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BZAMinutes2024May21 Frederick County Board of Zoning Appeals 1904 May 21, 2024 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 May 21, 2024. PRESENT: Eric Lowman, Chairman, Red Bud District; Dwight Shenk, Gainesboro District; James Prohaska, Opequon District; Dolores Stottlemyer, Shawnee District; and Ronald Madagan, Member at Large. ABSENT: Dudley Rinker, Vice-Chairman, Back Creek District; John Cline, Stonewall District; STAFF PRESENT: Mark Cheran, Zoning Administrator; and Pamala Deeter, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Lowman at 3:40 p.m. and he determined there was a quorum. Chairman Lowman led the Pledge of Allegiance. Chairman Lowman asked if there are any applications for June. Mr. Cheran stated the cutoff date is May 24, 2024, and we have one application. A motion made by Mr. Shenk and seconded by Mr. Madagan, the minutes for the April 16, 2024, meeting were unanimously approved as presented. PUBLIC HEARING Chairman Lowman read the Variance #09-24 for Baldwin Gap Ranch, LLC., (David and Linda Lowers) submitted a request for a variance to permit an accessory dwelling unit of approximately 2,600 square feet, 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. Mr. Cheran came forward to present his staff report and maps. The parcel is in the RA (Rural Areas) District and is subject to a conservation easement. The Applicant is requesting a provision of Section 165-201.05 (Secondary or accessory uses) which restrictions limiting the accessory dwelling in size. Staff stated the accessory structure can be no more than 25% of the gross floor area of the primary dwelling. Staff proceeded by saying the primary structure has a 4,180 square 4 Frederick County Board of Zoning Appeals 1905 May 21, 2024 foot floor area. Mr. Cheran stated Mr. Lowers wants to construct an accessory dwelling up to a maximum of 2,600 square feet which is greater than 25% of the gross floor area of the primary structure. Staff continued by saying the Frederick County under Section 165-201.05 B allows for an accessory dwelling on the property if the Applicant’s property meets the criteria. The Board of Supervisors adopted on April 24, 2024, if 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 square foot or whichever is greater. Mr. Cheran stated that the property owner has a conservation easement on the parcel. This is a contract between the property owner and a Potomac Conservancy. An easement is a contract that prohibits the property owner of a subdivision of the property and governs the size and locations of principal and accessory structures. Mr. Cheran stated that an easement stays with the property even if the property is sold. In this case, the previous property owners placed an easement on the property. A restriction on the property would have appeared if Mr. Lowers did his due diligence in a title history search. Most real estate purchases allow the buyer to examine the title to their satisfaction before closing the purchase. The Applicant applied stating the easement is restricting the land use so that is a hardship. The fault lies with the purchaser for not knowing the restriction. The Frederick County Code does not produce hardship as the hardship is self-inflicted by the applicant. (By the previous property owners). 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 does not meet The Code of Virginia 15.2309 (2) and the Frederick County Code. Mr. Cheran reiterated that the Applicant is requesting a variance from Section 165- 5 Frederick County Board of Zoning Appeals 1906 May 21, 2024 201.05 as the accessory structure requirement and the Applicant can meet the requirement by building 1,045 sq. ft. structure which is (25% of the size of the principal structure. Mr. Madagan (Board Member) is concerned as to why this ordinance couldn’t be changed for larger lots. The Applicant has 150 acres and limiting him on the size of a structure. How would a citizen change the ordinance. Staff replied, you would contact your Board of Supervisor in your District. Mr. Cheran replied that the Board of Supervisors would direct the DRRC committee to do a study and adopted a new ordinance on April 24, 2024, allowing the 25% of gross floor area of primary structure rule or a minimum of 500 sq. ft. whichever is greater. Mr. Prohaska inquired as to the adopted date of the new ordinance and who reviewed the new ordinance. Staff replied, The Board of Supervisors. Mr. Prohaska stated the current Board of Supervisors are the ones that adopted this ordinance. Mr. Cheran replied yes. Mr. Shenk inquired is the square footage based on the livable spaces or the gross floor area. Staff said the ordinance says gross floor area. Chairman Lowman gave a statement from the beginning to end on the structure of how an ordinance is changed. Mrs. Stottlemyer inquired is the easement a contract. Mr. Cheran said yes. The previous landowner and the holding company (Potomac Conservancy) made a contract. In the contract there are restrictions, but the property owner still has to meet the County Code or come before the Board for a variance. The County believes that this is self-inflicted because they were aware of this at the time of purchase. PUBLIC HEARING COMMENT Mr. Jack Hanssen came to represent Mr. Lowers. Mr. Hanssen gave the background information that there is a dwelling on the lot and Mr. Lowers wants his daughter and her family to build another dwelling on the parcel. Mr. Hanssen proceeded with this and doesn’t need a special exception or amendment to the County Ordinance. This is the realm of the Board to make this decision about the variance. Mr. Hanssen quoted the Section 165-401.03 of the Frederick County Ordinance. The next point that Mr. Hanssen made is this is not a private contract. When an easement is placed on a property, the applicant needs to submit it to the County and prove that this easement is inline with the Comprehensive Plan. The planner would review the easement contract and verify the easement addresses the vision of the Comprehensive Plan. This is a state requirement. Mr. Hanssen stated he is not sure if the previous landowners submitted it to the County for review. Mr. Hanssen gave an example of a Virginia court case this year where an applicant was denied by the Board of Zoning Appeals. The applicant pursued a higher court, and the verdict was overturned by the judge stating this is not a hardship The higher court stated the purchasing of the property 6 Frederick County Board of Zoning Appeals 1907 May 21, 2024 that requires a variance is not enough to qualify a self-inflicted hardship. The Ordinance is the problem not the easement on the property. If the problem lies with the easement, the applicant should have contacted the Potomac Easement Authority. In reading the easement, it appears that Mr. Lowers could build another dwelling, and this would meet the density right. The parcel is 151 acres in size, and this would not create any harm to the neighborhood. There are neighbors here in support of the variance request. I believe there is no opposition to this variance. Mr. Lowers doesn’t want to extend his existing square footage in order to give his daughter’s dwelling more square footage. If Mr. Lowers built onto his dwelling this would reduce the agricultural acreage for any proposed outbuildings and barn. Mr. Lowers came forward and gave some background information. Before purchasing the property, we had Mr. Hanssen’s law firm review the easement. Chairman Lowman asked if anyone would like to speak in favor of this variance. Two citizens came forward and expressed their support in the variance. Chairman Lowman asked if anyone would like to speak in opposition of this variance. No one came forward. PUBLIC HEARING CLOSED Discussion - None A motion made by Mr. Shenk to approve Variance #09-24 for Baldwin Gap Ranch, LLC (David and Linda Lowers) and seconded by Mr. Madagan Variance was unanimously approved. There being no other business, the meeting adjourned at 3:45. ________________________________ Eric Lowman, Chairman ________________________________ Pamala Deeter, Secretary 7