BZAAgenda2024May211.Call to Order
2.Determination of a Quorum
3.Meeting Minutes
3.A.Minutes of April 16, 2024
4.Public Hearings
4.A.Variance #09-24 for Baldwin Gap Ranch, LLC (David & Linda Lowers)
Submitted a request for a variance to permit an accessory dwelling unit of
approximately 2,600 square feet, which exceeds the size that Frederick County Zoning
Ordinance Section 165-201.05, Secondary or accessory uses, permits. The property is
located at 5522 Cedar Creek Grade, Winchester, and is identified with Property
Identification Number 83-A-1C in the Back Creek Magisterial District.
5.Other
AGENDA
BOARD OF ZONING APPEALS
TUESDAY, MAY 21, 2024
3:30 PM
THE BOARD ROOM
FREDERICK COUNTY ADMINISTRATION BUILDING
WINCHESTER, VIRGINIA
BZA05-21-24MeetingMinutesApril16.pdf
BZA05-21-24VAR09-24_Redacted.pdf
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Board of Zoning Appeals
Agenda Item Detail
Meeting Date: May 21, 2024
Agenda Section: Meeting Minutes
Title: Minutes of April 16, 2024
Attachments:
BZA05-21-24MeetingMinutesApril16.pdf
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1901
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 April 16, 2024.
PRESENT: Eric Lowman, Chairman, Red Bud District; Dudley Rinker, Vice-Chairman, Back
Creek District; Dwight Shenk, Gainesboro District; John Cline, Stonewall District; James
Prohaska, Opequon District; Dolores Stottlemyer, Shawnee 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 May. Mr. Cheran stated the cutoff date
is April 19, 2024.
A motion made by Mr. Cline and seconded by Mr. Madagan, the minutes for the March 19,
2024, meeting were unanimously approved as presented.
PUBLIC HEARING
Chairman Lowman read Variance #08-24 for Gene and Melissa Walker submitted a request for
a 2.5-foot rear yard variance to a required 15-foot rear yard setback which will result in a 12.5-
foot rear setback for a covered porch. The property is located at 127 Skipper Drive in the Lake
Frederick subdivision and is identified with Property Identification Number 87B-5-2-74 in the
Opequon Magisterial District.
Mr. Cheran came forward to present his staff report and maps. The parcel is considered a single-
family small lot, and the zoning is R5 (Residential Recreation Community) District. This parcel
is in the subdivision of Lake Frederick. The Applicant cannot meet today’s current rear setbacks
for a covered porch. The setback for a covered porch is 15-ft from rear property line. Staff
continued the Applicant has a deck and the uncovered deck meets the current rear set back of 5-ft
from the property line. Staff noted when you attach a roof to the deck it becomes part of the
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1902
primary structure. The Applicant’s rear property line backs up to the open space. Mr. Cheran noted
that surrounding parcels in the subdivision already have decks or covered porches so this would
blend in with the subdivision.
Mr. Cheran concluded with The Code of Virginia 15.2-2309 (2) and the Code of Frederick County
165-1001.2. Staff presented the criteria the Applicant would have to meet in order to grant 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.
Staff noted that the variance meets The Code of Virginia 15.2309 (2) and the Frederick County
Code. Mr. Cheran reiterated that the Applicant is requesting a 15-ft rear setback to cover the deck.
Mr. Gene Walker of Opequon District came forward. The Applicant had no presentation but if
there were questions from the Board, he would answer them. The Applicant did say we purchased
the house in 2017 and we have used a deck umbrella which has fallen on us many times. When
the wind blows, it falls to the ground.
PUBLIC HEARING COMMENT
Chairman Lowman asked if anyone would like to speak in favor of this variance. No one came
forward.
Chairman Lowman asked if anyone in opposition that would like to speak to come forward. No
one came forward.
PUBLIC HEARING CLOSED
Discussion - None
A motion made by Mr. Prohaska to approve the Variance #08-24 for Gene and Melissa Walker
and seconded by Vice-Chairman Rinker Variance, and was unanimously approved.
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1903
There being no other business, the meeting adjourned at 3:45.
________________________________
Eric Lowman, Chairman
________________________________
Pamala Deeter, Secretary
5
Board of Zoning Appeals
Agenda Item Detail
Meeting Date: May 21, 2024
Agenda Section: Public Hearings
Title: Variance #09-24 for Baldwin Gap Ranch, LLC (David & Linda Lowers)
Attachments:
BZA05-21-24VAR09-24_Redacted.pdf
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VARIANCE APPLICATION #09-24
BALDWIN GAP RANCH, LLC (DAVID & LINDA LOWERS)
(JACK C. HANSSEN POA)
Staff Report for the Board of Zoning Appeals
Prepared May 3, 2024
Staff Contact Mark R. Cheran Zoning Administrator
This report is prepared by the Frederick County Planning Staff to provide information to the
Board of Zoning Appeals to assist them in making a decision on this request. It may also be
useful to others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
May 21, 2024
Public Hearing; Action Pending
LOCATION: The property is located at 5522 Cedar Creek Grade.
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER: 83-A-1C
PROPERTY ZONING & USE: Zoned: RA (Rural Areas) District
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RA (Rural Areas) Use: Vacant
South: RA (Rural Areas) Use: Vacant
East: RA (Rural Areas) Use: Residential
West: RA (Rural Areas) Use: Vacant
VARIANCE REQUESTED: The Applicant is requesting a variance from the provisions of Section
165-201.05 (Secondary or accessory uses) restrictions limiting the size of accessory dwelling to “no
more than 25% of the gross floor area of the primary residential structure on the lot”. The existing
primary dwelling has 4,180 sq. ft. in gross floor area, and the owner wants to construct an accessory
dwelling containing up to a maximum of 2,600 sq. ft.
REASON FOR VARIANCE: The property owner wants to construct a dwelling greater than
25% of the gross floor area of the primary residential structure on the property.
STAFF COMMENTS: Section 165-201.05 B of the Frederick Zoning Ordinance allows for
accessory dwellings on property that has a single-family dwelling as long as the following
conditions are meet: The floor area of the accessory dwelling shall be no more than 25% of the
gross floor area of the primary residential structure on the lot or a minimum of 500 sq. ft. or
whichever is greater. (adopted April 24, 2024)
This property is subject to a conservation easement (“Easement”) (see enclosure) which prohibits
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subdivision of the property and governs the size and locations of principal and accessory
structures. The owner acquired the property in February of 2022. The owner contends that the
Easement imposed on the property by the previous owner property produced the hardship and
caused the owner the inability to use the property.
In this case, the property owner should have done their due diligence as to the title history, which
would have revealed the restrictions that have been placed on this property prior to acquiring it.
Most real estate purchase contracts expressly allow time for the purchaser to examine the title to
their satisfaction before obligating the purchase. It is the fault of the purchaser as to not knowing
the restrictions of the easement. The strict application of the Frederick County Code does not
produce an undue hardship as the hardship is self-inflicted by the applicant.
This application for a variance does not meet the requirements as set forth by The Code of
Virginia 15.2-2209 (2), and the Frederick County Zoning Ordinance. Specifically, Section 165-
201.05 of the Frederick County Zoning Ordinance does not produce an unreasonable restriction
or hardship on the property.
STAFF CONCLUSIONS FOR THE MAY 21, 2024, MEETING:
The Code of Virginia 15.2-2309 (2) and Code of Frederick County 165-1001.02, 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) Any hardship was not created by the applicant for the variance.
3) The granting of the variance will not be a substantial detriment to adjoining property or
nearby properties in the proximity of that geographical area.
4) The condition or situation of the property concerned is not of so general or recurring a nature
as to make reasonably practicable the formulation of a general regulation to be adopted as an
amendment to the ordinance.
5) 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.
6) The relief or remedy sought by the variance is not available through a special exception or the
process for modification of a zoning ordinance.
It appears that this variance does not meet the intent of the Code of Virginia, Section 15.2-2309
(2), and the Frederick County Zoning Ordinance. This variance request Section 165-201.05 of the
Frederick County Zoning Ordinance may not be justified, as the accessory structure requirements
can be met by a 1,045 square foot structure (25% of the size of the principal structure). Staff
would recommend denial of this variance application. The strict application of the Frederick
County Zoning Ordinance does not produce an unreasonable restriction on the property, and the
variance would only address a hardship created by the owner, which Code of Virginia 15.2-2309
(2) and Frederick County Zoning Ordinance do not permit.
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MIDDLE ROADESTATESSubdivision
SHENANDOAHCOUNTYVIRGINIA
83 A 1C
7326MIDDLE RD
7326MIDDLE RD
155MINEBANK RD195MINEBANK RD
123MINEBANK RD
7250MIDDLE RD
7300MIDDLE RD
7221MIDDLE RD
7223MIDDLE RD
7252MIDDLE RD
121MINEBANK RD
7219MIDDLE RD
7189MIDDLE RD 7155MIDDLE RD
7137MIDDLE RD7137MIDDLE RD
5930CEDARCREEK GR
7170MIDDLE RD
5941CEDARCREEK GR7152MIDDLE RD
7120MIDDLE RD
5867CEDAR CREEK GR
5900CEDARCREEK GR
5888CEDAR CREEK GR
5778CEDARCREEK GR
5776CEDARCREEK GR
5741CEDARCREEK GR5754CEDARCREEK GR
265FROMANS RD423FROMANS RD
395FROMANS RD
5439CEDARCREEK GR
MIDDLE RDMI
NE
B
ANK
R
DCEDAR CREEK GRApplication
Parcels µ
Frederick C ounty Planning & Development107 N Kent StWinchester, V A 22601540 - 665 - 5651Map Created: April 22, 2024
M ID D L E R D
MINEBANKRDFROMANS RD
CEDAR CREEK GR0 800 1,600400 Feet
SHENANDOAHCOUNTY
VAR # 09 - 24: Baldwin Gap Ranch, LLCPIN: 83 - A - 1CVarianceZoning Map
VAR #09 -24
9
MIDDLE ROADESTATESSubdivision
SHENANDOAHCOUNTYVIRGINIA
83 A 1C
7326MIDDLE RD
7326MIDDLE RD
155MINEBANK RD195MINEBANK RD
123MINEBANK RD
7250MIDDLE RD
7300MIDDLE RD
7221MIDDLE RD
7223MIDDLE RD
7252MIDDLE RD
121MINEBANK RD
7219MIDDLE RD
7189MIDDLE RD 7155MIDDLE RD
7137MIDDLE RD7137MIDDLE RD
5930CEDARCREEK GR
7170MIDDLE RD
5941CEDARCREEK GR7152MIDDLE RD
7120MIDDLE RD
5867CEDAR CREEK GR
5900CEDARCREEK GR
5888CEDAR CREEK GR
5778CEDARCREEK GR
5776CEDARCREEK GR
5741CEDARCREEK GR5754CEDARCREEK GR
265FROMANS RD423FROMANS RD
395FROMANS RD
5439CEDARCREEK GR
MIDDLE RDMI
NE
B
ANK
R
DCEDAR CREEK GRApplication
Parcels µ
Frederick C ounty Planning & Development107 N Kent StWinchester, V A 22601540 - 665 - 5651Map Created: April 22, 2024
M ID D L E R D
MINEBANKRDFROMANS RD
CEDAR CREEK GR0 800 1,600400 Feet
SHENANDOAHCOUNTY
VAR # 09 - 24: Baldwin Gap Ranch, LLCPIN: 83 - A - 1CVarianceLocation Map
VAR #09 -24
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