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BZA 04-16-19 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 16, 2019. PRESENT: Eric Lowman, Chairman, Red Bud District; Reginald Shirley III, Opequon District; Dudley Rinker, Back Creek and Dwight Shenk, Gainesboro District ABSENT: Kevin Scott, Vice -Chairman Shawnee District; John Cline, Stonewall District and Ronald Madagan Member at Large. 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. On a motion made by Mr. Rinker and seconded by Mr. Shenk, the minutes for the December 18, 2018 meeting were unanimously approved as presented. ELECTION OF OFFICERS AND ADOPTION OF BYLAWS Chairman Lowman opened the floor for nominations for Chairman. Mr. Rinker made a motion to nominate Mr. Lowman and Mr. Shirley seconded the motion. The floor was closed for nominations. The vote was unanimous for Mr. Lowman as Chairman. Chairman Lowman opened the floor for nominations for Vice -Chairman. Mr. Shenk made a motion to nominate Mr. Scott and Mr. Rinker seconded the motion. The floor was closed for nominations. The vote was unanimous for Mr. Scott as Vice -Chairman. Chairman Lowman opened the floor for nominations for Secretary. Chairman Lowman made a motion to nominate Mrs. Deeter and Mr. Rinker seconded the motion. The floor was closed for nominations. The vote was unanimous for Mrs. Deeter as Secretary. Mr. Cheran stated that the Board of Zoning Appeals has met at 3:30 p.m. on the third Tuesday of the month. Frederick County Board of Zoning Appeals 1761 Mr. Rinker made a motion to keep the Board of Zoning Appeals meeting time at 3:30 p.m., on the third Tuesday of the month. Mr. Shenk seconded the motion and the vote was unanimous. Chairman Lowman asked if anyone had questions on the Adoption of the Bylaws. On a motion by Mr. Shirley and seconded by Mr. Rinker the Bylaws were approved with a correction of Article 6-2 stating "No action of the BZA shall be valid unless authorized by a majority vote of members present". The vote was unanimous. Chairman Lowman inquired if there are any applications for May. Mr. Cheran stated no, the cutoff date is Friday, April 19, 2019. PUBLIC HEARING Chairman Lowman read the request for Variance Request #01-19 of Diane Hyman and David Hyman, submitted for a 15.2 -foot left side yard variance to a required 50 -foot left side yard setback which will result in a 34.8 -foot left side yard setback for a sunroom. This property is located at 484 Germany Road, Winchester and is identified with Property Identification Number 73 -A -48A in the Back Creek Magisterial District. Mr. Cheran came forward to present the Staff report. The property is zoned RA (Rural Areas) and the land use is residential. Mr. Cheran presented the location map and commented the parcel was created in 1998. On the map was also a structure, but a deck has been added to the structure and building permits department only keep the permits for 5 years. The setback in the RA (Rural Areas) District are 60 -feet for the front, 50 -feet for the left side yard, 100 -feet for the right -side yard and 100 -feet for the rear yard. Staff reiterated the request that Chairman Lowman read. Mr. Cheran read The Code of Virginia 15.2-2309 (2) and Code of Frederick 165-1001.21 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. Frederick County Board of Zoning Appeals 1762 Mr. Rinker asked Mr. Cheran can you get two variances on one parcel. Mr. Cheran replied yes. The explanation for that is when the parcel was created there was a need for a variance for the dwelling and the deck was added later. Now, new ownership is requesting a portion of the deck to be enclosed for a sunroom. Chairman Lowman opened the floor to the Applicant. Ms. Hyman came forward and stated that she had nothing to really to add to the presentation. Ms. Hyman mentioned that the property is surrounded on three sides by orchards. Ms. Hyman spoke to neighbors who have no objection to enclosing a portion of the deck for a sunroom. Ms. Hyman has a letter from the neighbors with no objection to this variance. Chairman Lowman asked was the deck on the house when you purchased it? Ms. Hyman replied yes. Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one came forward. Public Hearing Closed Discussion/ No Discussion On a motion made by Mr. Rinker to approve Variance Request #01-19 of Diane Hyman and David Hyman and seconded by Mr. Shenk, it was unanimously approved. PUBLIC HEARING Chairman Lowman read the request for Variance Request #02-19 of Carl Fertig and Joanna Fertig, submitted for a 26.1 -foot right side yard variance to a required 26.1 -foot right side yard setback which will result in a 23.9 -foot right side yard setback for a proposed addition. This property is located at 385 Burnt Factory Road, Stephenson and is identified with Property Identification Number 56 -A -1-A5 in the Stonewall Magisterial District. Mr. Cheran came forward to present the Staff report. The property is zoned RA (Rural Areas) and the land use is residential. Mr. Cheran presented the location map. The Applicant pulled a building permit for a garage. The setbacks at the time of permit for the garage was 60 -ft. front, 99 -ft. rear, right was 23 -ft. and left 108 -ft. Rural Areas accessory structure setbacks are 60 -ft. from the road, 45 -ft. from private right-of- way, 15 -ft. left, right and rear of the property. A complaint was reported that the breezeway was being connected to the house and to the garage. Once this happens then you follow the primary setbacks as this is consider one dwelling. Both the house and the garage alone meet the setbacks. Mr. Cheran read 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. Frederick County Board of Zoning Appeals 1763 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 states that the ordinance can only be changed by the Board of Supervisors. Mr. Cheran mentions this variance falls under number #3. This was a self-inflicted decision by attaching the house to the garage. The house alone with setbacks was fine and the permit for the garage was fine but when you decided to attach them together, that is where the violation of setbacks is. The Property Owner is ultimately responsible for what is happening on their property. In conclusion, Staff doesn't support this variance. Chairman Lowman needed clarification of the process of the building permit for the Applicant. Mr. Cheran stated the application was applied for through the Inspections Department and then Planning Department reviews the application for setbacks. At that time, the setbacks were meet for a detached garage. Then when it was inspected, a correction notice went out from the Inspections Department. Mr. and Mrs. Fertig revised the permit. Staff noted that the Applicant is in legal proceedings with the contractor. Mr. Rinker asked what the distance between the primary structure and the detached structure was. Staff noted we use the 3 -foot rule. Chairman Lowman asked, what is the distance between porch roof to porch roof. Mr. Cheran explained this would fall under the architectural distance rule. Staff gave several examples. Mr. Shirley noticed a door on the side of the garage. Mr. Shirley suggested that if we approved the setback and later the Applicant put stairs to that door, we as a Board don't want that to violate setbacks. Mr. Cheran address the concern, if the Applicant was to attach stairs that would fall under the architectural setbacks and wouldn't violate setbacks. The Applicant, Mr. Carl Stephen Fertig, came forward to speak. Mr. Fertig stated they checked the contractors references and he is a Class A builder. The builder was to build a two-story garage, covered porch/deck. Mr. Fertig said several draws were given to the contractor and some work was being done. Then the contractor wanted another draw and Mr. Fertig said no because there is still a lot of work to be completed. The contractor was upset and pulled his work crew from the site. The Applicant waited a few days and contacted the contractor. Mr. Fertig stated he would give him another draw if he purchased all the remaining materials to complete the job and bring them to the work site. The contractor said no. During this conversation, the Applicant asked the contractor about the permits. The contractor was hired to build a garage, breezeway and deck. The contractor stated he had the garage permit outside and didn't need to post all permits at the jobsite. The Applicant was under the Frederick County Board of Zoning Appeals 1764 assumption that he had all the permits. Mr. Fertig as of today, still has not received copies of the permits from the contractor. At this point, Mr. Fertig contacted the Inspections Department and told them they had a contractor walk off the job. Mr. Fertig was informed to write a letter to the Inspections Department as to what happened. The Applicant requested an inspection and the inspector said there is no building permit. Mr. Fertig explained he hired this contractor in good faith to build this and assumed he had pulled the permits, as well as, the contractor received monetary payment and work was not completed. Mr. Fertig is aware that it is ultimately the property -owners responsibility to make sure that permits are pulled. The Building Official told Mr. Fertig no work can be completed until after going before the Board of Zoning Appeals to see if this variance would be granted for setback of the breezeway. The Building Official said if the variance is approved then Mr. Fertig could apply for the building permits. Mr. Fertig said this wasn't done intentionally and this has caused a hardship for them. Mr. Fertig explained we met the setbacks for the garage, and he doesn't understand why attaching a breezeway and deck make a difference. Chairman Lowman explained when you attached the garage and breezeway to house it makes it one structure according to code. Chairman Lowman explained that setbacks for attached house to a breezeway/garage is a different footprint than an individual house or garage that is standing alone. If there is engrossment on the property line, that is why you must go through the process of a variance. This Board looks at this application and determines whether to grant the approval or not, based on the criteria of the situation for the setback that is in question. Mr. Fertig noted as far as the door on the side of the garage that has been closed off and there will be no door there. The Applicant is putting up siding on that area. Mr. Rinker asked, was the contractor made aware that you wanted a breezeway between the house and the garage. Mr. Fertig stated yes. Mr. Fertig stated he has the contract if the Board needs to see that. Mr. Fertig mentioned to the Building Official, how was he going to get the inspection completed without a permit. Mr. Rinker confirmed with Mr. Fertig that the contractor was to pull the permits. Mr. Fertig stated yes. Chairman Lowman addressed Mr. Cheran to see if there was another route other than the variance. Mr. Cheran said no. Staff stated if the variance is denied the County will send a notice of violation and the Applicant has 30 days to comply. The Applicant can always appeal the decision and then it goes through the court system. Mr. Rinker pointed out what about a boundary line adjustment. Mr. Cheran stated this is an older subdivision and that wouldn't be possible because of the setbacks. Mr. Cheran mentioned again that the original permit was just for a garage. The inspectors inspected the garage for footers, roof, slab and steel etc., then one day, one of the inspectors noticed the construction of the breezeway. In the report, it shows where the Applicant/Contractor was charged $75.00 for working with no permit. The County issued two correction notices. One notice was for not being built to the plans and the second one was no permit for a deck/breezeway and additional work was being done without a permit (electrical). Frederick County Board of Zoning Appeals 1765 Chairman Lowman inquired if the Applicant has asked adjoining property owner to do a boundary line adjustment. Chairman Lowman explained that procedure to the Applicant. The Applicant stated no he didn't ask the neighbor. Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one came forward. Public Hearing Closed Discussion/No Discussion On a motion made by Mr. Shenk to approve Variance Request #02-19 of Carl Fertig and Joanna Fertig based on hardship and seconded by Mr. Rinker, the motion was unanimously approved. PUBLIC HEARING Chairman Lowman read the request for Variance Request #03-19 of Armin Wessel and Renee Wessel, submitted by Don Packard, Jr., for a 22 -foot left side yard variance to a required 50 -foot left side yard setback which will result in a 28 -foot left side yard setback for an attached garage. This property is located at 562 Lake Serene Drive, Winchester and is identified with Property Identification Number 3113-1-8 in the Gainesboro Magisterial District. Mr. Cheran came forward to present the Staff report. The property is zoned RA (Rural Areas) and the land use is residential. Mr. Cheran presented the location map. Staff stated that the property is .66+/- acres in size and is not in the flood plain. The size of the property will not meet the RA (Rural Areas) setback requirements. Staff reiterated the setback being requested was for an attached garage. Mr. Cheran stated the zoning map shows this parcel was zoned A-2 (Agricultural General) in 1967 that is when Frederick County adopted the zoning ordinance. When zoning was adopted, the setback for this parcel was 35 -feet for the front, 15 -feet for the side yards and 50 -feet for the rear yard. The 1989 ordinance was amended, and the A-2 Zoning District changed to the current RA (Rural Areas) Zoning District. Then again on February 28, 2007, the Board of Supervisors changed the RA Zoning District setbacks to 60 -feet to the front, 50 -feet to the rear, and 50 -feet to both sides. Mr. Cheran read 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 Frederick County Board of Zoning Appeals 1766 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. The proposed variance appears to be consistent with the character of the District. The variance meets both Codes and this variance on setbacks maybe justified. Mr. Don Packard, Jr., representing the Applicant came forward. Mr. Packard added that the Applicant has supplied the Homeowners Association with a request about the garage and there was no opposition from the adjoining property owners. Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one came forward. Public Hearing Closed Discussion/No Discussion On a motion made by Mr. Shenk to approve the Variance Request #03-19 of Armin Wessel and Renee Wessel and seconded by Mr. Shirley the motion was unanimously approved. PUBLIC HEARING Chairman Lowman read the request for Variance Request #04-19 of William Stewart, submitted for a 16 - foot right side yard variance to a required 50 -foot right side yard setback which will result in a 34 -foot right side yard setback for a proposed addition. This property is located at 2088 Brucetown Road, Clear Brook and is identified with Property Identification Number 34-A-38 in the Stonewall Magisterial District. Staff came forward to present the Staff report. Mr. Cheran stated the property is zoned RA (Rural Areas) and is residential. Mr. Cheran presented the location map and mentioned the parcel was created in 1992 and no building restriction lines were assigned to the property. Mr. Cheran noted that the Applicant would need to meet the current RA (Rural Areas) setbacks. Current setbacks for the property are 60 -feet for the front, 50 -feet for the sides and 50 -feet for the rear. Mr. Cheran reiterated the setbacks the Applicant is requesting. Mr. Cheran read 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 Frederick County Board of Zoning Appeals 1767 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. In conclusion, Staff said the variance may be justified as it does meet the intent of the State Code and Frederick County Code. Mr. William Stewart came forward. Chairman Lowman clarified with Mr. Stewart if there are two dwellings. Mr. Stewart said there is only one house now. Mr. Stewart is requesting an addition to the existing house. Mr. Stewart stated he is here because his daughter has a lease purchase agreement with the property owner. The structure is not livable. Mr. Stewart's Company is renovating the dwelling so his daughter can apply for a mortgage loan. Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one came forward. Public Hearing Closed Discussion/No Discussion On a motion made by Mr. Shirley to approve Variance Request #04-19 of William Stewart and seconded by Mr. Shenk the motion was unanimously approved. Mr. Shenk made a motion to adjourn the meeting at 4:35 p.m. and Mr. Rinker seconded the motion. Eric Lowman, Chairman Pamala Deeter, Secretary Frederick County Board of Zoning Appeals 1768