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HomeMy WebLinkAboutBZAMinutes2023December191887Frederick County Board of Zoning Appeals December 19, 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 December 19, 2023. PRESENT: Dudley Rinker, Vice Chairman, Back Creek District; Dolores Stottlemyer, Shawnee District; Dwight Shenk, Gainesboro District; John Cline, Stonewall District; and Ronald Madagan, Member at Large. ABSENT: Eric Lowman, Chairman, Red Bud District; James Prohaska, Opequon District. STAFF PRESENT: Mark Cheran, Zoning Administrator; and Pamala Deeter, BZA Secretary. CALL TO ORDER The meeting was called to order by Vice Chairman Rinker at 3:30 p.m. and he determined there is a quorum. Vice Chairman Rinker led the Pledge of Allegiance. Vice Chairman Rinker asked if there are any applications for January. Mr. Cheran stated yes. On a motion made by Mr. Cline and seconded by Mr. Madagan, the minutes for the August 15, 2023, meeting were unanimously approved as presented. PUBLIC HEARING Vice Chairman Rinker read the Variance #09-23 for Jeanette Shaffer Lang submitted request for 25-foot left yard variance to a required 50-foot left yard setback which will result in a 25-foot left setback and 25-foot right yard variance to a required 50-foot right yard setback which will result in a 25-foot right setback for a dwelling. The property is located on Woods Mill Road (Route 660) south of 840 Woods Mill Road and is identified with Property Identification Number 55A-1- 10 in the Stonewall Magisterial District. Mr. Cheran came forward to present the staff report and maps. Staff noted that the property is on Woods Mill Road. The applicant is requesting a 25-foot left yard variance to a required 50-foot left yard setback which will result in a 25-foot left yard setback; and requested a 25-foot right yard 1888Frederick County Board of Zoning Appeals December 19, 2023 variance to a required 50-foot right yard setback which will result in a 25-foot right yard setback for a dwelling. Staff gave the reason as to why a variance is being sought because the property cannot meet the current setbacks due to the size of the property. The property is 1.27 acres and is vacant. The zoning is Rural Areas (RA) and the adjoining properties are RA. Staff noted the parcel was created in 1950 and does not have Building Restriction Lines assigned to property so the applicant would need to follow today’s setbacks. Mr. Cheran mentioned that the County adopted zoning in 1967. The historical maps show this property zoned A-2 (Agricultural General). The setback for the A-2 at the time was 35-feet for the front, 15-feet for the side yards and 35-feet for the rear yard. In 1989 Frederick County amended the Ordinance, changing the A-2 Zoning District to RA (Rural Areas). Staff said that on February 28, 2007, the County changed the setbacks for the RA District to 60-feet for the front, 100-feet to the rear, and 50-feet to the left and right-side yards. If approved, Mr. Cheran mentioned the setbacks for the property would be 60-feet for the front, 25-feet right and left side yard, and the rear yard is 100-feet. 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 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. Mr. Cheran mentioned that the applicant meets the requirements, and the variance may be justified. The Applicant, Ms. Jeanette Shaffer came forward to answer any questions. Ms. Shaffer mentioned that this property was inherited, and she is preparing to sell the parcel. The applicant stated she is working through the process with the Health Department to get a septic permit. OPENED PUBLIC COMMENT Vice Chairman Rinker opened the floor to anyone in favor or opposition to come forward. 1889Frederick County Board of Zoning Appeals December 19, 2023 Mr. Welch, an adjoiner property owner, came forward and was concerned about landscaping such as the trees. Vice-Chairman Rinker said he didn’t think there would be a problem leaving the tree there. CLOSED PUBLIC HEARING A board member stated that he visited the site and that it would fit in with the neighborhood. On a motion made by Mr. Cline to approve as presented and seconded by Mr. Madagan, Variance Request #09-23 for Jeanette Shaffer, was unanimously approved. PUBLIC HEARING Chairman Lowman read the Variance #10-23 for Jenna Hawkins & Patrick Snarr submitted request for 4.5-foot right side yard variance to a required 5-foot right side yard setback which will result in a 0.5-foot right side setback for an accessory structure. The property is located at 208 Stafford Drive, Winchester and is identified as Property Identification Number 54E-5-A-25 in the Red Bud Magisterial District. Mr. Cheran came forward to present the staff report and the maps. This parcel is zoned RP (Residential Performance) and is located at 208 Stafford Drive, Winchester in the Red Bud Magisterial District. The applicant is requesting for 4.5-foot right side yard variance to a required 5-foot right side yard setback which will result in a 0.5-foot right side setback for an accessory structure. Staff mentioned the applicant built the garage without pulling a building permit and is over the right-side setback. Mr. Cheran gave some background information on the property. In 1961 Frederick County approved the subdivision (Frederick Heights) where this property is located. Originally the parcel was zoned R2 (General Residential) but in 1989 Frederick County amended the ordinance and the zoning changed on this parcel to RP (Residential Performance) Zoning District. A detached structure for the RP (Residential Performance) and the R2 at the time of the adoption were 5-feet on the side and the rear. Staff noted that the Building Department on June 15, 2023, received a call that a structure was being constructed without a permit. At that point, the County cited the applicant for not having a building permit. Mr. Cheran said the applicant applied for a building permit for a detached garage. In the RP (Residential Performance) District, the minimum setbacks are 35-feet front and 5-feet side and rear. On the permit that was applied for by the applicant had setback front N/A, right side 6-feet, left side 25-feet and rear 8-feet. A requirement of the ordinance states that any detached structure over 500 sq. feet located at five feet or less from any minimum setback is required to submit a location survey. 1890Frederick County Board of Zoning Appeals December 19, 2023 Staff mentioned the first setback survey was on September 7, 2023, which placed the garage at 5.8-feet on the right side, however, this survey didn’t meet the requirements of Frederick County Zoning Ordinance. A requirement of the Zoning Ordinance is the survey must be licensed in the Commonwealth of Virginia in order to establish the location of the structure. The setback report wasn’t sealed by a professional engineer and the report was altered. The setback survey was rejected by the County Official. October 17, 2023, a second survey report was submitted with setbacks for the front at 11.01-feet, right 4.5-feet, left 69.3-feet, and the rear 69.3-feet. 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 the applicant built without a permit. Mr. Madagan visited the site, and he questioned the setbacks. Mr. Madagan viewed the survey markings. He stated the applicant’s structure is 4½ feet from the property line. Mr. Madagan stated that the applicant would only need a 6-inch variance. Mr. Shenk inquired about the size of the structure and what is the size that wouldn’t require a building permit. Mr. Cheran replied that is 500 sq. foot or less, but the applicant would need to meet the setback requirements. The applicants Jeanna Hawkins and Patrick Snarr came forward. They are from the Red Bud District. Ms. Hawkins said she reviewed other variances and couldn’t find the wording that was comparable to theirs. Ms. Hawkins stated we were only requesting a 6-inch variance. Mr. Snarr spoke to the neighbors and their garage is 4½ feet from the property line. I also measured the closet point from our garage to neighbors and that is 11 feet. Mr. Snarr also found the original pins buried in the ground when the subdivision was created. Those pins and what the surveyor marked were not the same. I completed drawings and submitted them to an engineer and the drawing was received back in about a week. Before receiving the plans back, I started to construct the garage. Then I received the violation letter about the same time frame. In the process of building, we decided to expand the structure. The applicant stated that the original permit was 1891Frederick County Board of Zoning Appeals December 19, 2023 accepted by the Building Department and then on September 7, we found out that the permit is not acceptable by the Zoning Administrator. An inspection was scheduled for September 19, and the inspector didn’t show up. OPENED PUBLIC COMMENT Vice Chairman Rinker opened the floor to anyone in favor or opposition to come forward. No one came forward. CLOSED PUBLIC HEARING On a motion made by Mr. Madagan to approve a 6-inch variance and seconded by Mr. Shenk, Variance Request #10-23 for Jenna Hawkins and Patrick Snarr, was unanimously approved. PUBLIC HEARING Vice Chairman Rinker read Variance Request #11-23 Javier Ventura (purchaser) & Pedro Jose (seller), requesting a 35-foot left side yard variance to a required 60-foot left side yard setback will result in a 25-foot left side yard setback; and a 25-foot right side yard variance to a required 50-foot right side yard setback will result in a 25-foot right side yard setback and a 35-foot front yard variance to a required 60-foot front yard setback will result in a 25-foot front yard for a dwelling. This property is located east on Parkins Mill Road (Route 644), proceed to the end of the street, the property is on the right. The property is identified with Property Identification Number 77-A-57 in the Shawnee Magisterial District. Mr. Cheran came forward to present the staff report and maps. Staff noted that the property is on Parkins Mill Road at the end of the street on the right. The applicant is requesting a 35-foot left side yard variance to a required 60-foot left side yard setback will result in a 25-foot left side yard setback; and a 25-foot right side yard variance to a required 50-foot right side yard setback will result in a 25-foot right side yard setback and a 35-foot front yard variance to a required 60-foot front yard setback will result in a 25-foot front yard for a dwelling. Staff noted the reason for the variance is the property cannot meet the setback of the (RA) Rural Areas Zoning District due to topography, size of property and the floodplain. Several years ago, you were not allowed to build in the floodplain but since that time in 2021 the restrictions have changed in the floodplain. When comparing the older floodplain map to the 2021 version the floodplain has expanded on this parcel. The older maps indicated that the floodplain was only near the creek. Mr. Cheran continued the property is 1.942 acres in size and zoned (RA) and the property has three fronts. In 1985 the property was created and does not have building restrictions lines. The property owner would need to meet current (RA) setbacks. Mr. Cheran mentioned that the County adopted zoning in 1967. The historical maps show this property zoned A-2 (Agricultural General). The setback for the A-2 at the time was 35-feet for the front, 15-feet for the side yards and 35-feet for the rear yard. In 1989 Frederick County amended the Ordinance, changing the A-2 Zoning District to RA (Rural Areas). Staff said that on February 28, 2007, the County changed the setbacks for the RA District to 60-feet for the front, 100-feet to the rear, and 60-feet to the left and right-side yards. 1892Frederick County Board of Zoning Appeals December 19, 2023 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 the applicant meets the requirements of The Code of Virginia 15.2 - 2309 (2) and the Code of Frederick County 165-1001.2. The variance may be justified. Mr. Cheran mentioned that the well and septic system will be in the floodplain. The applicant did get a certification from Marsh & Legge for the well and septic already and the Frederick County Health Department doesn’t regulate anything in the floodplain. The applicant Power of Attorney (Wendall Johnson) came forward. Mr. Johnson drafted a plan so the house would not be placed in floodplain. Mr. Johnson has drafted a proposed house plan that where the house will be is 40 feet from the setback line, 70 feet from the roadside, 300 feet from the creek, and 30 feet from the neighbor’s property line. Again, the only thing in the floodplain would be the well and septic system. The applicant would construct a lower level and an upper level. The lower level of the dwelling would be 5-feet above the floodplain. A member was confirming that the applicant has a certification letter for the septic system. Mr. Johnson replied yes from Marsh & Legge. OPENED PUBLIC COMMENT Vice Chairman Rinker opened the floor to anyone in favor or opposition to come forward. Nancy and Earl Whitacre of 461 Parkins Mill Road came forward. He expressed his concerns about the floodplain. Mr. Whitacre inquired that there were two churches and one person trying to build a house on that parcel and was turned down because of the floodplain. The staff replied that he was unaware of this information. Mr. Johnson said that again the lower level of the house would be 5 feet above the floodplain. 1893Frederick County Board of Zoning Appeals December 19, 2023 CLOSED PUBLIC HEARING On a motion made by Ms. Stottlemyer to approve and seconded by Mr. Shenk, Variance Request #11-23 for Javier Ventura Pedro Jose was unanimously approved. Adjourned at 4:35. ________________________________ Dudley Rinker, Vice-Chairman ________________________________ Pamala Deeter, Secretary