure 3). After review of Building Permit #0000727-
2017 application, the Building Permit was not signed nor was it issued by the Zoning Administrator.
The administrative determination letter and e-mail were sent to the Applicant on December 21,
2017, stating that it could not be approved, as an amateur radio tower is not a permitted use in the R5
(Residential Recreation Community) Zoning District.
Section 165-502.04. of the Frederick County Zoning Ordinance (“Ordinance”), which establishes the
permitted uses within the R5 Zoning District, provides that: All uses allowed in the RP Residential
Performance District are permitted uses (Enclosure 4).
Section 165-402.02 of the Ordinance lists all the permitted uses within the RP (Residential
Performance) Zoning District (Enclosure 5). A radio tower is not listed as a permitted use.
Therefore, an amateur radio tower located on this property is not an allowed use in the R5 Zoning
District, and the erection of the tower constitutes a violation of the Ordinance.
STAFF CONCLUSIONS FOR THE APRIL 17, 2018 MEETING: Staff is requesting the BZA to
affirm the decision of the Zoning Administrator that an amateur radio tower is not a permitted use in
the R5 Zoning District and that the tower erected must be removed.
49B02 123 72
425ROCKWOODTRL
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APP # 03 - 18Rockwood 72, LLCPIN:49B02 - 123 - 72Appeal of Decision of Zoning AdministratorLocation Map
0 100 20050 Feet
APP # 03 - 18Rockwood 72, LLCPIN:49B02 - 123 - 72Appeal of Decision ofZoning AdministratorLocation Map
APP #03-18
APPEAL APPLICATION #04-18
OF
750 REMINGTON, LLC
APPEAL APPLICATION #04-18
750 REMINGTON LLC. APPLICANT
Staff Report for the Board of Zoning Appeals
Prepared: March 30, 2018
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:
April 17, 2018
Public Hearing Action Pending
LOCATION: The subject property is located at 750 Remington Drive.
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER: 58A08-E18-16
PROPERTY ZONING & USE: Zoning: R5 (Residential Recreational Community)
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: R5 (Residential Recreational Community) Land Use: Vacant
East: R5 (Residential Recreational Community) Land Use: Vacant
South: R5 (Residential Recreational Community) Land Use: Residential/Vacant
West: R5 (Residential Recreational Community) Land Use: Vacant
Appeal Application #04-18 – 750 Remington, LLC.
March 30, 2018
Page 2
APPEAL: An appeal of an administrative determination of the Zoning Administrator in the
administration of the Frederick County Zoning Ordinance (Administrative Determination Letter
enclosed as Enclosure 1).
REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator that a
Conditional Use Permit (CUP) must be obtained for two commercial telecommunication towers
erected on the property without a CUP or the towers must be removed. (Appeal enclosed as
Enclosure 2).
STAFF COMMENTS: County staff received a complaint of a commercial telecommunications
facility used for wireless service. Staff visited the property and noted two (2) towers with arrays
located on the towers. (Photos enclosed as Enclosure 3). The property owner was cited for violation
of Section 165-204.19 of the Frederick County Zoning Ordinance (“Ordinance”) for erecting two (2)
towers for commercial telecommunications for wireless service on the property without an approved
Conditional Use Permit (CUP).
Section 165-101.02 of the Ordinance defines: Commercial Telecommunication Facility-A
structure, including the tower, antennas, panels, microwave dishes receiving dishes, equipment
building, other transmitting and receiving components and other accessory structures, used for the
wireless electromagnetic transmission of information, excluding structures utilized as satellite earth
stations and structures utilized for amateur or recreational purposes such as ham radio or citizen
band radio. (Enclosure 4)
Section 165-204.19 of the Ordinance requires an approved CUP for Commercial Telecommunication
Facilities within all the County’s zoning districts including the R5 (Residential Recreational
Community) District. This property has no record of a CUP approved by Frederick County for a
Commercial Telecommunication Facility. (Enclosure 5)
STAFF CONCLUSIONS FOR THE APRIL 17, 2018 MEETING: Staff is requesting the BZA to
affirm the decision of the Zoning Administrator that a CUP be obtained for the two towers, or that
the towers be removed.
58A08 E18 16
747REMINGTON DR
721REMINGTON DR
627REMINGTON DR 616REMINGTON DR
625MARLIN DR
401BLUEBIRDTRL
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380FOXRUN LN
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Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: January 18, 2018Staff: mcheran
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APP # 04 - 18750 Remington, LLCPIN:58A08 - E18 - 16Appeal of Decision of Zoning AdministratorLocation Map
0 175 35087.5 Feet
APP # 04 - 18750 Remington, LLCPIN:58A08 - E18 - 16Appeal of Decision of Zoning AdministratorLocation Map
APP #04-18