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HomeMy WebLinkAboutBZAMinutes2023August15 Frederick County Board of Zoning Appeal 1879 August 15, 2023 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 August 15, 2023. PRESENT: Eric Lowman, Chairman, Red Bud District; Kevin Scott, Shawnee District; Dwight Shenk, Gainesboro District; John Cline, Stonewall District; Dudley Rinker, Vice-Chairman, Back Creek District; James Prohaska, Opequon District and Ronald Madagan, Member at Large. ABSENT: STAFF PRESENT: Mark Cheran, Zoning Administrator; Bryton Dean, Zoning Inspector; and Pamala Deeter, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Lowman at 3:30 p.m. and he determined there is a quorum. Chairman Lowman led the Pledge of Allegiance. On a motion made by Mr. Rinker and seconded by Mr. Cline, the minutes for the March 21, 2023, meeting were unanimously approved as presented. On a motion made by Mr. Scott and seconded by Mr. Shenk with a unanimous vote, the Board determined that that Variance #06-23 for Chad Greathouse be heard first and then Appeal #05-23 for Zoran Zaev and Angela Zaev second. PUBLIC HEARING Chairman Lowman read the Variance #06-23 for Chad Greathouse for a 33-foot right side yard variance to a required 100-foot right side yard setback which will result in a 67-foot right side setback for a single-family dwelling. The property is located at North Frederick Pike (Rt. 522N) to Cedar Grove Road (Rt. 654) to Cattail Road (Rt. 731) on the left and is identified with Property Identification Number 31-A-135 in the Gainesboro Magisterial District. Mr. Cheran came forward to present his staff report. Mr. Cheran mentioned that Mr. Greathouse was before this Board on March 21, 2023, requesting a variance and was acted on. The applicant will explain why he is here again. Staff stated the property is zoned RA (Rural Areas). The Frederick County Board of Zoning Appeal 1880 August 15, 2023 property is 1.052-acres; with the size of the property and the topographic nature, the parcel cannot meet the current setbacks. At the time of recordation, no building restriction lines were assigned. In 1967, the property was zoned A-1: The property setback line at the adoption of the Ordinance was 35-feet for the front, 35-feet for the side yards and 35-feet for the rear. In 1989, the Ordinance was amended and the A-1 District changed to RA (Rural Areas) District. On February 28, 2007, the Board of Supervisors changed the building restriction lines in the RA District. The current setback for RA District is 60-feet for the front, 100-feet to the rear, and 100-feet left and right-side yards. In conclusion, Staff recited The Code of Virginia 15.2-2309 (2) and the Code of Frederick County 165-1001.2., a variance cannot be granted unless the application meets the below criteria. 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 mentioned that Variance request meets the Frederick County Code and the Code of Virginia. This structure would be consistent with the district and setbacks may be justified. The Applicant, Mr. Chad Greathouse came forward and explained that he is here today asking for another variance due to the front of the house being towards the road. Mr. Greathouse admitted that he measured incorrectly for the variance. Upon, realizing that he contacted the Planning Department and began working with Staff to correct the mistake. OPENED PUBLIC COMMENT Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one came forward. Discussion CLOSED PUBLIC HEARING Frederick County Board of Zoning Appeal 1881 August 15, 2023 On a motion made by Mr. Shenk to approve as presented and seconded by Mr. Rinker, Variance Request #06-23 for Chad Greathouse was unanimously approved. PUBLIC HEARING Chairman Lowman read Appeal #05-23, for Zoran Zaev and Angela Zaev the variance was submitted by Zoran Zaev and Angela Zaev, in response to the Zoning Administrator’s notice of violation dated June 15, 2023, regarding the property located at Loretto Drive (Route 1633) Clear Brook, identified with Property Identification Number 34-9-1-27, in the Stonewall Magisterial District. Chairman Lowman swore in six citizens that would be speaking on the Appeal #05-23 Zoran Zaev and Angela Zaev. Mr. Cheran came forward to present the staff report. Staff stated that Christine Dzujna, with Farm- to-Consumer Legal Defense, Fund is remotely on the line. Staff presented maps of the parcel and stated this parcel is in Christo Rey Subdivision in Stonewall magisterial district which the zoning district is RA (Rural Areas). The adjoining properties are zoned RA. On June 15, 2023, the Applicant was cited for a violation in regard to The Frederick County Zoning Ordinance Chapter 165, Section 502-04 Permitted uses and that the Owner is maintaining uses on his property that are not permitted within the RA District. The violations are Use of a recreational vehicle for full-time living (County Code § 165-401.02), Outdoor storage and processing not completely screened from road and street right-of-way and adjoining properties (County Code § 165-201.10), Storage of inoperable motor vehicles not completely screen from public roads and surrounding properties (County Code § 165-204.11(C)); and Storage of trash, rubbish, or garbage not in watertight, verminproof containers (County Code § 165-204.11(D)). Staff noted that the Christo Rey subdivision was approved in 2005 and the final plats approved 2007. The lot is 4.31 acres within the subdivision. The ordinance requires any land uses shall be limited to only the uses that are specifically allowed within that zoning district. The RA District allows for agricultural operations. Mr. Cheran said, the applicant applied for two exemptions under the Virginia Uniform Statewide Building Code Section 102.3 which means the applicant would be exempt from building codes. Before issuance of exemption the Building Official does a site visit at that time the parcel was for an orchard. On October 26, 2016, two exemptions were granted for two buildings for storage of farm supplies. Then June 17, 2017, another exemption was granted again for a pavilion/processing. A certified violation letter was mailed to the applicant. Mr. Zaev replied back to the Notice of Violation. Mr. Zaev is challenging the permitted uses violations. (Letter in agenda packet) Section 165-401.02 Staff stated the Frederick County Zoning Ordinance states that recreation vehicle (RV) for full time occupancy is not an allowed use on that property. RV camping is allowed at campgrounds with an approved Conditional Use Permit. Frederick County Board of Zoning Appeal 1882 August 15, 2023 Section 165-201.10(A) The Frederick County Zoning Ordinance requires outdoor storage, the outdoor storage or processing shall be completely screened from the view of the road or street right-of-way and surrounding properties by a six-foot tall opaque fence, berm, wall or evergreen screen. Section 165-204.11( C) Mr. Cheran said, the Zoning Ordinance prohibits the storage of unscreened inoperable vehicles unless specifically allowed by applicable provisions of the County Code. This District has no provision for the storage of unscreened in operable vehicles. Section 165-204.11(D) Staff stated, the Ordinance prohibits the storage of trash, rubbish, or garage outside of watertight, vermin proof containers, unless at a legal landfill. Staff presented the progression of the property in photos from different years. The Applicant requested an exemption form for orchard and processing/pavilion. That Applicant states he has 150 orchard trees. There is no clear evidence of agricultural use or farm use on property. Mr. Cheran stated that the Applicant now has a sawmill at his property and is processing the wood for mulch and boards. Mr. Cheran mentioned there are two types of sawmills in the County. Type A sawmill is harvesting the tree from your property. Type B sawmill is with a conditional use permit that allows you to have wood delivered to the parcel. At the time the Zoning Inspector visited the property, the Applicant told him that he has wood brought to his property and then he processes the wood. Staff noted that two eComments came in not in favor of Mr. Zaev. The neighbors have taken photos and are similar to what County GIS maps show. Also, if there are any questions, we have the Building Official, Zoning Inspector and County Attorney present. Mr. Cheran states that the Board must affirm or overrule the decision of the Zoning Administrator as to Section 165-502.04 Permitted Uses, that the Applicant is maintaining uses on his property that are not permitted. Christine Dzujna commented that Mr. Zaev should give his presentation. Mr. Zaev came forward to address each of the violations. Mr. Zaev handed out a map and a letter addressing the notice of violation. He gave background of his parcel. The property was purchased in 2012 for a regenerative and sustainable agriculture homestead farm. We are using the principles of perma-culture farm which that means no tilling of the ground. This type of farm means that no chemical is used for fertilizer and is fully natural instead of fertilizers we use mulch. The applicant proceeds by saying we don’t use shingles, metals, OSB or plywood because these products will release certain chemicals into the ground. We planted approximately 150 fruit trees, nut trees and berry patches. It will take several years before producing fruit. We applied in 2016 for a farm exemption form to construct two buildings for the farm to be used for storage of farm supplies. The form was approved, and the buildings Frederick County Board of Zoning Appeal 1883 August 15, 2023 didn’t have to follow the building codes. Then we applied for another farm exempt in 2017 and was granted for a pavilion/processing. Mr. Zaev pointed out that 2019, a Zoning Inspector visited the property due to a complaint that he was running a landscaping business off this property. The Zoning Inspector was educated about our way of farming and explained why we have a sawmill. The farm uses instead of fertilizer around are plants. The Applicant stated he does bring trees from other location but with this type of farming we use lots of mulch. After explaining the operation of the farm, the Zoning Inspector closed the file. Then the Applicant addressed each violation: 1. RV (Recreational Vehicle)- The RV is allowed as accessory use in the Rural Areas District. 2. Inoperable vehicles- Our vehicle is operational. A neighbor does see tractors. Tractors are not considered vehicles. Tractors are part of farming. 3. Trash-There is no miscellaneous trash everything on the property has a purpose. There are some sticks in a pile which will be turned into mulch. There are chips of mulch on parcel but that is not trash. This type of farming requires lots of mulch. 4. Outdoor Storage-There are no requirements for farmers to store lumber or supplies inside a structure. Applicant compared his farm to a contractor storing lumber for new home. 5. Sawmill-A sawmill is an accessory to a farm. The sawmill is used for mulch and the mulch is used for the farm. The lumber that is produced is used for farm building. Applicant stated where the trees come from doesn’t matter. Ms. Dzujna stated she is just a paralegal, and the attorney could not remotely attend the meeting. Ms. Dzujna pointed out, two sections in Virginia law. That no state shall impose on agricultural operation shall adopt an ordinance requiring a special use permit for agricultural activity. Also, there is a no nuisance action. Ms. Dzujna pointed out that the neighbors purchased their property after the Zaev’s farm was established. Vice-Chairman Rinker asked about the processing of produces. The Applicant stated that was the wording on the farm exempt paperwork. As of this time, the trees are young and not producing any fruit. We might consider processing are fruits at a later time. Mr. Williams, County Attorney came forward. I have some questions for Mr. Zaev. Mr. Zaev do you have a sawmill onsite. Mr. Zaev confirmed yes. Mr. Williams asked does your wood come from offsite. Mr. Zaev stated mostly yes. County Attorney asked about the construction of buildings. Are the buildings for offsite? Mr. Zaev said no the buildings are on the property. Mr. Williams ask how many buildings are constructed. Mr. Zaev replied I have three. Two under construction and one is almost complete. Frederick County Board of Zoning Appeal 1884 August 15, 2023 Mr. Williams questioned do you need a sawmill for these buildings? Mr. Zaev stated I don’t buy lumber from stores. Yes, I need the sawmill. County Attorney asked Mr. Zaev when did you purchase the property? He replied 2012. Next, Mr. Williams presented a recorded deed and would this be your deed of record for the property. Mr. Zaev replied, I guess I haven’t reviewed the documentation for some time. Mr. Williams gave Mr. Zaev time to review the documentation. County Attorney questioned, Mr. Zaev do you have any doubts that this is not your deed of record. Mr. Zaev stated not a present time. Mr. Williams asked Mr. Zaev to read a section of the deed. Mr. Zaev you agreed to the covenants at the time you purchased the land. Mr. Zaev answered yes. Mr. Williams addressed the letter from the Applicant’s legal representative stating that the Applicant is not permanent living in the RV. Applicant stated that is correct. I am using the RV as camping or seasonal stay over. County Attorney presented a deed of covenants to Applicant. Mr. Zaev do you agree that this recorded Deed of Covenants paper which was referenced in the deed. Mr. Zaev replied that is correct. Mr. Williams ask the Applicant to read a section pertaining to residency of the parcel and to what was allowed use on the property. Mr. Williams stated the covenant states no RV, mobile home, and etc., are allowed on the property. This is for single family dwelling only. County Attorney ask Mr. Zaev to point out where does it state that he could have a farm. Mr. Zaev replied to the covenant doesn’t have to say that the County Ordinance says I can. County Attorney reiterated what are the allowed uses for that parcel. The deed and covenants were put into the file and Mr. Williams said he didn’t print off the plat to the property. Mr. Bryton Dean, Zoning Inspector, was questioned by Mr. William about the property. When was your last visit to the property. Mr. Dean replied August 10. County Attorney inquired as what Mr. Dean saw. Mr. Dean said I noticed stacks of lumber, mulch piles, tractors, chippers, trailers and buildings under construction. Mr. Dean walked around the property and the Applicant pointed out a fenced area for the fruit trees and explained the process of the farm. County Attorney inquired as to how many trees. Mr. Dean gave approximately 50 to 100 trees. Public Hearing Chairman Lowman opened the floor to anyone in favor or opposition to come forward. No one came forward to speak in favor. Chairman Lowman repeated in anyone in opposition to come for to speak. Frederick County Board of Zoning Appeal 1885 August 15, 2023 Mr. Steven Shupe came forward. He lives across the street from this parcel. He purchased his property a year ago. According to the covenants, the parcel is for a single-family home. Mr. Shupe said, I was under the impression that dwelling was going to be constructed but the neighbors said this is not going to happen. The Applicant resides somewhere else. The RV showed up in March. Ms. Cindy Burns came forward to speak in opposition. They are living in the RV because I see the lights on at night while walking the dog. There are several old tractors with grass growing around it which I don’t think the tractors are operational. It appears that vehicles and lumber are coming in daily. Closed Public Hearing Mr. Madagan has a question for Mark Fleet, Building Official for Frederick County. It is my understanding that you need 5 or 6 acres and a farm exemption form to construct a building. Mr. Fleet answered no. There is no such law in the State of Virginia. Vice-Chairman Rinker inquired that the lumber that the Applicant has can that be used for a dwelling. The Building Official replied no. Any residential home must have a stamp by a certified lumber grade. Farm exemption they could use any type of lumber for farm buildings. Mr. Cline asked if the sawmill was screened. Mark Cheran replied no. Vice-Chairman Rinker ask is the RV for camping temporary. Mr. Zaev said yes. Vice-Chairman asked do you live there 7 days a week. Mr. Zaev replied, we don’t live there 7 days a week. Vice- Chairman asked if you don’t live there where do you reside. The Applicant said in WV. Vice- Chairman inquired about the water and sewage. Mr. Zaev stated they bring water, and they have a Virginia company that pumps the sewage every week. The Applicant stated that the Health Department also inquired about the sewage. The Health Department was provided the contract between the Zaev’s and Johnnie Blue. Mr. Zaev in closing states that the Board should not be considering the covenants. He proceeded with quoting a section of ordinance that the sawmill is an accessory to the farm. We will be building a house but not sure of the timeline. We have inquired with the building office about some of the lumber issues. The farm buildings will be built first before the dwelling. The Applicant reiterated that the letter he provided to the board has the Code. He has addressed each violation and states he is in compliance and the covenants should not be considered. Christina Dzujna spoke, she agrees that the covenants are not relevant to this situation. She states 4 violations were in the notice of violation and Mr. Zaev has responded to each violation in his letter. Frederick County Board of Zoning Appeal 1886 August 15, 2023 Discussion None Discussion Closed Chairman Lowman explained to the Applicant that we are here today to see if the Zoning Administrator interpreted the County Code and made the right decision about the notice of violation. On a motion made by Mr. Shenk on Appeal #05-23 for Zoran Zaev and Angela Zaev to uphold the Zoning Administrator’s decision and seconded by Mr. Cline, unanimously to uphold Zoning Administrator’s decision. Chairman Lowman asked if there are any applications for September. Mr. Cheran stated no, the cut-off is Friday. On a motion by Chairman Lowman to adjourn meeting and second by Mr. Madagan at 4:55, the Board adjourned. ________________________________ Eric Lowman, Chairman ________________________________ Pamala Deeter, Secretary