Loading...
BZAMinutes2022December201868 Board Zoning Appeals December 20, 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 December 20, 2022. PRESENT: Eric Lowman, Chairman, Red Bud District; Kevin Scott, Vice-Chairman, Shawnee District; Dwight Shenk, Gainesboro District; Reginald Shirley, III, Opequon 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 January. Mr. Cheran stated yes, the cut- off is December 22, 2022. On a motion made by Mr. Cline and seconded by Mr. Madagan, the minutes for the November 15, 2022, meeting were unanimously approved as presented. Chairman Lowman proceeded with swearing in of The Appellant’s Attorney, Brian Prater, and Zoning Administrator Cheran. Chairman Lowman went over the rules of the meeting and how citizen should conduct themselves. He mentioned that a timer will be set for 3 minutes for each citizen’s comments. PUBLIC HEARING Chairman Lowman read the Appeal #12-22 for West Oaks Farm Market, LLC., submitted to appeal a Notice of Violation (NOV) alleging that West Oaks Farm Market, LLC (the “Appellant”) violated the Frederick County Zoning Ordinance, Chapter 165, Section 103.03: Conditions. The NOV dated September 8, 2022, from the Zoning Administrator, stated that the Owner is in violation of a Conditional Use Permit (CUP #04-18, the “CUP) for the property located at 4305 4 1869 Board Zoning Appeals December 20, 2022 Middle Road, Winchester, identified with Property Identification Number 74-A-3, in the Back Creek Magisterial District. The Zoning Administrator noted that there was a lot of press and social media attention surrounding this appeal. The Zoning Administrator stated that eComments and emails were forwarded to the Board of Zoning Appeals (the “Board”) and copies are in the file folder. The Zoning Administrator came forward and presented his staff report. This property at 4305 Middle Road, Winchester in the Back Creek Magisterial District is in the RA (Rural Areas) Zoning District. Staff stated the Appellant is appealing the NOV issued by the Zoning Administrator. The Zoning Administrator mentioned that the Appellant was sent a letter that he was in violation of the CUP #04-18 for the property. Staff gave the definition of special event facility. The CUP was approved on May 9, 2018, for a special event facility and restaurant. The Appellant agreed to the following conditions for the approval of the CUP #04-18: 1. All review agency comments shall be complied with at all times. 2. An illustrative sketch plan, in accordance with the requirements of Article VIII of the Frederick County Zoning Ordinance, shall be submitted to and approved by Frederick County prior to the establishment of the use. 3. Building permits shall be acquired prior to establishment of the restaurant use. 4. Special events shall start no earlier than 8 a.m. and all events and related activities shall conclude by midnight. 5. Special events may accommodate up to and not to exceed 275 persons. 6. One (1) monument style sign with a maximum sign area not to exceed 50 square feet (SF) and not to exceed 10 feet (FT) in height is permitted. 7. Any expansion or modification of this use will require the approval of a new CUP. The Zoning Administrator stated that a complaint was made about a stage that was constructed and being used for outdoor music events with a picnic shelter also used for these events. Staff visited the property and discovered that two stages were constructed and that the picnic shelter was being used for outdoor seating with a bar. Also, the seating within the picnic shelter was noted to be additional outdoor seating for the patio area of the restaurant. The Appellant was cited in the NOV for violating conditions #1 and #7 of the CUP. Staff noted that the Appellant’s stated reason 5 1870 Board Zoning Appeals December 20, 2022 for appeal was that West Oaks Farm is exempt from Conditional Use Permit requirements under Virginia’s broad and protective agritourism legislation. Staff further noted that the Appellant postponed the Appeal on November 15. During the time from November 15 to November 29, 2022, a stop work order was issued by the Frederick County Department of Public Works. The stop work order prevented the Appellant from further clearing their property for the expansion of parking lot as Frederick County issued no permit for this work. The general overview that was provided by West Oaks shows that the maximum number of attendees on the property is 275, and that the gravel parking areas support parking for more than 125 vehicles, with additional parking in the grassy areas. Staff concluded by requesting that the Board affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-103.03: Conditions. A board member asked does the CUP go with the property? Staff replied that, usually, yes. Once the Appellant submits the sketch plan, that is what the CUP is based on. Another question from the Board asked whether the Appellant could apply for an expansion of the CUP? Staff said yes, and if the Appellant had applied for a CUP extension, the County would have held off on pursuing the NOV until the Board of Supervisors decided the matter. A board member asked for clarification, stating that if the Appellant built a machine shop somewhere on the property, the Appellant wouldn’t need a permit. The Zoning Administrator said that the board member is correct because that would be used as a part of the farm. Mr. Brian Prater with Walsh & Colucci, representing the Appellant, came forward on behalf of the Appellant. The Appellant stated that the West Oaks Farm Market has 200 acres operational farm and has ties to the community. Further, the West Oaks Farm Market offers recreational activities, education activities, and agritourism which promotes the rural area of the County. The Appellant believes that it is following the provisions of the Virginia Code that govern agritourism. The Appellant hopes that the Board will overturn the Zoning Administrator’s decision on the violations. The Appellant pointed out that Condition 1 states all review agency comments shall be complied with at all times. The NOV refers to Condition 1 where no building permits were obtained for the structures that were built. The Appellant disagrees that their actions constitute a violation of this condition. Mr. Prater pointed out that Condition 7 states that any expansion or modification of the uses approved in the CUP will require the approval of a new CUP, and that the new uses or expansion of the existing uses require a new CUP. The Appellant disagrees that their actions constitute a violation of this condition. The Appellant noted that the Commonwealth of Virginia has existing laws on agritourism. The Appellant stated they believe that as long as the property is zoned agricultural and is an operational 6 1871 Board Zoning Appeals December 20, 2022 farm, the state legislation makes it clear that no locality may require a special permit or building permit for activities or structures on such property; this would include the two stages and expansion of the restaurant seating. The Appellant stated that the stages, or so-called gazebo, are used for educational activities and the storage of farms products which fall under the state agritourism laws, making the structures farm exempt from permitting. The Appellant also noted that the stages or so-called gazebo are additionally used for live entertainment, which the Appellant states is permitted under the state agritourism laws, and so the locality should not try to regulate that activity. The Appellant noted that the sketch plan they submitted during the CUP process shows that the picnic area and the concrete pad were planned when the CUP was approved in 2018, so the Appellant shouldn’t need a building permit now since the building official signed off on the agency comment sheet. The Appellant stated that it has tried to address the concerns of the neighbors by putting a speed limit sign up, closing early, putting up apple crates to alleviate the lights from cars, upgrading the road because of the dust, and holding community meetings. The Appellant concluded with a statement asking the Board to overturn the decision of the Zoning Administrator because this farm is promoting agritourism for the County and the NOV is invalid under the state agritourism laws. A board member asked what are the hours of operation for the farm market and what hours are bands active? The Appellant replied that the seasonal farmers market hours are Monday through Saturday 8 a.m. to 6 p.m. and Sunday 12 p.m. to 6 p.m. and the stages or so-called gazebo can be used from 8 a.m. to 10:30 p.m. Mr. Prater also noted under state law there is no time frame as to when agritourism entertainment ends. A board member noted concern for the neighbors and the impact of the music. A board member noted that Virginia Code § 15.2-2288.6 (C) addresses the music. It states it must be substantial impact on health, safety, and general welfare of the public. The Appellant states that would be something for the Courts to decide and that the County would need to provide proof. Opened Public Comment A number of residents spoke on behalf and in favor of West Oaks Farm Market’s appeal. A couple of residents spoke in opposition of the West Oaks Farm Market. Closed Public Comment 7 1872 Board Zoning Appeals December 20, 2022 The County Attorney Rod Williams came forward on behalf of the County. The County stated it supports agriculture, however this appeal is not about agriculture in the County, but about the Appellant not following the terms of the CUP. The County stated that the Appellant’s uses go beyond what the CUP allows. The State and County both promote the health, safety, and welfare of public. The Appellant applied for building permits with the CUP in May 2018 and the Building Official signed off on the comment sheet. The County stated that when staff visited the property, the Appellant was not following the conditions of the CUP and so was cited for: unpermitted construction of two stages; unpermitted or approved use of a picnic shelter for outdoor seating, including a bar; and unapproved additional outdoor restaurant seating. The County stated that in the CUP, Condition#1 states that all review agency comments shall be complied with at all times. The Building Office had no knowledge of the construction or expansion of the structures because it was not indicated on the sketch plan that was submitted to the County during the CUP proceeding, and no building permit was issued for the construction or expansion. The County mentioned, the restaurant was expanded with the addition of the outdoor bar as, per to the Virginia Code, you must have a restaurant in order to apply and be issued a license to serve alcohol. The creation of the outdoor bar then must be connected to the restaurant, so must be an expansion of the restaurant, which violates Condition #7. The County noted that at events on the property, citizens are using the stages. The County noted this could be hazardous and jeopardize the citizens’ health, safety, and welfare because the stages were never inspected. The County noted that the Virginia Code allows localities to step in when there is substantial impact that would jeopardize the health, safety and general welfare of the pubic. The County gave the definition of agritourism. A portion of the definition states that the agritourism activities that a farm or ranch carries out must allow members of general public to view rural activities. The County also mentioned, by way of example, that in 2018, the General Assembly specifically included the activity of horseback riding into the definition of agritourism, but the General Assembly did not add concerts to the list of uses for agritourism. The County then stated that having a band playing is not agritourism under the Virginia Code. The County compared West Oaks Farm brochure to another farm market brochure. West Oaks Farm scheduled 78 music events starting from May to October at 5 p.m. to 10 p.m., while the other farm market had one weekend with music from 1 p.m. to 4 pm. The County stated that there must be a limit as to what is considered an agritourism activity. The Attorney General has issued an opinion that operational farms don’t need to get a building permit if the structure is used infrequently; however, seventy-eight events are not infrequent. The County noted that on the Appellant’s brochure it states it is a grill and bar that is not part of a farm. West Oaks Farm charges a cover fee with no food or drinks allowed. The County also reads the allowed uses for Agritourism. 8 1873 Board Zoning Appeals December 20, 2022 The County said in closing, it is the County’s opinion that the Zoning Administrator made the right decision about the NOV, and asked that Board uphold the Zoning Administrator’s decision. A board member asked what does the CUP cover; is the CUP for the whole parcel or just the event center? The County replied that it is for the event center and outside the event center. The purpose of the CUP was for an event center and a restaurant. The bar and stages are an expansion of the restaurant which was not covered in the original CUP. The County also mentioned there is a power line that has been run to the bar and that with no inspection, this could comprise the safety of Appellant’s cliental. A board member mentioned that he sells farm supplies and suggested that the Appellant apply for permits and get the power line inspected. The County replied that no one has asked for a permit or inspection. A board member said that any constructed structure for general public should be inspected because of safety concerns. Chairman Lowman stated that this is only about the CUP. The County said that is correct. Chairman Lowman clarified the state legislation with the County. The County stated that is handed down to the locality. A board member ask what the scenario would be if the Board were to uphold the Zoning Administrator’s decision. The County noted that the violation would stay in place and would be enforced, and Appellant could proceed through the court system if they desired. The County mentioned if the Board overturned the decision of Zoning Administrator the County would have make a decision as to whether or not to appeal that decision and no enforcement action would immediately take place. The Appellant came forward to give its closing. The Appellant stated that the General Assembly has expressed authority as to what the County can regulate. If the violation was for noise, then there should be a noise ordinance violation. This is about violation of the CUP conditions. The CUP only covers the special event facility and the restaurant. The Appellant stated that the other activities are agritourism and are permitted. The Appellant also noted that the Appellant has purchased additional exhibits for educational purposes to be placed on the gazebo. CLOSED PUBLIC HEARING Discussion A board member said that anything that the public is going to be using should be permitted due to safety concerns. If there is a violation about noise, the noise must be amplified and there has to be a noise ordinance in place first to regulate noise. A suggestion would be to move the stage around back and see if noise is eliminated. In everything he read, he thinks the County cannot regulate the activities. A board member said that CUP conditions should be followed. 9 1874 Board Zoning Appeals December 20, 2022 Most members support agritourism but the safety of individuals in the unpermitted structures should be a concern to Appellant. Several board members said to get a permit and inspect the structure. A suggestion was given that traffic should go in one way then go out another way. The Zoning Administrator clarified that just getting a permit and inspection will not clear up the NOV. The Appellant needs to come in and apply for CUP expansion of the restaurant with the stage. Then when approved, the County would sign off on the building permit. The Appellant is allowed to have the indoor restaurant, with occupancy of up to 49 people, and the special event facilities, with occupancy up to 275 people. The County mentioned that the Board could put conditions on this appeal. Mr. Rinker made a motion to overrule the notice of violation subject to the Appellant’s removal of the temporary bar structure in the picnic shelter and to have those structure that were referenced in the violation permitted and inspected within 120 days; this was seconded by Mr. Shank. The majority vote was as follows. Yes, voting to overturn Zoning Administrator decision, with the conditions: 6. No, voting to uphold the Zoning Administrator decision: 1. The meeting adjourned at 6:30. ___________________ Eric Lowman, Chairman ____________________ Pamala Deeter, Secretary 10