BZA 05-19-20 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 May 19, 2020.
PRESENT: Eric Lowman, Chairman, Red Bud District; Kevin Scott, Vice -Chairman Shawnee
District; Reginald Shirley III, Opequon District; Dudley Rinker, Back Creek, Dwight Shenk,
Gainesboro District; John Cline, Stonewall District and Ronald Madagan Member at Large.
ABSENT:
STAFFPRESENT: 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. Shenk and seconded by Mr. Cline, the minutes for the June 18, 2019
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. Scott 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. Shirley 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. Vice -Chairman Scott 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.
1779
Frederick County Board Zoning Appeals
Mr. Shenk 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. Scott 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. Shenk and seconded by Mr. Scott 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 June. Mr. Cheran stated no, the
cutoff date is Friday, May 22, 2020.
PUBLIC HEARING
Chairman Lowman read the request for Variance Request #01-20 of Jim Nichols Construction,
submitted for a 40 -foot front yard variance to a required 60 -foot front yard setback which will
result in a 20 -foot front yard setback for a single-family dwelling. This property is located at 402
Brown Lane, Clear Brook, and is identified with Property Identification Number 33-A-28 in the
Stonewall Magisterial District.
Mr. Cheran came forward to present the Staff report. Staff presented a map outlining the property
showing where a boundary line adjustment was done before applying for the variance. The
property was created in 1995 and is located at 402 Brown Lane, in Clear Brook. The parcel has a
single-family dwelling on it. The area is zoned RA and is residential use. Mr. Cheran noted the
adjoining properties are residential. The RA (Rural Areas) District setback in 1995 were 60 -feet
for the front, 50 -feet side yards, and 50 -feet for the rear yard. Mr. Cheran stated even with
boundary line adjustment the property area for building was limited by drainfield and the utility
location. Staff noted that the Applicant does not meet the requirement of a 60 -feet setback for a
front porch. Mr. Cheran said the Applicant has removed the mobile home.
Staff reiterated the Applicant's request for variance of setback.
Mr. Cheran concluded by reading The Code of Virginia 15.2-2309 (2) and the 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
1780
Frederick County Board Zoning Appeals
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. Rinker clarified that the Applicant did do the boundary line adjustment but was not able to
meet
the current setback for a dwelling with a porch.
Chairman Lowman asked the Applicant to come forward if he had additional comments. The
Applicant stated no comments to add.
Chairman Lowman opened the floor to anyone in favor or opposition of the application.
Ms. Dorothy Brown came forward and was not in favor of the variance but once Chairman
Lowman clarified the request she understood.
Public Hearing Closed
Discussion/Comments
Mr. Madagan noted with granting this request the area would be enhanced. The Applicant is at
the end of the street.
On a motion made by Mr. Cline to approve as presented Variance Request 01-20 Jim Nichols
Construction and was seconded by Mr. Shenk, it was unanimously approved.
Public Hearing
Chairman Lowman read the request for Variance #03-20 Mark Bruns submitted for a 6 -foot
left side yard variance to a required 10 -foot left side yard setback which will result in a 4 -foot
left side yard setback for a garage. This property is located at 225 Stafford Drive Winchester and
is identified with Property Identification Number 54E -4-B-6 in the Redbud Magisterial District.
Mr. Cheran came forward to present the Staff report. Mr. Cheran presented a map showing the
properties surrounding the Applicants are residential all but one to the west which is a County
Park.
Staff mentioned the creation of property was in 1963 as shown on the plat and the subdivision was
approved by the County on December 12, 1963. Mr. Cheran stated the recorded plat shows the
property setback for the front is 25 -ft. There is no setback for the side and rear of the property.
Zoning was adopted in Frederick County in 1967. The historical map shows this property was
zoned R-2 (General Residential) in 1967. The property setback lines at the adoption of the
Frederick County Zoning Ordinance were 35 -feet for the front and 10 -feet for the side yards and
35 -feet to the rear. The Ordinance was amended in 1989 to change the R-2 Zoning District to the
1781
Frederick County Board Zoning Appeals
current RP (Residential Performance) Zoning District. The property setback for the RP Zoning
District are 35 -front, 10 -feet sides and 25 -feet rear.
Staff reiterated the Applicant's request for variance of setback for a garage.
Mr. Cheran concluded by reading The Code of Virginia 15.2-2309 (2) and the Code of Frederick
165-
1001.2 states that no variance shall be granted unless the application can meet the following
requirements:
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:
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.
The relief or remedy sought by the variance is not available through a special
exception or the process for modification of a zoning ordinance.
Chairman Lowman asked the Applicant to come forward and if he had additional comments. The
Applicant stated he had no comments to add.
Chairman Lowman opened the floor to anyone in favor or opposition of the application.
Mr. Cheran mention that we did receive 3 or 4 emails in favor of this request.
Chairman Lowman opened the floor to anyone in favor or opposition of the application.
Public Hearing Closed
Discussion/Comments
On a motion made by Vice -Chairman Scott to approve as presented Variance Request 03-20 of
Mark A. Bruns and was seconded by Mr. Shenk, it was unanimously approved.
Public Hearing
Frederick County Board Zoning Appeals
1782
Chairman Lowman read the request for Variance #04-20 of Rocco Falcone Construction,
submitted for Jill Smialek for a 30 -foot right side yard variance to a required 100 -foot right side
yard setback which will result in a 70 -foot right side yard setback for a dwelling. This property
is located at 361 Bushv Ridae Drive, Star Tannery and is identified with Property Identification
Number 69-2-18 in the Back Creek Magisterial District.
Mr. Cheran came forward to present the staff report. Staff reported that the deed and subdivision
was created in 1972. The property is RA (Rural Areas) and is primarily used for residential and
so are some of the adjoining properties. The property to the West is vacant. The property does not
have a building restriction line assigned to it and would need to meet the current setbacks. In 1972,
the map of this property was zoned A-2 (Agricultural General) . At the time of adoption of the
zoning ordinance the setbacks were 35 -feet for the front, 15 -feet for the side yards and 50 -feet for
the rear yard. The Ordinance was amended in 1989 to change the A-2 Zoning District to the current
RA (Rural Areas) District. The Board of Supervisors amended the setback 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 left and right sides.
Staff reiterated the Applicant's request for a variance of the setbacks for a single-family dwelling.
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.
Chairman Lowman asked the Applicant to come forward and if he had additional comments. The
Applicant stated that the proposed house site would maintain the view. Also, the Applicant's
concern was floor elevation, ridge lines and keeping the cost down for homeowner.
Chairman Lowman opened the floor to anyone in favor or opposition of the application.
1783
Frederick County Board Zoning Appeals
Public Hearing Closed
Discussion/Comments
Mr. Madagan mentioned he drove by the property and couldn't see the proposed house site from
the road.
On a motion made by Dudley Rinker to approve as presented Variance Request 04-20 of Rocco
Falcone Construction and was seconded by Vice -Chairman Scott, it was unanimously approved.
Public Hearing
Chairman Lowman read the request for Variance #05-20 of Michael and Jill Allen, submitted
for an 88 -foot rear yard variance to a required 100 -foot rear yard setback which will result in a
12 -foot rear yard setback, and also, submitted for a 23 -foot left side yard variance to a required
50 -foot left side yard setback which will result in a 27 -foot left side yard setback and also a right
side yard variance submitted for a 95 -foot right side yard variance to a required 100 -foot right
side yard setback which will result in a 5 -foot right side yard setback for a dwelling. This
property is located on Route 622, approximately 8 miles southwest on Cedar Creek Grade and is
identified with Property Identification Number 60-A-82 in the Back Creek Magisterial District.
Mr. Cheran came forward to present the Staff report. The parcel is RA (Rural Areas) District and
the land use was a community center. The adjoining properties are RA and residential use. The
Applicant wants to preserve the structure. Staff noted it is listed on the historical landmark book.
Mr. Cheran presented a map and mentioned that this property is small is size. The parcel is
under an acre.
On the deed the property was created in the 1870's and Frederick County approved the
subdivision. The parcel does not have building restriction line so the Applicant would need to
meet the current RA District setback. Mr. Cheran stated the historical maps dated 1972, the
property was zoned A-2 (Agricultural General). The property setback lines at the adoption of the
Ordinance were 35 -feet for the front, 15 -feet for side yards and 50 -feet for the rear yard. Upon
Ordinance amendment in 1989 the property went from A-2 Zoning District to the current RA
Zoning District. Again, on February 28, 2007 the Board of Supervisors amended the setbacks
for the RA Zoning District. The current setbacks for the RA Zoning District are 60 -feet to the
front, 50 -feet to the rear, and 50 -feet left side and 100 -feet right side.
Staff reiterated the Applicant's request for variance of setbacks for a single-family dwelling.
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.
1784
Frederick County Board Zoning Appeals
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.
Staff stated that a letter was received by a neighbor property opposing the request.
Chairman Lowman asked if anyone had questions for Mr. Cheran. Mr. Rinker aske is there any
restriction on this property since the building is on the historical register. Staff replied no.
Chairman Lowman asked the Applicant to come forward and if he had any additional comments.
The Applicant gave some history about the property. John and Pricilla Snapp sold the half acre
lot to the Opequon School District. A school was constructed. Then 1951 Frederick County sold
the building at auction a Mr. Paul Rhodes purchased the property. Mr. Rhodes gifted the property
to the Mt. Airy Community Center Trustees. The Applicant stated the variance are requested
because the property is on a half an acre and can't meet the current setbacks. Mr. Allen's intention
is to restore the building and add an addition for the use of a residential home. The structure right
now was limited area to build. The structure is situated on the back portion of the property and
we cannot meet the current setbacks.
Chairman Lowman clarified that Mt Airy Trustees still own the property and Mr. and Mrs. Allen
looking to buy property if a variance is granted. The Applicant said that is correct.
Chairman Lowman opened the floor to anyone in favor or opposition of the application.
Mr. Jo Snapp, Trustee spoke in favor of the variance request. The Board of Trustee would like
to see structure preserved.
Mr. Shirley asked what the intent of the Community Center is if the Applicant doesn't get the
variance. Mr. Snapp answered that nothing has been done on the property for the last 20 to 30
years. Several people have tried to restore the building but there are no monetary funds.
Mrs. Tamari Ralls came forward to oppose the variance request. Ms. Ralls concern was the 12 -
foot rear setback and the 5 -foot right side setback. One of the reasons is she is a farmer and the
liability of cutting the hay where the equipment could throw a rock out and damage or hurt
someone. A child running in front of equipment. If the Applicant had some maintenance on the
right side of the house, then the maintenance company would be engrossing on her property. Mr.
Ralls also stated no fence around the property but if granted a fence would have to be put up and
that would be an extra expense to the farm.
1785
Frederick County Board Zoning Appeals
Mr. Ralls expressed the same concerns as his wife. I would have no objection to restoring the
structure but the no garage to close to property line.
Mr. Rinker asked the question to Mr. & Mrs. Allen; would you be willing to put a fence around
the property so that would address some of the adjoining property owners' concerns.
Staff noted that we can't make it a condition the Board is here to either grant or deny setback
request. Mr. Cheran stated that Frederick County doesn't regulate fences.
Mr. Allen stated they contacted the Potomac Conservancy, but they were unable to change the
boundary line.
Closed Public Hearing
Discussion/Comments
Mr. Rinker was concerned about the 5 -foot right side setback.
Chairman Lowman said you will need to get creative when digging the footer and be mindful of
the property line. A suggestion is to place orange fence around the property line when
construction starts.
On a motion made by Dudley Rinker to approve as presented Variance Request 05-20 of
Michael Allen and Jill Allen and was seconded by Mr. Shenk, it was unanimously approved.
Vice -Chairman Scott made a motion to adjourn the meeting at 4:41 p.m.
z4L
Eric Lowman, Chairman
f° kily
Pamala Deeter, Secretary
Frederick County Board Zoning Appeals
1786