BZA 06-28-22 Meeting Minutes
Frederick County Board Zoning Appeals 1846
June 28, 2022
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 June 28, 2022.
PRESENT: Eric Lowman, Chairman, Red Bud District; Kevin Scott, Vice-Chairman, Shawnee
District; Reginald Shirley, III, Opequon District; Dwight Shenk, Gainesboro District; John Cline,
Stonewall District; Dudley Rinker, Back Creek 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.
Chairman Lowman asked if there are any applications for July. Mr. Cheran stated no, the cut-off
is Friday.
On a motion made by Mr. Cline and seconded by Mr. Shenk, the minutes for the May 17, 2022
meeting were unanimously approved as presented.
Chairman Lowman suggested that the variance applications be heard first then the two appeal
applications last. On a motion by Mr. Scott to change the order of items being heard and seconded
by Mr. Madagan.
PUBLIC HEARING
Chairman Lowman read Variance #05-22 submitted request for 15.8-foot left side yard variance
to a required 45-foot left side yard setback which will result in a 29.2-foot left side setback for an
accessory structure. The property is located along at 520 N. Timber Ridge Road, Cross Junction
4
Frederick County Board Zoning Appeals 1847
June 28, 2022
and is identified with Property Identification Number 06-A-52D in the Gainesboro Magisterial
District.
Mr. Cheran came forward to present the variance. The property is in the Rural Area (RA) Zoning
District and the land use is residential. The adjoining properties are RA and also residential in
land use. Staff presented a map of the location.
Staff stated the Applicant is requesting a 15.8-foot left side yard variance to a required 45-foot left
side yard setback which will result in a 29.2-foot left side yard setback for an accessory structure.
The Applicant reasoning for the request is topography of the lot. The accessory structure can’t
meet today front setback.
Mr. Cheran gave background information on the property. The property is 6.042+/- acres and was
created in 2007. The setback lines for the parcel are: 60-feet for the front, 45-feet for the left side,
50-feet for the right side and 100-feet for the rear yard.
Staff mentioned that this request does not meet the requirements by The Code of Virginia 15.2-
2209 (2), and the Frederick County Zoning Ordinance. Mr. Cheran mentioned the Applicant has
6.042+/- acres and the accessory structure could be placed behind the dwelling. The property
behind the dwelling is somewhat level to allow for an accessory structure. Staff read The Code of
Virginia criteria for a variance.
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 recommended denial of variance because the setback requirement currently can be met
on the 6.042+/- acre property. Mr. Cheran stated the Applicant is here.
The Applicant Lowell Taylor came forward. He has no statement prepared but would answer any
questions the board may have.
Committee members ask what the reason for the placement is there. The Applicant states he was
the owner of property when applied for the variance and the property has now been sold to a couple
for retirement home which has medical reason for the placement accessory structure. The
accessory structure could be placed behind the house but the topography is not level, also there is
5
Frederick County Board Zoning Appeals 1848
June 28, 2022
a spring in the back in addition to the septic and well so we would have to build further back on
the property. The property owner’s medical condition is getting worse and looking for handicap
accessible.
A Committee member noticed the lot beside this is vacant and asked if this variance would effect
that property if sold. Mr. Taylor said no there is a 50-foot easement between the lots.
A Committee member what is the intended use of structure. Mr. Taylor replied to a garage and
woodworking shop.
Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one
came forward.
Closed Public Hearing
Several members have visited the property and with placing the structure there didn’t believe that
it would affect the lot beside it. There are woods all around the property and with the easement
and the setback for the other lot you might not even see the structure.
On a motion made by Mr. Shenk to approve as presented and seconded by Vice-Chairman Scott,
Variance Request #05-22 of Lowell Taylor Jr., was unanimously approved.
PUBLIC HEARING
Chairman Lowman read. Variance #07-22 for Catherine Sell submitted request for 50-foot left
side yard variance to a required 100-foot left side yard setback which will result in a 50-foot left
side setback for a single- family dwelling. The property is located along Route 50 West, to Quail
Run Road then to White Pine Lane, Winchester and is identified with Property Identification
Number 51-A-16F in the Back Creek Magisterial District.
Mr. Cheran came forward to present the variance. Staff reiterated the request of setbacks. This
parcel doesn’t have building restriction lines so the Applicant would need to follow the current
setback of the RA District. The property is 2.49+/- acres and created in 1975 and currently in the
Rural Area (RA) Zoning District and the land use is residential. In 1967 this property was zoned
A-2 (Agricultural General) when Zoning was adopted the setbacks were 35-feet for the front, 15-
feet for the side yards and 35-feet for the rear yard. Staff noted that in 1989 Ordinance was
amended this changed the A-2 Zoning to RA Zoning. The Board of Supervisors amended the
setbacks on February 28, 2007, making the setbacks 60-feet for the front, 100-feet to the rear, and
100-feet left side yard and 100-feet right side yard.
Staff 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.
6
Frederick County Board Zoning Appeals 1849
June 28, 2022
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 mentioned with this proposed variance appears to be consistent with character of the
Zoning District and meets the intent of The Code of Virginia and Frederick County.
Last comment from staff that we received two e-comments against this variance.
The Applicant, Catherine Sell, came forward.
Chairman Lowman asked what is your intent with the property? Ms. Sell stated she now volunteers
for Park Service and lives out of RV when she decides to retire, she wants to build a house and be
close to family.
Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one
came forward.
Closed Public Hearing
A couple of members said it is a very remote area. A member asked what concerns was on the e-
comment. Mr. Cheran replied that it is a small lot for variance and just didn’t support it. Vice-
Chairman Scott needs to clarify that it is the left side for a variance. Staff replied yes. Another
member was concerned and made sure that she was aware you get once chance for a variance.
On a motion made by Mr. Rinker to approve as presented and seconded by Mr. Shirley, Variance
Request #07-2 for Catherine Sell, was unanimously approved.
PUBLIC HEARING
Chairman Lowman swore in the Applicant
7
Frederick County Board Zoning Appeals 1850
June 28, 2022
Chairman Lowman read Appeal Request # 04-22 Dusty Hillyard submitted to appeal the notice
of violation as to Frederick County Zoning Ordinance, Chapter 165, Section 165-401.02 Permitted
uses within the RA (Rural Areas) Zoning District by the Zoning Administrator, dated April 6,
2022. The property is located at 4494 Cedar Creek Grade, Winchester and is identified with
Property Identification Number 72-A-32 in the Back Creek Magisterial District.
Mr. Cheran came for to present the appeal. The 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.
Staff received a complaint of portable toilet business at the address of 4494 Cedar Creek Grade.
Staff visited the location on March 31, 2022 and noticed portable toilets, equipment, and toilet
trailers with the Company Logo on the property. The property owner received a Notice of Violation
for violation of Section 165-401.02 of the Ordinance permitted uses within the RA Zoning District.
Mr. Cheran stated the Zoning Ordinance Section 165-401.02 permitted uses within the RA Zoning
District does not include a portable toilet business so that is interrupted that it is not permitted. The
Board has a decision as to uphold the Zoning Administrator decision as to the notice of violation
or not.
Mr. Cheran concluded by saying that the Applicant is here as well as Mr. Williams, County
Attorney if there should be any legal questions.
Member of the Board inquired as to what district allows for his business. Staff replied it would be
in the Industrial Districts. Board member ask could applicant apply for a CUP. Mr. Cheran said
no because his business is not listed on the permitted use in the RA Zoning District.
The Applicant, Dusty Hillyard came forward and said the following: We purchased this property
two years ago without being in an HOA. We asked the realtor if we could have this business at our
home and realtor indicated yes. I have just built a garage and I try to contain as much in the garage
as possible. The business has been registered with the County. Along the road there are business
such as landscaping, garages, and etc. I keep my toilets clean and if there is an odor it’s no worse
than what is spread on the farm fields. Mr. Hillyard indicated he would like to work with the
County to get in compliance.
Board members sympathized with him as small business owner. A member asks how long have
you been in business? Mr. Hillyard replied: Feb. 8, will be five years. I started out in Shenandoah
County. Going on two years with a business license from Frederick County. The Health Inspector
have inspected my trucks at my residence. The building inspection has also inspected the garage
footers and electrical.
A member commented that he runs a good business and takes pride in his work and expressed
hope that there is option for him. The toilets are clean and no odor when delivered for an event.
The issue here is if his business is allowed in that district
Chairman Lowman opened the floor to anyone in favor or opposition to come forward.
8
Frederick County Board Zoning Appeals 1851
June 28, 2022
During public comment, Roger Mitchell needed clarification as to why there is an appeal.
Chairman Lowman explained there is a violation, and his business is not allowed at that address.
Mr. Mitchell commented that the business doesn’t belong in a residential area.
Staff came forward and stated that Mr. Hillyard is collecting his receipts for the Commissioner of
Revenue Office for the last two year, and they issued a license from their department, but he didn’t
complete a zoning review form from our department. If Mr. Hillyard was to complete the zoning
review form, he would be denied because it is not allowed at that address.
Mr. Hillyard responded to Mr. Cheran statement that he was never given a packet with our form
but has a license from the Commissioner of Revenue.
Public Hearing Closed
Board member commented that a relative lives close and there is no odor, but the ordinance says
that business isn’t allowed there.
The Board asked Staff what Mr. Hillyard options are. Mr. Hillyard has the right to appeal to the
circuit court or move his business within 30 days. Staff explained that he could petition the Board
of Supervisors to do an ordinance amendment change. This would also include a study request,
committee hearing, and public hearings.
On a motion made by Mr. Rinker to deny #04-22 Dusty Hillyard the appeal and to uphold the
decision of the Zoning Administrator and seconded by Mr. Cline, the motion passed unanimously
and the appeal was denied.
Public Hearing
Chairman Lowman ask if anyone is here for the Trustland Appeal 06-22 to come forward and be
sworn in. Mr. Jeremy Tweedie came forward.
Chairman Lowman read Appeal Request #06-22 of Trustland Investment Properties, submitted to
appeal the notice of violation as to Frederick County Zoning Ordinance, Chapter 165, Section 203-
03D decision of the Zoning Administrator dated May 13, 2022. The property is located at the
Northwest corner at the intersection of Tasker Road (Route 642) and Warrior Drive (Route 719)
Stephens City and is identified with Property Identification Number 75 -A-104 in the Shawnee
Magisterial District.
Mr. Cheran came forward and gave the background information. The Applicant is appealing (Chapter
165 Section 202.03 D Pedestrian access) the determination of the Zoning Administrator according to
the Site Plan #08-21. Staff read 165-202.03 D to board members which is states Pedestrian
access requires safe pedestrian walkways to be provided to all uses on land included in a Master
Plan or Site Plan approved by Frederick County. Sidewalks and multi-use trails shall be provided
in conformance with adopted Comprehensive Plan policies for present and future roadway
classification and/or approved Master Development Plans. Sidewalks shall be installed in the right-
9
Frederick County Board Zoning Appeals 1852
June 28, 2022
of-way and adjacent to the boundary of all proposed and existing streets and shall contain adequate
handicapped ramps at all intersections at intervals acceptable to the Virginia Department of
Transportation. There shall be a minimum two-foot-wide grass strip or swale between the street
edge and the sidewalk, where sidewalks are required. Sidewalks shall be a minimum of five feet
wide, multi-use trails shall be a minimum of 10 feet wide. Therefore, for Site Plan #08-21 to be
approved by Frederick County, a safe pedestrian access shall be provided along Tasker Road (642)
and Warrior Drive (Rt.719).
The timeline for the Site Plan #08-21 for self-storage is listed below:
On April 27, 2021, a site plan was submitted for self-storage facility to Planning Department for
review.
On April 28, 2021, a review comment (see below) correspondence went out to Applicant to address
the Sidewalk and Pedestrian Walkways:
Sidewalk and Pedestrian Walkways: Safe pedestrian walkways shall be provided to all
uses on land included in a Master Plan or Site Plan approved by Frederick County. Sidewalks
shall be provided in conformance with adopted corridor or walkway plans or approved Master
Development Plans. The Site Plan could not be approved in its current form, as the Site Plan did
not include sidewalks or pedestrian walkways along Tasker Road (Route 642) and Warrior Drive
(Route 719) as required per the Frederick Zoning Ordinance Section 165-202.03 D
On November 22, 2021, a meeting was held concerning the site plan comments.
On December 21, 2021, staff advised Applicant to seek zoning determination letter on Section
165-202.03 regarding Sidewalk requirements.
On January 26, 2022, the Board of Supervisors amended Section 165-202.03 D of the Frederick
County
Ordinance. The Section states:
Safe pedestrian walkways shall be provided to all uses on land included in a
master plan or site plan approved by Frederick County. Sidewalks and multi-use trails shall be
provided in conformance with adopted Comprehensive Plan policies for present and future
roadway classification and/or approved master development plans. Sidewalks shall be
installed in the right-of-way and adjacent to the boundary of all proposed and existing streets
and shall contain adequate handicapped ramps at all of intersections at intervals acceptable
to the Virginia Department of Transportation. There shall be a minimum two-foot-wide grass
strip or swale between the street edge and the sidewalk, where sidewalks are required.
Sidewalks shall be a minimum of five feet wide, multi-use trails shall be a minimum of 10 feet
wide.
On May 10, 2022, Applicant submitted a zoning determination request letter.
On May 13, 2022, staff advised Applicant that Section 165-202.03 D required a sidewalk, and that
site plan couldn’t be approved as submitted.
Staff said that is why we are here today is to uphold the Zoning Administrator determination of
10
Frederick County Board Zoning Appeals 1853
June 28, 2022
the Ordinance on Safe Pedestrian walkways.
The Applicant, Jeremy Tweedie came forward Trustland is one of his companies. Applicant gave
his background of his engineering field. Applicant very familiar with the Frederick County Zoning
Ordinance since he designed and built in the County. Mr. Tweedie states he had several meetings
with VDOT and the County (Planning Dept.) on the property. No one mentioned anything about
sidewalks and Mr. Bishop, Assistant Transportation Director works in the Planning Department.
Mr. Tweedie gave his timeline of the procedure with this site plan.
Mr. Tweedie was explaining what the project would look like after completion. A comment letter
was received by Mr. Tweedie with the wording of Sidewalk and Pedestrian Walkways: Safe
pedestrian walkways shall be provided to all uses on land included in a Master Plan or Site Plan
approved by Frederick County. Sidewalks shall be provided in conformance with adopted corridor
or walkway plans or approved Master Development Plans. The Site Plan could not be approved
in its current form, as the Site Plan did not include sidewalks or pedestrian walkways along Tasker
Road (Route 642) and Warrior Drive (Route 719) as required per the Frederick Zoning Ordinance
Section 165-202.03 D. Mr. Tweedie states he has never seen this on a site plan. The Applicant
stated he has seen this on commercial building comment letters where you need to get a sidewalk
from point A to point B but with the storage unit this is not the case. His site plan was addressing
the sidewalk issue. He stated: I have a sidewalk in front of the office and motor vehicle access
parking space for renters of the units.
Mr. Tweedie said he was unaware of the changing of the ordinance. Applicant researched the
agenda and the DRRC committee meet on November 18, 2021, and then the ordinance moved
forward to Planning Commission and Board of Supervisors amended the ordinance on January 26,
2022. Applicant said keep in mind I have been in contact with several of the Planning Department
employees and not one mention of this proposed change. Applicant found out about the change
after the Board of Supervisors amended the change.
The amended ordinance has put an extra design and cost on this project that wasn’t taken into
consideration. The Applicant would need to put in safe pedestrian walkway, handicapped ramps,
and a two-foot-wide grass strip or swale between street edge and the sidewalk etc.
Applicant said he suggested to build a hiker/biker trail instead of the sidewalk. The County said
that is not an option.
Chairman Lowman clarified that Applicant submitted site plan then comment letter came
addressing issue to be revised. Applicant submitted a revised site plan but addressing the comment
with a comment that this is non-applicable.
Chairman Lowman inquired if he was notified of the change. Applicant said no. Mr. Tweedie
thinks he should have been made aware or at least able to attend the public hearing to voice his
opinion.
Mr. Shirley said since there is another storage unit across from your property do you think it wise
11
Frederick County Board Zoning Appeals 1854
June 28, 2022
to place another one there. Applicant responded yes; I have completed a study for this.
Chairman Lowman asked Staff about the change in the ordinance. Staff said we added the future
roads into ordinance. Mr. Cheran replied to Applicant that he addressed the comments.
The letter that goes out to Applicants and the state’s administrative approval cannot be granted
until comments are satisfied by all agencies. The revised plan that was submitted didn’t address
the sidewalk and pedestrian walkways some of the other comments were addressed.
Mr. Cheran stated that Mr. Tweedie says he is on top of things but when a proposed amendment
change goes to Committee and then to public hearing the County is under no obligation to notify
him. When this was being proposed, his site plan was still in the review stage. The Board of
Supervisors makes the changes to the Ordinance not the Subdivision Administrator.
VDOT has a classification of roadway. They work with the County. This change is in our
supplemental ordinance under the driveway areas and pedestrian walkway etc.
Mr. Williams stated that if Applicant had concerns or issue or needed interpretation of the
ordinance in reference to the comment letter, he should have addressed them accordingly. The
Applicant had ample time.
County Attorney said the reason for the change in ordinance is to make it clear and more concise.
The County has process for amending an ordinance concerning land use. The process to make that
amendment will go through 5 meetings. The County is required to advertise for Planning
Commission and Board of Supervisors public hearing meeting in the newspaper. Also, the website
offers all the information about meetings. The placement of the ordinance doesn’t matter. The
ordinance is in the part about roads the heading doesn’t have to give all the pertain information.
Mr. Tweedie is requesting if there is any requirement for the County to notify the engineering that
an ordinance is being change when a site plan is in the review stage. He believes as a professional
courtesy it should be mentioned.
Vice Chairman Scott ask what are your intention if your appeal is denied? The Applicant stated
he would look at the time and money if moving forward to the circuit court. If he decides to
redesign his project, he would be very precise and cautious about everything.
Mr. Cheran received several e-comment opposing this appeal.
Chairman Lowman ask if there was anyone here in favor or opposition to come forward because
you will need to be sworn in.
Two citizens came forward and their concerns were safety. They were opposing the appeal and
want the Board to uphold the Zoning Administrator decision.
Mr. Madagan said at that intersection he has seen accidents and people killed there. He feels that
12
Frederick County Board Zoning Appeals 1855
June 28, 2022
if you put in a sidewalk in it might help with the safety of the citizen.
PUBLIC HEARING CLOSED
A motion made by Mr. Scott to deny #06-22 Trustland Investment Properties appeal and to uphold
the decision of the Zoning Administrator and seconded by Mr. Madagan, was unanimously upheld
and the appeal was denied.
On a motion by Mr. Cline to adjourn meeting and second by Vice-Chairman Scott at 5:40.
___________________
Eric Lowman, Chairman
____________________
Pamala Deeter, Secretary
13