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BZA 04-17-18 Meeting MinutesMEETING 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 April 17, 2018. PRESENT: Eric Lowman, Chairman, Red Bud District; Kevin Scott, Vice -Chairman Shawnee District; John Cline, Stonewall District; Reginald Shirley, 111, Opequon District; Dudley Rinker, Back Creek District; 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 May. Mr. Cheran stated no, the cutoff is Friday. On a motion made by Mr. Cline and seconded by Mr. Shirley, the minutes for the March 27, 2018 meeting were unanimously approved as presented. PUBLIC HEARING Chairman Lowman read the request for Appeal Application #03-18 of Rockwood 72, LLC., who is appealing the decision of the Zoning Administrator as to Chapter 165 Zoning, Section 165- 502.04. A allowed uses in the R5 (Residential Recreational Community) Zoning District of the Frederick County Zoning Ordinance. The subject property is located at Rockwood Trail and is identified with Property Identification Number 491302-123-72 in the Back Creek Magisterial District. (Take Route 50 West turn onto Back Mountain Road, then right onto Rosenberger Lane, left on 'Timber Ridge Trail proceed to Rockwood Trail). Vice -Chairman Scott recused himself from the input due to relationship with the Applicant. Frederick County Board Zoning of Appeals 1741 Mr. Cheran came forward presented a map and mentioned the property is zoned R5 (Residential Recreational Community). Mr. Cheran introduced Mr. Robert Mitchell, Jr., Attorney who is representing the Zoning Administrator, Mr. Cheran, and Mr. Mitchell will present the appeal to the Board of Zoning Appeals. Mr. Mitchell outlined the points that he was going to present to the Board. 1. The procedure under the Code of Virginia for an appeal of the Zoning Administrator. 2. Address the basis of the Zoning Administrator determination. 3. Address the Applicant's letter and the Attorney letter for the reason of an appeal. Mr. Mitchell stated there are two code sections that apply to this appeal: 1. Code of Virginia 15.2 2309 Decision on Appeal shall be based on the Boards judgement of whether the Zoning Administrator was correct. This means the Board needs to decide if the Zoning Administrator is correct in interpreting the zoning ordinance. The decision of Zoning Administrator is presumed to be correct. During the hearing the Zoning Administrator shall explain his determination and the Applicant has the burden of proof to rebut the presumption of correctness. 2. Code 15.2 2312 A concurring vote of the majority of the Board is necessary to overturn the determination of the Zoning Administrator. This Board has seven (7) members and you would only need 4 to overturn the appeal. Mr. Mitchell noted the Zoning Administrator's determination was based on Chapter 165 Zoning Ordinance use list. Mr. Mitchell stated the radio tower is not a permitted use in the R5 (Residential Recreational Community) Zoning District and the tower needs to be removed. The Zoning Administrator's determination was based on the Frederick County Zoning Ordinance Chapter 165 as to what is a permitted use in the R5 Zoning District. Mr. Mitchell gave the Section 165-502.04 A of the County's Ordinance which established the permitted uses in the R5 Zoning District. The allowed uses list in the RP (Residential Performance) District are the same as the R5 District. Next, refer to the RP list, and there is one exception, the radio tower is not on the permitted use list, so this constitutes a violation on the property, and no zoning review or County approval was given, so this radio tower is clearly in violation of the zoning ordinance. Mr. Mitchell mentioned in the RA (Rural Areas) radio towers and television towers are permitted. Mr. Mitchell replied to the letter from Mr. Hill, the attorney for the Applicant. Mr. Mitchell referenced that Mr. Hill doesn't dispute that the radio towers are not listed as a permitted use in the R5 District. Mr. Mitchell notes that Mr. Hill says that neither section address the personal structures that preclude on lots zoned R5. Mr. Mitchell explained how the Frederick County Zoning Ordinance works. The zoning ordinance Frederick County Board Zoning of Appeals 1742 list what is a specific allowed permitted use on your personal property. The County ordinance does not list the uses that are not permitted. Mr. Mitchell stated there are too many not permitted uses to list. The Applicant letter states that the tower is an accessory use permitted in the R5 District and the Applicant suggest that the tower is an accessory use and is permitted in the District. Mr. Mitchell mentioned the house and the tower are on two separate lots. Mr. Mitchell explained the definition of accessory use according to the Zoning Ordinance. The example he used is a garage to a single-family residence. The Applicant is arguing about estop that the County is enforcing concerning the tower. Mr. Mitchell stated that the estop is the primary base for the appeal. The structure is already built and no approval or building permit was issued. The Applicant argues that when he had a prior meeting with the Building Official information was relayed to him that a building permit was needed and other requirements from the Inspection Department. There was no information relayed to him about the Zoning Department requirements. Since the Applicant wasn't informed of the zoning restriction, the Applicant is saying that the County should be prohibited from enforcing the Ordinance against the radio tower. Mr. Mitchell explained the steps as to how a building permit is issued. The Applicant submits the application then the application is forward to the Planning & Development Department for review of zoning approval. Then if approved by the Planning & Development Department a permit is issued. When this building permit was reviewed by the Planning & Development Department, it was determined that the tower didn't meet the requirement for zoning. Mr. Mitchell presented that in a 1989 case for Westminster Canterberry of Hampton Road versus City of Virginia Beach, the Supreme Court of Virginia ruled that an estoppel cannot be applied against state or local governments. Mr. Mitchell explained that the Applicant is arguing that the tower is not a commercial tower and is an amateur radio tower and this should count in favor of the Applicant. Mr. Mitchell stated that in Mr. Hill's letter he quoted the FCC regulation and how the FCC protects owners to erect amateur radio antenna structures. Mr. Mitchell stated that the radio tower is not a permitted use in R5 District and this Board of Zoning Appeals has no authority to change or make an exception to the Frederick County Ordinance which the Board of Supervisors adopted permitted uses. The Frederick County Ordinance does allow amateur radio tower or communication towers in certain District. Frederick County has 90 percent of land in the RA District where amateur radio towers are permitted without a CUP as a by -right. Mr. Mitchell states in conclusion that the Zoning Administrator is clear with his determination of the Frederick County Zoning Ordinance that the tower is not permitted in the R5 District and hopes the Board of Zoning Appeals upholds the Zoning Administrator's determination. Mr. Andrew Hill of McCarthy & Akers representing the Applicant Rockwood 72 came forward Frederick County Board Zoning of Appeals 1743 Mr. Hill argued that Section 165-502.4 of the Frederick County Zoning Ordinance (Permitted Uses in the R5 District) directs you to the RP (Residential Performance) District use list which does not mention the radio tower, rather amateur or commercial tower as a permitted use. Mr. Hill believes that the tower should be considered an accessory use because the tower is not the primary use of the property. Mr. Hill pointed out the lot beside the tower is owned by Rockwood 72 and a house is on a separate lot. The tower should be classified as an accessory structure. Mr. Hill brief description why the appeal should be overturned. This started approximately a year ago when the Applicant received a violation letter. The Applicant had a representative Mr. Beau Correll, Jr., Attorney meet with the Building Official and Erin Swisshelm, Assistant County Attorney to see what was needed to move forward with the tower. The outcome of the meeting was building and electrical permits, engineering design plan, and statement of intent from the radio operator. The Applicant presumed after this meeting that was all the requirements he needed to move forward. The tower was already built by this time and there is no dispute about that, but the Applicant thought this was all the requirements. Mr. Beau Correll, Jr., has submitted a letter regarding the meeting with the County employees. The Applicant proceeded with the engineered specification design plan and at that time there was no mention to zoning requirement. Mr. Hill stated the Applicant received a violation letter in October 2017 from the Planning & Development Office regarding the zoning of the tower. Then this violation letter was withdrawn. Then on December 21, 2017 a letter was sent out stating this tower is not a permitted use in the R5 District. Mr. Hill concluded that the FCC does have regulations to protect broad band communication. Mr. Hill also states the FCC doesn't discriminate as far as RA District where this is an allowed use or the R5 District where the tower is not permitted. Mr. Shirley proposed a question, is the tower a commercial tower or an amateur tower? Mr. Hill replied this is for amateur radio. Citizen Comments Chairman Lowman opened the floor to anyone in favor of the appeal. Mr. Jordan Castell a resident of Frederick County. He explained that amateur radio is a leisure and recreational hobby. In the (226) zip code there is approximately 600 residences participate in this activity. Mr. Castell gave the definition of outdoor recreational facilities. He believes that the tower fits that definition. Mr. Castell states that Great North Mountain is the highest point where several towers are located; and this tower should be granted for the good of the County. Mr. Michael Wolf a resident of Frederick County. Mr. Wolf is here to support the amateur radio tower for recreational, but it could also provide public service and emergency service if needed. Mr. Wolf is the President of an amateur radio club in Clarke County called the Blue Avalanche. The organization that Mr. Wolf participates in was going to put a reaptor on the tower for further coverage. This additional coverage could also be used for emergency purposes. Frederick County Board Zoning of Appeals 1744 Mr. Lee Phillips an emergency service coordinator for Clarke County spoke. If a hurricane hits an area the amateur radio usually is the only communication available. Again, the County doesn't fund the amateur radio equipment. Mr. Seth Castell lives on Valley View Trail. He stated there is several towers on Great North Mountain. When his power or phone goes out, he relies on his generator and his ham radio. Mr. Dominick Repeachie a member of the Shenandoah Amateur Radio Club came forward. Mr. Repeachie believes this is a policy issue. Mr. Repeachie states he thinks the Board needs to consider what is the best interest of the County. The amateur radio tower gives great benefit to the County as a whole. Mr. Glen Kelly a resident of Frederick County and he is a first responder. Mr. Kelly gave a situation where he has had to rely on ham radio because of no connectivity to cell phones. Chairman Lowman opened the floor to anyone opposing the appeal. Mr. Rudolph Warell lives in Winchester. He states there is approximately 60 to 70% broad band equipment on the tower and that is not for ham radio. Mr. Warell states the tower pad was constructed on February 12, 2017 and the adjoining property wasn't purchased by Rockwood 72 until March 2018. He stated, if Rockwood 72, LLC had applied for a Conditional Use Permit this would be presented before the Planning Commission and a public hearing would be held. The community would have had an opportunity to speak for or against this issue. Mr. Owen Piffner adjacent property owner. His concerns are the lights and security cameras on the tower. This tower is approximately 100 feet tall and the tower is leaning toward his house. Mr. Piffner presented to the Board two photos from his house showing the tower. Mr. Owen Piffner's fianc6 came forward her name is Angela she will be residing there in the future and her concerns are the lights, the tower falling and the radiation from the tower. Mr. Mitchell came forward and gave the definition of accessory structure. Mr. Mitchell explained why the tower couldn't be consider an accessory use. The accessory use must be located on the same property as the primary structure. The lot that has the house could be sold at any time. Mr. Mitchell stated that the meeting that was held with Mr. Beau Correll, Jr. and the County Official was just the building and engineering department, and this didn't include zoning issues. Mr. Mitchell again went over the process of the building permit and that Planning and Development reviews this application before the issuance of the permit. Mr. Mitchell addressed Mr. Castell's point that this tower cannot be consider a recreational because in the Ordinance there is a separate section that gives the regulations and descriptions for telecommunication towers. Mr. Mitchell addressed another citizen comment regarding this being a policy issue if an amateur tower could be permitted in the R5 District. The Board of Supervisors adopted this Ordinance and the Board of Zoning Appeal members cannot change the Ordinance. The role of the Board of Zoning Appeal members is to determine that the Zoning Administrator's interpretation is correct or not. Frederick County Board Zoning of Appeals 1745 Mr. Hill addressed Mr. Piffner's statement about lights on tower. The tower is under the height restriction for lights so no lights will be placed on the tower. The height restriction from the FAA is anything above 200 feet requires lights to be placed on tower. Mr. Hill explained the photo that was presented the tower seems to be leaning toward Mr. Piffner's house, but before erecting the tower there was a complete engineer study and it was built by engineering specifications. Mr. Hill commented on Mr. Mitchell's point about the two separate lots. Mr. Hill stated yes there are two separate lots which could be consolidated easily. In the Frederick County Zoning Ordinance, Mr. Hill reiterates that the tower is not listed on the use list for the R5 District and RP District, but this tower should be considered an accessory use. Mr. Hill stated there are several towers placed on Great North Mountain. Mr. Hill's final comment is that the estoppel should apply because the FCC regulates the protection for owners to constructed amateur towers. The FCC doesn't specify where the tower can be built. The letter that is presented to you is from Mr. Beau Correll, Jr., representing the Rockwood 72, at this meeting. The Building Official and Assistant County Attorney was present. The letter summarizes the meeting and the condition was laid out for Rockwood 72 to follow and if Rockwood 72 met these conditions everything would be fine. There was no mention as to zoning requirements. Mr. Hill states in closing that they County Official's should be held accountable for their inforination. PUBLIC HEARING CLOSED Discussion Mr. Madagan expressed that he looked at the tower, and if it did fall it could land in the neighbor's house. Chairman Lowman stated there is benefits to ham radio, but this Board has a decision to make as far as the interpretation of the Zoning Administrator is correct or not. The Board of Zoning Appeals must follow the Frederick County Zoning Ordinance which was adopted by the Board of Supervisors. On a motion made by Mr. Rinker to uphold the Zoning Administrator's decision to deny appeal #03-18 of Rockwood 72, LLC and Mr. Madagan seconded the motion which was denied by a roll call vote unanimously. PUBLIC HEARING Chairman Lowman read the request for Appeal Application #04-18 of 750 Remington, LLC., who is appealing the decision of the Zoning Administrator as to Chapter 165 Zoning, Section 165- 502.04. A. allowed uses in the R5 (Residential Recreational Community) Zoning District of the Frederick County Board Zoning of Appeals 1746 Frederick County Zoning Ordinance. The subject property is located at 750 Remington Drive proceed to Route 50 West turn onto Back Mountain Road, continue to 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. Vice -Chairman Scott recused himself from the input due to relationship with the Applicant. Mr. Cheran summarized the 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. Staff presented a location map and noted the towers are on Remington Drive and are in the R5 (Residential Recreational Community) District. Mr. Robert Mitchell, Jr. is representing the Zoning Administrator. The Zoning Administrator's determination is based upon two towers being erected and no CUP was applied for. The two towers need to be removed or a CUP obtained. A citizen notified the Planning & Development Office with a complaint of two towers. The property was visited by Staff and noticed two towers had been constructed. Staff cited the Property Owner for a violation of Zoning Ordinance, Section 165-204.19 for erecting two towers for commercial telecommunication for wireless service on the property without an approved CUP. Mr. Mitchell read Section 165-101.02 of the Ordinance which defines Commercial Telecommunication Facility. The photos that were taken by Staff indicate these towers are Commercial Telecommunication. Commercial Telecommunication towers are permitted in all District's if the Property Owners have an approved CUP. This property is in the R5 District. Mr. Mitchell cites Section 165-204.19 of the Ordinance which gives the zoning steps to follow for communication towers. The one important requirement is to obtain an approved CUP for any District if you are erecting a tower. If you have an existing tower and obtained an approved CUP and need to co -locate no new CUP will be required. The Code of Virginia 15.2.2232A has placed several factors that are to be considered' before the CUP is approved such as surrounding residential properties, adjoining properties, scenic area, and complying with the Comprehensive Plan. The complete list can be found in Section 165.204.19. Mr. Mitchell stated the two towers were constructed without the Planning Commission and the Board of Supervisors review. Without this review the Planning Commission and Board of Supervisors were unable to place conditions on the towers, and they were not able to address any concerns that the adjacent property owners had. The Frederick County Ordinance clearly stated that telecommunication towers must have an approved CUP before construction along with County Official approval. The two towers have neither CUP or County Official approval and that is reason Frederick County Board Zoning of Appeals 1747 for the determination of the Zoning Administrator. The CUP needs to be obtained or the towers removed. Mr. Hill stating in his appeal that the two towers are for amateur radio. If you look at the photos provided you can see that is not correct. They are commercial towers. Mr. Mitchell commented if these were amateur radio the towers they still are not permitted because this is the R5 District. The Applicant again states about the protection from the FCC regulations on ham radio and the County must accommodate this tower. Mr. Mitchell states in the RA District you can have an amateur radio tower. Mr. Mitchell address the Applicant's statement of the first tower being grandfathered. This was built by a previous owner in 2010. The Applicant's Company didn't purchase the property until 2013 and the prior owner didn't receive a violation for the first tower, so this should be grandfathered. Mr. Mitchell explained the grandfather clause and how it works. The first tower was constructed and didn't obtain a CUP or County requirements, so it couldn't be considered under the grandfather clause. Mr. Mitchell says the next part of the appeal is the Applicant shouldn't have to obtain a CUP because the prior owner didn't receive a violation and wasn't enforced. Mr. Mitchell stated please take into consideration that to erect commercial towers you must obtain an approved CUP and no CUP was obtained for the existing towers. This was the bases of the determination of the Zoning Administrator which needs to be upheld in his decision or the Applicant needs to obtain a CUP or remove the towers. Now if the Board finds these towers not to be commercial then Mr. Mitchell asked the Board to have the towers removed because the towers are in the R5 District which is not a permitted use. Mr. Hill came forward and quoted a Section of the Ordinance about commercial towers. Commercial Towers need to obtain an approved CUP, but our appeal is based on the towers being amateur radio towers which don't require a CUP. Mr. Hill gave the timeline for erecting the towers. Mr. Hill states the towers are for amateur use and the tower are an accessory use to the property. Now several years later the County wants to enforce the ordinance and a CUP needs to be obtained. The previous Owner didn't receive any action from the County nor did it have any complaints. Mr. Hill states, not sure if looking at the photos you can determine if it is a commercial tower or an amateur radio tower. Mr. Hill mentioned that Mr. Mitchell states the photo show that the towers with all the equipment on them are commercial towers. Mr. Cline inquired as to how tall is the second tower. Mr. Hill replied 100 feet. Mr. Shenk inquired as to the height of the first tower. Mr. Hill replied 30 feet. Frederick County Board Zoning of Appeals 1748 Mr. Rinker inquired as to who pays for the maintenance on the towers and will the height of the second tower be extended. Mr. Hill replied the second tower will go no higher and the Applicant pays for the maintenance. Citizen Comments Chairman Lowman opened the floor to anyone in favor of the appeal. Ms. Beth Kump and Mr. Shawn Hunter lives at 747 Remington Drive and they were in favor of the towers. Ms. Kump mentioned that the towers are only visible from the end of her driveway or if you're on the homeowner's property. There are no lights on the towers. No concerns as to what he does to his property. Mr. Jordan Castell a Frederick County citizen expressed his opinion that amateur radio is recreational. Mr. Michael Wolf a resident of Frederick County clarifies that equipment might be used a certain way at one location and then if equipment is relocated it could be accessed another way. Mr. Glen Kelly a Frederick County resident clarified that ham radio connects to the internet. Ham radios are trying to keep a frequency up and running for internet so there is no down time. Mr. Kelly suggest that most towers are under 200 feet, so no lights are required because the property owner doesn't want to deal with FAA. Mr. Seth Castell lives at Valley View Trail. Mr. Castell stated ham radio is a fast-growing hobby. There is a program called Software Defined Radio where it connects to internet and finds a frequency to transmit photos and tv picture. Chairman Lowman opened the floor to anyone in opposition the appeal. Ms. Beth Schlapp a resident of Mountain Falls Park. Ms. Shalap noted that Mr. Hill is the attorney for the Homeowners Association for Mountain Falls Park. Ms. Schlapp stated she called the County about the violation of the towers. Ms. Schlapp also mentioned that Mr. Williamson was aware of the covenants and restrictions because Mr. Williamson was the Vice -President of the HOA at one time. Ms. BJ Grihangne a resident of Frederick County and the President of the Wild Acre Association came forward. Ms. Grihangne mentioned that Mr. Williamson is aware that properties in Wild Acres are not allowed for commercial use. Mr. Williamson had knowledge of the regulations and covenants of Wild Acres because he was the Vice -President until he resigned in December 2017. Mr. Williamson is using the towers for revenue suggested Ms. Grihangne. PUBLIC HEARING CLOSED Mr. Mitchell came forward to give his closing. The towers are either commercial towers or amateur towers. There seems to be two choices, if it is a commercial tower they need to obtain a CUP and keep the towers, and if an amateur radio they will need to remove the towers because it is not an allow use. Mr. Mitchell suggested that the photos are a commercial use and the Board upholds the determination of the Zoning Administrator. Frederick County Board Zoning of Appeals 1749 Mr. Hill came forward to give his closing. Mr. Hill handed out a snap that indicates the Properties that are owned or managed by the Applicant. The photo also indicates what properties can see the towers. Mr. Hill is agreeing with Ms. Beth Kump and Mr. Shawn Hunter that the towers could only be seen by the Applicant and Ms. Beth Kump and Mr. Shawn Hunter. Mr. Hill again noted that he thinks the photos cannot prove that this is a commercial tower. No expert has verified that this is a commercial tower or an amateur radio tower. Mr. Hill reiterated the timeline of the two towers. The County is basing their argument on their Frederick County Zoning Ordinance Section for commercial tower and that it is not accurate. Mr. Rinker asked is the Applicant receiving any revenue from the towers. Mr. Hill replied the Applicant is receiving revenue on the 2010 old tower and not receiving any revenue on the new tower. Discussion Mr. Shenk commented it is not for the Board to decide if these towers are commercial towers or amateur radio towers. The Board is here to determine if this is this an allowed use or zoning issue that is referenced in the Frederick County Ordinance. Chairman Lowman concurred with Mr. Shenk. Mr. David Williamson the Applicant came forward to speak. Before making the decision on the second tower, how would the County address existing towers new and old on Great North Mountain that doesn't have a CUP or a building permit. How do we change the Zoning Ordinance? Chairman Lowman expressed that we are here to either affirm the decision of the Zoning Administrator or overturn his decision based on the Frederick County Zoning Ordinance that was adopted by the elected Board of Supervisors. As a citizen or a community, you have the right to contact the Planning and Development Office to report a violation. Mr. Shenk commented that you can appear before the Planning Commission and Board of Supervisors and voice your concerns. On a motion made by Mr. Rinker to uphold the Zoning Administrator's decision to deny appeal #04-18 of 750 Remington LLC and Mr. Cline seconded the motion which was denied by a roll call vote unanimously. Mr. Rinker made a motion to adjou eeting at 5:20 p.m. and Mr. Cline seconded the motion. i Eric Lowman, Chairman Pamala Deeter, Secretary Frederick County Board Zoning of Appeals 1750