BZA 12-15-20 Meeting Agenda1.Call to Order
2.Determination of a Quorum
3.Meeting Minutes
3.A.Minutes of October 20, 2020
4.Public Hearings
4.A.Appeal Application #11-20 of Bryan Henry
Submitted by Aristotelis A. Chronis, Esq., with Chronis, LLC., to appeal the notice of
violation issued by the Zoning Administrator, dated August 11, 2020. The property is
located at 639 Reliance Road, Middletown, Virginia and is identified with Property
Identification Number 91-A-77 in the Opequon Magisterial District.
4.B.Variance Request #12-20 of Keith R. Tump
Submitted for a 20-foot front yard variance to a required 60-foot front yard setback
which will result in a 40-foot front yard setback and a 15-foot left side yard variance to a
required 50-foot left side yard setback which will result in a 35-foot left side yard
setback for a single family dwelling with a garage. The property is located on the
southwest corner of intersection with Mineral Street and Cougill Road Middletown,
Virginia and is identified with Property Identification Number 91-A-122 in the Back
Creek Magisterial District.
5.Other
AGENDA
BOARD OF ZONING APPEALS
TUESDAY, DECEMBER 15, 2020
3:30 PM
THE BOARD ROOM
FREDERICK COUNTY ADMINISTRATION BUILDING
WINCHESTER, VIRGINIA
BZA12-15-20MeetingMinutesOctober20.pdf
BZA12-15-20APP11-20.pdf
BZA12-15-20VAR12-20.pdf
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Board of Zoning Appeals
Agenda Item Detail
Meeting Date: December 15, 2020
Agenda Section: Meeting Minutes
Title: Minutes of October 20, 2020
Attachments:
BZA12-15-20MeetingMinutesOctober20.pdf
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Frederick County Board of Zoning Appeals
October 20, 2020
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 October 20, 2020.
PRESENT: Eric Lowman, Chairman, Red Bud District; John Cline, Stonewall District;
Reginald Shirley III, Opequon District; Dwight Shenk, Gainesboro District and Ronald Madagan
Member at Large.
ABSENT: Kevin Scott, Vice-Chairman Shawnee and Dudley Rinker, Back Creek District,
STAFF PRESENT: Mark Cheran, Zoning Administrator; Roderick Williams, Frederick
County Attorney 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 with the correction of adding Mr. Rinker last name to page 1796
and seconded by Mr. Shenk, the minutes for the September 15, 2020 meeting were unanimously
approved as presented.
Chairman Lowman inquired if there are any applications for November. Mr. Cheran replied, the
cutoff date is Friday October 23, 2020.
PUBLIC HEARING
Chairman Lowman read the request for Appeal Application #09-20 of Winchester Medical Center,
Inc. submitted by Thomas Moore Lawson, P.C., on behalf of Valley Health to appeal the decision
of the Zoning Administrator for the zoning determination issued for Site Plan #07-20 WMC –
West Campus CAB. The appeal pertaining to conformance with the proffered Generalized
Development Plan (GDP) which shows the limits of uses within each land bay and the
determination for the setbacks of the MS (Medical Support) Zoning District for streets, roads,
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Frederick County Board of Zoning Appeals
October 20, 2020
private streets and road easements. The subject property is located at the terminus of Botanical
Boulevard, west of Route 37 and is identified with Property Identification Number 53-A-68 in the
Gainesboro Magisterial District.
Mr. Cheran came forward to present the staff report. The Applicant is appealing the determinations
of the Zoning Administrator, dated July 8, 2020. The Applicant is first appealing the determination
relative to the building setbacks applicable to the proposed MS (Medical Support) Zoning District
uses (specifically, educational, research, professional, commercial, and other related support
services) on the Property. Second, the Applicant is appealing the determination that the proposed
use is not consistent with the approved Master Development Plan, #06-04, for the Property.
Mr. Cheran gave some background information on the property. The property is located at 1998
Northwestern Pike, Winchester, and is in the Gainesboro Magisterial District. The property is
vacant now and the zoning is B2 (General Business) and MS (Medical Support) Districts. Staff
presented maps of the property. This particular part of Winchester Medical Center was rezoned
in 2003 known as Winchester Medical Center West Campus. The rezoning was approved by the
Board of Supervisors in April 2003. This application rezoned 50+/- acres from B2 (General
Business) District to the B2 (General Business) District with proffers and 51+/- acres from RA
(Rural Areas) District, to the MS (Medical Support) District, with proffers. The Proffers for
Rezoning #02-03 included a General Development Plan (GDP) that identified the types of uses
allowed within each land bay on the property. Following the rezoning approval, the owner
submitted a Master Development Plan (MDP) for the property which was approved on June 30,
2004. This MDP was based on the proffered GDP. The Owner, on February 13, 2020, submitted
Site Plan #07-20, for the Property which could not be approved because of land uses and setback.
The Owner, on June 10, 2020, requested a zoning determination, with respect to the applicable
setbacks, noting the submission of the proposed Site Plan for an office and warehouse building at
a particular location on the Property.
On July 8, 2020, Mr. Cheran, Zoning Administrator, issued his determination, that (i) the
applicable setbacks for the proposed uses are as set forth for the different classifications of streets
referenced in Part 504 of the Zoning Ordinance, and (ii) that the placement of an 88,727 square
foot office & warehouse building at the indicated location is inconsistent with the MDP and the
GDP, as this land bay is designated for “office and administration” uses. Staff presented a map of
the site plan.
Mr. Cheran stated that Section 165-504.05(A) of the Zoning Ordinance establishes the structure
and parking lot setbacks for the MS District. As to structures used for educational, research,
professional, commercial, and other related support services, Section 165-504.05(A) provides:
All permitted educational, research, professional, commercial, and other related support
services shall have a minimum front yard setback of 50 feet from any urban collector street
and a minimum front yard setback of 35 feet from any urban local street.
Staff noted, the GDP provides for access, from what is now Botanical Boulevard, to the land bays
contained within the Property, to be by means of a private street. The MDP in turn identifies this
as a Private Urban Collector Road designated as Perennial Drive, extending throughout the limits
of the Property.
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Frederick County Board of Zoning Appeals
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Mr. Cheran gave the definitions from The Zoning Ordinance for an Urban Collector Street and an
Urban Local Street.
STREET, URBAN COLLECTOR – A public or private street that is constructed to the
American Association of State Highway and Transportation Officials (AASHTO)
geometric design standards for urban collector street systems.
STREET, URBAN LOCAL – A public or private street that is constructed to the American
Association of State Highway and Transportation Officials (AASHTO) geometric design
standards for urban local street systems.
Therefore, the front setback for any structure is 50 feet from the street/road designated as Perennial
Drive and 35 feet from any other road within the Property.
Furthermore, as this private street/road serves other land bays within the Property, as both the GDP
and the MDP designate, and which land bays are in either of two different zoning districts, the
Owner may not utilize a private driveway, along the lines of the Owner’s inquiry in its request for
a zoning determination. The Zoning Ordinance defines a “Driveway” as:
A private travelway for vehicles which provides access to a public street or road from a
parking space, garage, dwelling, structure or use.
Because, per the definition, a driveway is to provide access for a single use (and its associated
dwelling, structure, garage, and parking), the Owner cannot rely upon that definition for a property
with multiple land bays, each designated for a different use. The applicable setbacks, then, are
those that apply to the different classifications of streets referenced in Section 504.05(A) of the
Zoning Ordinance.
Mr. Cheran stated the GDP and the MDP identify the types of uses allowed within the land bays
on the Property. The Owner submitted the proposed Site Plan for the Property, but the proposed
Site Plan was not approvable, as the use identified on the proposed Site Plan did not conform with
the designations on the GDP and on the MDP.
Staff noted, specifically, the use identified on the proposed Site Plan, an 88,727 square foot office
& warehouse building, is clearly located within a land bay identified on the GDP and on the MDP
as being for “office & administration”. The GDP and the MDP both otherwise allow warehouse
uses, but only within the land bay immediately to the south of the location for the proposed
structure shown on the submitted Site Plan. Warehouse buildings are permitted within the land
bay area identified for shared services distribution center.
Staff mentioned, the MDP depicts a private urban collector road and bridge crossing Route 37,
which is apparently no longer part of the overall site, but which the Owner should otherwise show
on the site plan. The rezoning also proffered to construct a landscaped, open, green visual focal
link and park located at a roundabout, the Owner did not construct this feature (focal point at
overpass roundabout).
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Frederick County Board of Zoning Appeals
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Mr. Cheran is requesting that the Board of Zoning Appeals affirm the decision of the Zoning
Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-
502.04A, and the proffers assigned to Rezoning #02-03 for Winchester Medical Center-West
Campus.
No questions for Mr. Cheran. Mr. Cheran did state that Mr. Thomas Lawson is here representing
the Applicant Winchester Medical Center.
Mr. Lawson came forward and said that Mr. Greg George, with Valley Engineering and Mr. Mark
Baker, Winchester Medical Center would also be presenting comments.
Mr. Lawson passed out some handouts. Mr. Lawson reiterated the reason for the appeal. Mr.
Lawson started with the private road issue that is located on 109 acres and the County is deeming
the road as an urban collector road or an urban local street. Winchester Medical Center cannot
proceed with the site plan because the County requires setback from the road (private
drive/driveway) to the building. Mr. Lawson noted that Winchester Medical Center wants to
access the building by both sides. There is no thru street. The property does attach to Botanical
Boulevard and sort of the interchange but VDOT required the WMC to gate that entrance and post
private drive signs. There are rules and proffers in place that we cannot access this road. WMC is
looking to build an office/warehouse (equipment). The private road is just merely access to our
WMC building.
Mr. Lawson stated the GDP is referred to an MDP in the Zoning Ordinance. A Conceptual Plan is
a future plan. This plan should inform people of what is coming and to look at SWSA and roads.
The GDP from 2003 has imposed restriction on the property such as land bays, subdivided tracts
and land use and specific use in this District. Mr. Lawson requested that Board look at the zoning
ordinance and read what makes up the MDP and a GDP. Mr. Lawson mentioned that the County
states this is an urban street. Urban street is where there is multiple houses and multiple buildings.
That is not what is intended for this property. WMC is wanting a part office building and in the
back medical warehouse. The County also states in zoning determination letter that a private
driveway is not for multiple uses. WMC property does not have multiple uses.
Mr. Lawson started going through the exhibits and explaining his interpretation. The ordinance
amendment was approved on April 9, 2003 by the BOS and almost everyone voted yes to this
Ordinance Amendment which consist of 50.0540 acres from B2 to B2 with proffer and 51.9676
acres from RA to MS . The rezoning proffer doesn’t show restriction to allowed uses. Mr. Lawson
referred to the GDP revised on 3/4/03 which was part of the rezoning which has land bays,
subdivision of tracts of land and etc. The landscaping plan is on page 7. There is a flexibility with
this plan because the buildings are not laid out in that design. The GPD shows a major collector
road (which hasn’t been built) that is where we would have to base are setback off of. Also, on
GDP is a private street.
We concur that the MDP shows allowed uses but in reading the general notes it states uses shown
in tabulations are subject to change to other allowed uses by right in the zoning ordinance without
revision of this MDP. The County acknowledge that the uses could change. The MDP also show
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Frederick County Board of Zoning Appeals
October 20, 2020
a Perennial Drive is a private road.
Exhibit 4 is an MDP which is the most recent and shows the zoning and what WMC proposes to
be built.
Exhibit 5 was submitted and approved by the County so WMC could build the private road. On
the plan a sign was required, the sign states private road no thru traffic and is gated. This road was
built on a 50-foot access easement not dedicated to the public. This was built for WMC facility.
Exhibit 6 is how to connect to Botanical Street. Mr. Lawson read VDOT comments. VDOT states
this facility is on private road and VDOT will not maintain the road. This private road is where
the County wants WMC to do the setback.
Exhibit 7 is the zoning determination letter from Mr. Cheran. The letter does give the definition
of Street Urban Local and the required setback. The setback that Mr. Cheran gave in the letter was
from the Zoning Ordinance 165-504.05(A) Structure and parking lot setback regulations. These
setbacks that was given are for commercial buildings from an urban collector/urban local street,
not from a private driveway. Mr. Lawson mentioned that Ordinance §165-101.02 Driveway is
defined as a private travelway for vehicles which provides access to a public street or road from a
parking space, garage, dwelling, structure or use.
Mr. Lawson read from Staff letter that furthermore, this private street/road easement serves other
land bays within the proffered GDP and approved MDP #06-04. Mr. Lawson stated that
GDP and MDP cannot create subdivided tracts or land bays.
Next, Mr. Cheran, wrote that the proposed 88,727 square foot site plan submitted was for an office
& warehouse and was located on a land bay. This submission does not conform with the MDP
#06-04. This MDP #06-04 was approved on May 18, 2004. The approved MDP proposed a use
of office and administration. Mr. Lawson disagrees with this proposed use of the property to build
an office and distribution center is allow by-right. The Representative states the Frederick County
Code 165-504.02, which allow property within MS District to be used for professional and
commercial support services and other related uses, including warehousing, medical and allied
health services.
Mr. Lawson pointed out that Frederick County Code 165-801.05(A) an MDP is a conceptual plan
which shows the location and functional relationship between streets and land uses. The MDP
cannot create land bays or place restrictions of use on the property.
The letter expresses that Part 504 of the Ordinance states that the regulations for Medical Support
(MS) District warehousing, medical and allied health is an allowed use and is further defined in
Part 101 for a structure or facility designed for the storage of medical supplies, equipment furniture
and fixtures associated with medical and allied health service. In order to have this site plan
approved this would require front setback and the approved MDP requirements of the land bay
uses. Mr. Lawson gave his interpretation commenting that a restriction on the by-right use of
property can only be achieved through enactment of a zoning ordinance or by voluntary proffers
accompany a zoning ordinance. The MDP is an administrative decision, not a legislative act, and
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cannot restrict by-right uses. The rezoning request of April 17, 2020 did not restrict the by-right
uses of the property.
Exhibit 8, Mr. Lawson provided definition and word usage of different types of roads, the setback
requirements and permitted uses. The road in question, should be considered as a driveway.
Next is the Zoning Ordinance requirement for an MDP. When submitting an MDP, a conceptual
plan, is required. The conceptual plan should show location and functional relationship between
streets and proposed land uses.
Exhibit 9, Mr. Lawson provided the minutes of the Board of Supervisors of June 9, 2004. The
minutes states that the proposed uses on the property include restaurant, hotel, and retail; however,
there is no guarantee of any of those uses at this time. Mr. Lawson read the staff report dated April
3, 2003, Section Intended Uses .
Exhibit 10 was presented by Mr. George with Valley Engineering. These are site comparison to
our project. The three sites are The Village at Orchard Ridge, Trex Center, and Round Hill
Crossing. The Village at Orchard Ridge is zoned MS but the usage is different than our projects
so setbacks would change. The setbacks are 25 feet from public urban street, and front yard
setback of 20 feet from any private urban local road and at the end of National Lutheran Boulevard,
the street becomes a private road. The Trex Center zoning is B2 and the front yard setback is 35
ft from a collector or minor streets, and this project has a private street with access easements and
street with dedicated right-of-way then turns to a private road. Round Hill Crossing is zoned B2
and is 50 feet from artillery highway (Rt 50) and Walmart Drive is private street with access
easement no setback required There is multiple buildings on this site.
Chairman Lowman ask if they pulled the GDP or MDP for each site. Mr. George said the Village
at Orchard Ridge had nothing associated as far as the GDP or MDP. Walmart did have an MDP
and GDP and the Trex Center did not have a GDP or MDP. Mr. Lawson corrected Mr. George by
saying he built the Trex Center and yes there was a GDP and MDP.
Mr. Lawson is asking the Board to overturn the Zoning Administrator decision as far as the
driveway is not a street and appealing that an GDP and MDP is a conceptual plan and does not
restrict or limit the property.
Mr. Mark Baker with Valley Health System came forward to speak in favor of project. Since the
COVID19 this project is critical because this would house medical supplies and administrative
support etc. At this point, WMC is facing a hardship and WMC has leased property in the City and
surrounding area that we serve for additional space. This warehouse would be a distribution center
of critical medical supplies, personal protective equipment and critical equipment and
administrative support space.
Mr. Shirley ask the question wouldn’t it be simpler to revise site plan and amend the GDP with
the Board of Supervisors. Mr. Lawson responded the WMC had 30 days to appeal the zoning
determination letter and if we didn’t then that letter becomes law, and this is binding on your
property. WMC has tried to change the MDP but we are unable to do that because of the wording
on the documents and this has restricted the property.
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Mr. Shirley pointed out that now there is only one use now but in the future other business might
move in with multiple uses. Mr. Lawson mentioned if this happened then there would need to
create road or a dedicated street then setback would be required.
Mr. Shirley inquired if the gate would ever be removed. I understand now that VDOT says no.
Mr. Lawson replied as of now even though we built the road and the property is ours that cannot
be accessed. Commonwealth Transportation Board put restrictions on the private road. Maybe in
the future.
Wouldn’t it be simpler just move the building to the area that is zoned for warehouse Mr. Madigan
inquired? Mr. Lawson stated that WMC doesn’t believe that a matter of law that states restriction
and limits the property. The conceptual plan was just representation of where building and road
could be placed. This plan is a flexible plan.
Chairman Lowman indicated that the color MDP on page 14 shows when the roads were
constructed there was stormwater requirement and that pond is taking up most of the MS zoning.
There is no way to fit a warehouse in that area. Mr. George replied the MDP has not been followed
since the road design and stormwater design. Mr. Lawson clarified that the 2003 MDP was
modified about a year later and then modified again in 2014. Mr. Lawson stated if you look at the
earlier plan there is not stormwater retention area. Today, rules and the regulations for stormwater
retention and treatment of water has changed.
Chairman Lowman stated the Board here today is to act on the zoning determination letter only
from Mr. Cheran and to see if he has complied with the Frederick County Code.
Mr. Lawson states this plan is almost 25 years old and this plan was concept. The Applicant has
tried submitted a revised MDP along with the site plan but is being held up in Planning Department.
When Frederick County puts restrictions on MDP of allowed uses on the property, I think that is
unconstitutional act. The Applicant is only asking that the Board be able to remove the restriction
as far as allowed use and the setback requirement.
Mr. Rod Williams, County Attorney came forward to present the County’s side which is to uphold
the decision of the Zoning Administrator. What Mr. Lawson is trying to accomplish is for this
Board to remove the usage on the parcel and the setback from a private street. Also, Mr. Williams
explained his point of view of the exhibits.
Mr. Williams explains that exhibit one is the 2003 rezoning and proffer. This is an ordinance and
the ordinance are a legal binding agreement. This document also shows how the Board of
Supervisor voted. Mr. Williams read the paragraph under the General Development Plan section.
This section states that the GDP dated September 2002 of sheets 5 & 6 shall be in conformity with
the GDP and County regulation. Looking at the GDP it shows what usage and shows the location
of the buildings. This proffer statement has legal effect and the only people can change this is the
Board of Supervisors. Currently, WMC filed a rezoning in 2019 before the COVID19 began. Since
2003, WMC has not revised the GPD or MDP. Mr. Lawson also provided proffer statement with
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Frederick County Board of Zoning Appeals
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several dates on the first page. The revised proffer has very similar language as the 2003 proffer.
Under the General Development Plan, the language states Applicant/Owner must submit an MDP
and be in conformance with all County regulations
Exhibit 1 is the proffer statement and the GDP.
Exhibit 2 is a larger version of the GDP from Exhibit 1. This exhibit does show the location of
the proposed uses and shows a detail of a private street.
Exhibit 3 is the MDP. Mr. Lawson only provided sheet 2. Under general notes it states uses show
in tabulations are subject to change to other allowed uses by right in the zoning ordinance without
revision of this MDP. Does this mean we can change the use to another use and also change
location of a particular buildings? This is exhibit is missing page 1. This first page list the acreage
and allowed use on the property.
Exhibit 4 is a draft of the Final Master Development Plan. This document is not approved by the
County. This does show the ponds.
Exhibit 5 document that is not approved by the County.
Exhibit 6 This is an email from Timothy Rhodes, VDOT Land Engineer dated May 1, 2017. This
email states that the proposed facility will be located on a private property not maintained by
VDOT. We have no overall objection to this privately maintained street. VDOT deemed this
driveway a private street.
Exhibit 7 This is Mr. Cheran zoning determination letter enlarged. This is where Mr. Lawson
points out his discrepancy to Mr. Cheran interpretation.
Exhibit 8 Frederick County Ordinance Definitions and word usage §165-101.02, Structure and
parking lot setback regulations §165-504.05, permitted uses §165-504.02 and Contents of Master
Development Plan §165-801.05 are copied for you. The Contents of a Master Development plans
is highlighted and states that an MDP shall contain a conceptual plan, showing the location and
functional relationship between streets and land uses. Looking at number one clearly states the
conceptual plan will show the location and arrangement of proposed uses.
Exhibit 9 is a two-part exhibit. The first is the Minutes from the Board of Supervisors meeting of
June 9, 2004 for the Master Development Plan . In the meeting minutes, it states what proposed
uses are to be on this parcel. The rezoning and the proffer are what is binding, and the Planner
can’t approve changes of location or allowed uses only the Board of Supervisor can. The second
part of this exhibit is staff report for Rez. #02-03 dated April 2, 2003. The staff report clearly
states the allowed use and location.
Exhibit 10 is a site comparison of three projects. Village at Orchard Ridge, Trex, and Round Hill
Crossing. The comparison of Village at Orchard Ridge there is a building that is 7 ft setback from
the sidewalk which is an error. The last two sites are not legible, and we are unable to see how the
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October 20, 2020
roads are labeled. A GPD and the MDP was not provided to the Board. Mr. Williams is not sure
if these Plans was provided at the time of submission to the County. The GDP & MDP was not
provided so we can’t see how the street are labeled such as private driveways and private street.
911 service gives a street name to roads and private driveways but that doesn’t mean since they
have a street name that it is a VDOT maintain road.
Mr. Williams pointed out the MDP labeled the road as private urban collector road and the GDP
labeled it as a private street. Upon approval of the GDP and MDP, Frederick County had
definitions in place for driveway, road and street. Mr. Williams gave the definitions of driveway
which is a private travelway for vehicles which provides access to a public street or road from a
parking space, garage, dwelling, structure or use. Mr. William’s gave the definition of road. Road
is a street dedicated to or owned by Frederick County or VDOT also privately owned rights-of-
way which serve as the principal means of access to move to more than one property. Mr.
William’s mentioned that the road definition is almost identical to the street definition. WMC
chose to call it a road. The engineer had access to the County Codes. This driveway on a
commercial parcel is approximately 3,600 ft long. Mr. Williams noted that the hotel, and the surgi-
center are on their individual parcels and have private roads between the parcel. These private
roads access multiple properties.
The setback for the office/warehouse main building complies with the setback. The problem with
setback issue is the building that is label maintenance storage entrance. This doesn’t meet the
setback and that could be fixed. Mr. William’s explained that WMC hired the professional
companies to prepare and submit plan to County. If WMC has issues with consultants, they need
to contact them or hire a law firm. WMC shouldn’t ask the County to overturn this decision
because this was an engineering error.
Mr. William concluded by reading a Virginia Supreme Court case LeMarr vs Board of Zoning
Appeal City of Lynchburg.
Mr. Shirley questioned what’s the designated use in the GPD for the Surgi Center. Mr. William’s
replied, if it was designated probably retail/commercial. It probably was not designated as a
medical use.
Mr. Shirley needed clarification on the two separate plans. Mr. Williams replied this property is
split zoned. The front of the Surgi Center is close to Route 50. The Surgi Center is allowed use in
the B2 District.
Mr. Shirley needed clarification under the Master Development Plan General Notes section
subject to change. Mr. Williams replied to the questions.
Mr. Lawson came forward again. The Surgi Center could be considered retail/commercial or
convenience commercial restaurant/conference center depending on what plan you look at. The
Applicant would like to know the zoning. WMC is in conformity. WMC has amended their GDP
once.
Mr. Lawson pointed out that the staff report and meeting minutes knew what substantial
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conformity means. A planner suggested that the BOS meeting minutes for WMC to proffer
commercial use. WMC said no wants to be flexible with the allowed uses. Substantial conformity
is when you do a rezoning and then a GDP or MDP is provided to the County and you must comply
with those plans. If there is a change in plan, then you need to do a proffer amendment.
Chairman Lowman said if there is anyone in favor of Mr. Cheran letter or in opposition come
forward.
Closed Public Hearing
Discussion
Mr. Shirley expressed his concern. I believe this is two separate issues one being the setback and
the other zoning. I would like recommended to have two separate votes on this. Mr. Cheran
replied yes this can be done in two votes.
On a motion made by Mr. Shirley and seconded by Mr. Shenk to have two separate votes on the
two issues being setback and the allowed zoning use in this district and it was unanimously
approved.
Chairman Lowman said let’s discuss the setback requirement from the road.
The first issue is the setback requirement from the road.
Mr. Shirley commented to uphold Mr. Cheran determination on setback requirements. In the
future, the road will get developed. That road will lead to multiple uses and business. If the road
is left a driveway, that could be built any shape or form, and this might hinder the road in the future
as well as this doesn’t conform the MDP.
Mr. Shirley made a motion to uphold Mr. Cheran setback requirement from the road and Mr. Shenk
seconded the motion and it was unanimously vote, to uphold Mr. Cheran decision.
The second issue is the allowed zoning in the district.
Discussion
Mr. Shirley explained that MDP General Notes section state subject to change to other allowed
uses in the M2 District. Mr. Shirley commented that he thinks Mr. Cheran decision should be
overturned.
Chairman Lowman commented that no one can predict the future. We are looking at an MDP over
16 years ago. Things change over time such as stormwater run-off mandate and codes. It would
be in the best interested of the property owner to monitor the property and documents affiliated
with the parcel, so the property owner is up to knowledgeable when it is ready to be developed.
Mr. Shirley made a motion to overturn Mr. Cheran zoning determination letter as far as the allowed
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October 20, 2020
uses. The motion didn’t pass.
A motion was made by Mr. Shenk to uphold Mr. Cheran zoning determination letter as far as the
allowed uses on the property and Mr. Cline seconded the motion. The vote was four to one with
two members absent.
Mr. Cheran gave an update on the Williamson case. The case was push back because of COVID.
Mr. Cline made a motion to adjourn and was seconded by Mr. Shenk at 5:20 p.m.
_________________________
Eric Lowman, Chairman
_________________________
Pamala Deeter, Secretary
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Board of Zoning Appeals
Agenda Item Detail
Meeting Date: December 15, 2020
Agenda Section: Public Hearings
Title: Appeal Application #11-20 of Bryan Henry
Attachments:
BZA12-15-20APP11-20.pdf
14
APPEAL APPLICATION #11-20
BRYAN M. HENRY
Staff Report for the Board of Zoning Appeals
Prepared: November 24, 2020
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:
December 15, 2020
Public Hearing Action Pending
LOCATION: The subject property is located at 639 Reliance Road, Middletown, Virginia.
MAGISTERIAL DISTRICT: Opequon
PROPERTY ID NUMBER: 91-A-77
PROPERTY ZONING & USE: Zoning: RA (Rural Areas)
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RA (Rural Areas) Use: Residential
East: RA (Rural Areas) Use: Residential
South: RA (Rural Areas) Use: Residential
West: RA ( Rural Areas) Use: Residential
APPEAL: The Applicant is appealing the decision of the Zoning Administrator in the administration
of the Frederick County Zoning Ordinance (Ordinance) in determining compliance and permitted
uses in the RA (Rural Areas) Zoning District.
REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to
Frederick County Zoning Ordinance, Chapter 165, Section 165-401.02 Permitted uses within the RA
(Rural Areas) Zoning District.
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STAFF COMMENTS: County staff received a complaint of an excavating business operating on
the property. Staff inspection of the property on July 9, 2020, revealed an excavating company
(B&D Excavating) operating and storing equipment on the property. Section 165-401.02 of the
Ordinance provides for permitted land uses within the RA Zoning District. An excavating company
is not a permitted use within the RA (Rural Areas) Zoning District. (Enclosed pictures) The
Applicant was cited under the above-referenced section of the Ordinance for operating an excavating
company in the RA (Rural Areas) Zoning District. The notice of violation, dated August 11, 2020, is
attached for the Boards reference.
Frederick County allows excavating companies to operate within the B3 (Industrial Transition), M1
(Light Industrial), and M2 (General Industrial) Zoning Districts. The Applicant has a viable
resolution of this violation. This may be accomplished by removing the business all the equipment,
company vehicles, and construction material from the property, to one of the above-referenced
Zoning Districts in compliance with all County regulations. The Zoning Administrator’s
interpretation of Section 165-401.02 of the Ordinance is correct as the interpretation that a
excavating business occurring on this property is not a permitted use within the RA Zoning District.
STAFF CONCLUSIONS FOR THE DECEMBER 15, 2020 MEETING: Staff is requesting that
the Board of Zoning Appeals affirms the decision of the Zoning Administrator in the administration
of the Frederick County Zoning Ordinance, Chapter 165, Section 401.02. That the excavating
business use is operating illegally. An excavating company is not an allowed use within the
RA (Rural Areas) Zoning District. Therefore, this use shall be discontinued and removed from the
property.
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WARREN COUNTYVIRGINIA
91 A 77
668RELIANCE RD
786RELIANCE RD
713RELIANCE RD
733RELIANCE RD
694RELIANCE RD
746RELIANCE RD
736RELIANCE RD
572RELIANCE RD
550RELIANCE RD
577RELIANCE RD
566RELIANCE RD
563RELIANCE RD
835HUTTLE RD
511RELIANCE RD
439RELIANCE RD
383RELIANCE RD 1019HUTTLE RD
1015HUTTLE RD
1291HUTTLE RD 981HUTTLE RD
841HUTTLE RD
R
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A
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Application
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Frederick C ounty Planning & Development107 N Kent StWinchester, V A 22601540 - 665 - 5651Map Created: October 13, 2020
Middletown
HEADLEY RD
HUTTLE RDW
A
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SID
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DEPENDENCE LNR
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0 600 1,200300 Feet
APP #11-20
APP # 11 - 20: Bryan HenryPIN: 91 - A - 77AppealZoning Map
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WARREN COUNTYVIRGINIA
91 A 77
668RELIANCE RD
713RELIANCE RD
786RELIANCE RD
733RELIANCE RD
694RELIANCE RD
746RELIANCE RD
736RELIANCE RD
572RELIANCE RD
550RELIANCE RD
577RELIANCE RD
566RELIANCE RD
563RELIANCE RD
835HUTTLE RD
511RELIANCE RD
439RELIANCE RD
383RELIANCE RD 1019HUTTLE RD
1015HUTTLE RD
1291HUTTLE RD 981HUTTLE RD
841HUTTLE RD
R
E
LI
A
N
CE
R
D
Application
Parcels
Sewer and Water Service A rea µ
Frederick C ounty Planning & Development107 N Kent StWinchester, V A 22601540 - 665 - 5651Map Created: October 13, 2020
Middletown
HEADLEY RD
HUTTLE RDW
A
Y
SID
E MIL
L L
N
DEPENDENCE LNR
E
LIA
N
C
E R
D
§¨¦81
0 600 1,200300 Feet
APP #11-20
APP # 11 - 20: Bryan HenryPIN: 91 - A - 77AppealLocation Map
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Board of Zoning Appeals
Agenda Item Detail
Meeting Date: December 15, 2020
Agenda Section: Public Hearings
Title: Variance Request #12-20 of Keith R. Tump
Attachments:
BZA12-15-20VAR12-20.pdf
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VARIANCE APPLICATION #12-20
KEITH R. TUMP
Staff Report for the Board of Zoning Appeals
Prepared: December 4, 2020
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:
December 15, 2020
Public Hearing; Action Pending
LOCATION: The property is located on Southwest corner of intersection with Mineral Street
(Route 635) and Cougill Road (Route 634), Middletown, Virginia.
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER: 91-A-122
PROPERTY ZONING & USE: Zoned: RA (Rural Areas)
Land Use: Vacant
ADJOINING PROPERTY ZONING & USE:
North: RA (Rural Areas) Use: Vacant
South: RA (Rural Areas) Use: Vacant
East: CSX R-O-W Use: Rail Line
West RA (Rural Areas) Use: Residential
VARIANCE REQUESTED: The Applicant is requesting for a 20-foot front yard variance to a
required 60-foot front yard setback which will result in a 40-foot front yard setback adjacent to Mineral
St. (Route 635) and a 15-foot left side yard variance to a required 50-foot left side yard setback which
will result in a 35-foot left side yard setback adjacent to the railroad R-O-W for a dwelling with a garage
to be built in two (2) phases. Phase 1 is a garage with an apartment and phase 2 is an attached dwelling.
REASON FOR VARIANCE: The property cannot meet the current setbacks due to the size of the
property and location of the dwelling.
STAFF COMMENTS: Frederick County adopted zoning in 1967. The Frederick County historical
41
Variance #12-20 – Keith R. Tump
Page 2
December 4, 2020
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, along Mineral Street
(Route 635) and Cougill Road (Route 634), 15-feet for the side yards and 50-feet for the rear yard.
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 along Mineral Street.(Route 635) and Cougill Road (Route 634) , 50-
feet to the rear, and 50-feet to the side adjacent to the railroad R-O-W.
The Zoning Ordinance for the propose of determining setbacks for a property that fronts on two (2)
roads/streets, is that the shortest front is the front yard of the property. This property has two (2)
fronts along Cougill Road (Route 634) and Mineral Street (Route 635). Therefore, Cougill Road
(Rt. 634) is the shortest front and is the front of this property. The Applicant is requesting a 20-foot
front yard variance to a required 60-foot front yard setback which will result in a 40-foot front yard
setback and a 15-foot left side yard variance to a required 50-foot left side yard setback which will
result in a 35-foot left side yard setback to allow for the construction single-family dwelling with a
garage. Should this variance be granted, the building setbacks for this property would be 60- foot
front along Cougill Road. (Route 634), 40-foot along Mineral Street (Route 635), 35-foot left side,
along the railroad R-O-W and 50-foot rear.
STAFF CONCLUSIONS FOR THE DECEMBER 15, 2020 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
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Variance #12-20 – Keith R. Tump
Page 3
December 4, 2020
current setbacks of the RA (Rural Areas) Zoning District may be justified.
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Middletown
91 A 122
170COVILLE ST
160COVILLE ST 141COVILLE ST
131COVILLE ST
150COVILLE ST
140COVILLE ST
130COVILLE ST
120COVILLE ST
110COVILLE ST
118MINERAL ST
118MINERAL ST
118MINERAL ST
100COVILLE ST
229COUGILL RD
279COUGILL RD
COUGILL RD
MINERAL STApplication
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MiddletownMAIN STC
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£¤11
0 120 24060 Feet
VAR #12-20
VAR # 12 - 20: Keith R. TumpPIN: 91 - A - 122Front and Left Side Yard VariancesZoning Map
44
Middletown
91 A 122
170COVILLE ST
160COVILLE ST 141COVILLE ST
131COVILLE ST
150COVILLE ST
140COVILLE ST
130COVILLE ST
120COVILLE ST
110COVILLE ST
118MINERAL ST
118MINERAL ST
118MINERAL ST
100COVILLE ST
229COUGILL RD
279COUGILL RD
COUGILL RD
MINERAL STApplication
Parcels µ
Frederick C ounty Planning & Development107 N Kent StWinchester, V A 22601540 - 665 - 5651Map Created: November 19, 2020
MiddletownMAIN STC
O
U
GILL R
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VALLEY PIKEMINERAL STCHAPEL
RDFIR
ST S
TMEADOW TRACE LNCOVILLE STSKIRMISHER LN§¨¦81
£¤11
0 120 24060 Feet
VAR #12-20
VAR # 12 - 20: Keith R. TumpPIN: 91 - A - 122Front and Left Side Yard VariancesLocation Map
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