BZA 12-18-18 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
December 18, 2018
3:30 p.m. CALL TO ORDER
1) Determination of a Quorum
2) Minutes of July 17, 2018
3) Proposed 2019 Bylaws
PUBLIC HEARING
4) Variance Request #12-18 of CMH Homes Inc., submitted for a 28.7-foot left side yard
variance to a required 50-foot left side yard setback which will result in a 21.3-foot left side
yard setback, and a 28.7-foot right side yard variance to a required 50-foot right side yard
setback which will result in a 21.3-foot right side yard setback for a single-family dwelling.
This property is located at 1128 Cedar Grove Road and is identified with Property
Identification Number 31-A-121 in the Gainesboro Magisterial District.
Other
Adjourn
MINUTES FOR
THE
JULY 17, 2018
BZA MEETINGS
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 July 17, 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 District; Dwight Shenk, Gainesboro District and Ronald Madagan, Member at
Large.
ABSENT:
STAFF
PRESENT: Mark Cheran, Zoning Administrator 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.
On a motion made by Mr. Cline and seconded by Mr. Rinker, the minutes for the April 17, 2018
meeting were unanimously approved with the correction of paragraph 5 on page 1746. Draft
minutes read Mr. Hill’s final comment is that the estoppel should not apply because the FCC
regulates the protection for owners to construct amateur towers. The word not in that sentence
was removed.
On a motion made by Mr. Cline and seconded by Mr. Rinker, the minutes for the May 15, 2018
meeting were unanimously approved with the corrections on pages 1753 and 1754 of inserting
the word approved after each motion.
PUBLIC HEARING
Chairman Lowman read the request for Variance Request #11-18 of Stephen B. Surber, II, for
a 25-foot left side yard variance to a required 50-foot left side yard setback which will result in a
25-foot left side yard setback, a 20-foot right side yard variance to a required 50-foot right side
yard setback which will result in a 30-foot right side yard setback, and a 15-foot rear yard variance
to a required 50-foot rear yard setback which will result in a 35-foot rear yard for a single family
dwelling. This property is in Lake Saint Clair Development, Lot 10, Winchester and is identified
with Property Identification Number 31A-1-10 in the Gainesboro Magisterial District.
Mr. Cheran came forward and presented the Variance Request #11-18 of Stephen B. Surber, II.
Staff presented an aerial map and stated there is no dwelling on the property. Historical maps
indicate this property as being A-2 (Agricultural General). This parcel was created in 1959. In
1967, Frederick County adopted zoning; at the time the setbacks were 35 feet for the front and 15
feet for the side yards. The Ordinance was amended in 1989 changing the A-2 Zoning District to
Rural Areas (RA). The Ordinance was amended again in February 28, 2007, making the setbacks
for the parcel 60 feet to the front, 50 feet to the rear and 50 feet on the side yards.
Mr. Cheran explained that with the current setback the Applicant cannot meet the setback
requirements. Mr. Cheran also noted that the parcel is not in a floodplain or floodway according
to the FEMA maps.
Mr. Cheran recited, The Code of Virginia and Code of Frederick County, which 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 stated that the Applicant has met requirements of The Code of Virginia and
Frederick County. This variance request is justified because the Applicant cannot meet the
current setback requirements.
Chairman Lowman asked the Applicant if he wanted to come forward and speak. Mr. Surber
stated he had nothing to add to the presentation.
Mr. John B. Scroth, secretary of the HOA, came forward to speak. Mr. Scroth noted that Mr.
Surber presented his plans to HOA Board. The HOA Board explained he would need to get a
variance from the County. Mr. Scroth explained that Lake Saint Clair has a deed of dedication
and the setbacks are 25-feet. The Applicant adjusted his plans to meet the deed of dedication of
25-foot setback requirement. The HOA Board approved his plan.
Closed Public Hearing
Discussion
Mr. Shenk commented the lot is beautiful and whatever plan the Applicant picks would
complement the development.
On a motion made by Mr. Shenk to approve the Variance Request #11-18 of Stephen B. Surber,
II, and Vice-Chairman Scott seconded the motion which was unanimously approved.
Chairman Lowman inquired if there are any applications for August. Mr. Cheran stated no, the
cutoff date is Friday, July 20.
Vice-Chairman Scott inquired as to the status of the two Appeals Rockwood 72, LLC., and 750
Remington, LLC. Mr. Cheran stated no court date yet and will go before the Circuit Court.
_____________________
Eric Lowman, Chairman
____________________
Pamala Deeter, Secretary
REVIEW OF BY-LAWS
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FREDERICK COUNTY
BOARD OF ZONING APPEALS
BY-LAWS
(Proposed for Adoption December 18, 2018)
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
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immediately. A candidate receiving a majority vote of the entire voting
membership shall be declared elected.
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
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such cases, the newly elected officer shall serve only until the end of the calendar
year or until a successor takes office.
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
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7-1-6 Adjournment
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
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Virginia, (1950), as amended. Such public hearing shall be advertised and
notifications provided as required by the Code of Virginia, (1950), as
amended.
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 #12-18
OF
CMH HOMES, INC.
VARIANCE APPLICATION #12-18
CMH HOMES INC.
Staff Report for the Board of Zoning Appeals
Prepared: December 5, 2018
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 18, 2018
Public Hearing; Action Pending
LOCATION: The property is located at 1128 Cedar Grove Road, Winchester, Virginia.
MAGISTERIAL DISTRICT: Gainesboro
PROPERTY ID NUMBER: 31-A-121
PROPERTY ZONING & USE: Zoned: RA
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RA (Rural Areas) Use: Residential
South: RA (Rural Areas) Use: Residential
East: RA (Rural Areas) Use: Residential
West: RA (Rural Areas) Use: Residential
VARIANCE REQUESTED: The Applicant is requesting a 28.7-foot left side yard variance to a
required 50-foot left side setback resulting in a 21.3-foot left side setback, and a 28.7-foot right side
yard variance to a required 50-foot right side setback resulting in a 21.3-foot right side setback.
REASON FOR VARIANCE: The property cannot meet current setbacks do to size and acreage of
the adjoining properties.
STAFF COMMENTS: This property was created in 1960 as shown on the deed. Frederick County
adopted zoning in 1967. The Frederick County historical zoning map shows this property was zoned
A2 (Agricultural General) in 1967. The property setback lines at the adoption of the zoning
Variance #12-18 – CMH Homes, Inc.
Page 2
December 5, 2018
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 A2 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, 50-feet to the rear, and 50-feet to both sides.
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 28.7-feet on the
right and left side yard from the current 50-foot setback resulting in a 21.3-foot setback on both
sides. 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 50-feet. The Applicant will be removing the existing trailer as noted on plat.
STAFF CONCLUSIONS FOR THE DECEMBER 18, 2018 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.
31 A 121
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1137CEDARGROVE RD 1148CEDARGROVE RD
240LITTLE MTNCH RD
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VAR #12-18
VAR # 12 - 18: CMH Homes, Inc.PIN: 31 - A - 121Left and Right Side Yard Variance SetbackLocation Map