BZAMinutes2024June18
Frederick County Board of Zoning Appeals 1911
June 18, 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 June 18, 2024.
PRESENT: Eric Lowman, Chairman, Red Bud District; Dwight Shenk, Gainesboro District;
James Prohaska, Opequon District; Dudley Rinker, Vice-Chairman, Back Creek District; John
Cline, Stonewall District; and Ronald Madagan, Member at Large.
ABSENT: Dolores Stottlemyer, Shawnee 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 3:30 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 July. Mr. Cheran stated there is no
meeting in July because the boardroom is going to be renovated. We do have an application for
the August meeting.
A motion made by Mr. Cline and seconded by Mr. Madagan, the minutes for the May 21, 2024,
meeting were unanimously approved with a correction of adjournment time to 4:45 p.m.
PUBLIC HEARING
Mr. Cheran came forward and stated we have a dilemma. The two variances 11-24 and 12-24 for
the Estate of Virginia Unger (Kenneth Unger) will need a vote in order to be heard today or in
August. Mr. Cheran stated that the County Attorney requested the two applications be heard in
August.
Mr. Cano, Assistant County Attorney, came forward and explained the request to wait. He said the
wording of the legal ad listed the Property Identification Numbers and at the time of publication,
the County map was not updated. The requirements for legal ads notice of public hearing have
changed. Mr. Cano referred to a court case. A citizen could challenge this in court because the
property identification numbers were listed in the legal notice and not listed on the County
mapping system. He continued by saying that it’s not the citizen obligation to research the property
to find out what the Applicant is requesting. If the citizen had researched this on the County
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June 18, 2024
website, there would be no Property Identification Numbers. I recommend that we wait to be heard
in August, that way we can meet the requirement of legal notice.
Mr. Cheran came forward and explained that this was not the fault of the Applicant. The Applicant
is trying to create two new parcels. After I signed off on the plats on May 15, 2024, the Applicant
had them recorded the same day. Mr. Unger did post the property with the signs of a hearing.
When the GIS Technician was creating the maps, she noticed that the Property Identification
Numbers for the new lots were not showing on the GIS mapping system. The Commissioner of
Revenue didn’t update the system until June 10. This was almost a month since the plats were
recorded with an instrument number. The department has no control over the Clerk of the Court.
Mr. Cheran stated that we have one letter in opposition to these variances.
Chairman Lowman asked the Applicant to come forward. If we delayed these Variances, how
would this affect you.
Mr. Kenneth Unger stated, I followed the procedure and recorded the plats. I have contracts on
the parcels already scheduled dates for closing on the properties June 28, and July 3, 2024.
Discussion
A member said this is not the fault of the Applicant, and maybe someone failed to do their job.
A comment was made that the previous recording time would only take two weeks.
Closed Public Hearing.
A motion made by Mr. Prohaska and seconded by Mr. Shenk, the agenda was adopted as
presented and to hear the two variances #11-24 and 12-24 Estate of Virginia Unger.
Public Hearing
Chairman Lowman read the Variance #10-24 for Maria Salter submitted a request for a 5-
foot rear yard variance to a required 15-foot rear yard setback, which will result in a 10-foot rear
setback for an enclosed porch. The property is located at 128 Gadwell Lane, in the Lake
Frederick subdivision and is identified with Property Identification Number 87B-2-4-84 in the
Opequon Magisterial District.
Mr. Cheran came forward to present his staff report and maps. He gave the address and said this
parcel is in the Lake Frederick Subdivision and is considered a single-family small lot type. The
property cannot meet the current setbacks for a covered porch because of the size and the
existing location of the dwelling. The setbacks for this lot type are: 25-ft front, 5-ft sides and 15-
ft in the rear.
The Applicant already has an existing uncovered deck. The Applicant would like to cover the
deck and she is requesting a 2.5-ft. rear yard setback to a required 15-ft rear yard resulting in a
12.5-ft rear setback. Staff mentioned that the uncovered deck is 5-ft, and the Applicant meets
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June 18, 2024
that setback. Staff noted that when you attach a porch roof to the dwelling that is considered part
of the primary structure and the setback for the attached covered porch is 15-ft for rear setback.
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.
This proposed variance appears to be consistent with the character of the district; and meets the
intent of The Code of Virginia 15.2309 (2) and the Code of Frederick County. This is a request
regarding setbacks for a covered deck for single-family small lot in the RP (Residential
Performance) Zoning District maybe appropriate.
The Applicant, Maria Salter came forward. Ms. Salter stated, I have nothing prepared but I can
answer any questions. Board members had no questions for her.
Chairman Lowman asked if there is anyone wishing to speak in favor or in opposition of this variance
to come forward.
Public Hearing Closed
A motion made by Mr. Prohaska and seconded by Mr. Rinker, Variance #10-24 for Maria Salter
was unanimously approved.
Public Hearing
Chairman Lowman read Variance #11-24 for Estate of Virginia Unger (Kenneth Unger) 100-
foot rear yard variance to a required 200-foot rear yard setback which will result in a 100-foot rear
setback and a 100-foot right yard variance to a required 200-foot right yard setback which will
result in a 100-foot right setback for a dwelling. The property is located on the north side of
Martinsburg Pike (Rt. 11), proceed to Red Bud Road (Rt. 661), to Milburn Road (Rt. 662) and is
identified with Property Identification Number 44-A-28J in the Stonewall Magisterial District.
Mr. Cheran came forward to present his staff report and maps. Staff mentioned that the property to
the North fronts the open space of Snowden Bridge and to the East and West is the Red Bud
Agricultural & Forestal District. Mr. Cheran reiterated the setback the Applicant is seeking. The
history of the plats was submitted to the County. The plats created a new lot. The plats didn’t have
Frederick County Board of Zoning Appeals 1914
June 18, 2024
the 200 ft setback on them for the Agricultural & Forestal District. The Applicant was unaware of
this setback. The engineering company resubmitted the plat with the correct setback, and I signed
the plats. Mr. Unger recorded the plats the same day as my signature. Mr. Cheran noted that the
board can’t grant a variance unless the plat is recorded. There was a delay between the Clerk of the
Court and the Commissioner of Revenue, and the map update was delayed. On June 10, the update
on the GIS system was completed. Mr. Cheran mentioned that we received one letter opposing the
two variances.
Mr. Cheran concluded by reciting 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.
Staff noted the variance appears to meet the intent of the Code of Virginia and the Frederick County
Code.
The Applicant, Kenneth Unger came forward and gave background information on the property. I
have followed the steps in order to seek a variance for this lot. I feel the 200 -ft setback from the
Agricultural & Forestal District is restricting my land.
A committee member commented that the buffer is for protection of the owner of the new parcel and
that it appears that a dwelling could be placed on that parcel without the variance.
A question was posed to Mr. Cheran by a committee member would this affect the adjoining property
owner that is in the Agricultural and Forestal District. Mr. Cheran explained.
Chairman Lowman asked if there is anyone wishing to speak in favor or in opposition of this variance
to come forward.
Public Hearing Closed
A Committee member said the 200-ft setback was approved by the Board of Supervisors to protect
the owners of the adjoining property owner that abuts up against the Agricultural Forestal District.
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A comment was made that the only reason I am making a motion is that Snowden Bridge
Subdivision is still building homes.
A motion made by Mr. Cline and seconded by Mr. Shenk, Variance #11-24 for Estate of Virginia
Unger was approved with a 5 to 1 vote.
Public Hearing
Chairman Variance #12-24 for Estate of Virginia Unger (Kenneth Unger) submitted a request
for a 100-foot rear yard variance to a required 200-foot rear yard setback which will result in a 100
-foot rear setback for a dwelling. The property is located on the north side of Martinsburg Pike
(Rt. 11), proceed to Red Bud Road (Rt. 661), to Milburn Road (Rt. 662) and is identified with
Property Identification Number 44-A-28K in the Stonewall Magisterial District.
Mr. Cheran came forward to present his staff report and the maps. This property is in the RA (Rural
Areas) District and adjoins the Red Bud Agricultural Forestal District. The Applicant is requesting a
100-foot rear variance to a 200-ft setback. If approved this would place the dwelling at a 100 ft rear
setback. This lot was created in 2024 adjoining an Agricultural and Forestal District.
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) 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 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.
Staff noted that the variance does meet The Code of Virginia 15.2309 (2) and the Frederick County
Code. The proposed variances appear to be consistent with the character of the District.
Mr. Kenneth Unger came forward to answer any question the Board might have. There were no
questions for him.
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June 18, 2024
Chairman Lowman asked if there is anyone wishing to speak in favor or in opposition of this variance
to come forward.
Public Hearing Closed
A motion made by Mr. Cline and seconded by Mr. Shenk, Variance #11-24 for Estate of Virginia
Unger was approved with a 5 to 1 vote.
Public Hearing
Chairman Lowman read Variance #13-24 for Mahlon Estep and Dorothy Estep (Patty Demmon)
submitted a request for a 11-foot rear yard variance to a required 15-foot rear yard setback which
will result in a 4-foot rear setback for a cover structure. The property is located at 146 Poe Drive,
Winchester in the Raven Oaks subdivision and is identified with Property Identification Number
64G 4-1-16 in the Shawnee Magisterial District.
Staff came forward to present maps of property and staff report. The property is located on Poe
Drive in the Raven Oaks subdivision. 2022 was the creation of the subdivision and the lot types
are single family small. Staff explained that single family small lots are usually located in age
restricted communities such as Lake Frederick in the R5 Zoning District. The house does adjoin
open space in the rear which will never be built on. The Applicant is seeking a 11-ft. rear variance
to a 15-foot required setback which will result in a 4-ft rear yard setback for a covered accessory
structure.
Mr. Cheran said once you start covering the deck that is considered part of the primary structure
and the setback are the same as the primary structure.
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) 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 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 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
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process for modification of a zoning ordinance.
Staff noted that the variance does meet The Code of Virginia 15.2309 (2) and the Frederick County
Code. The proposed variances appear to be consistent with the character of the District.
Mr. Cheran stated that the applicant is not here but the applicant’s son-in-law, Mr. John Deemen,
is here to answer any questions. My wife’s parents are moving to the area to be close to us and
would like to enjoy the view outside with a covered deck.
Chairman Lowman asked if there is anyone wishing to speak in favor or in opposition of this variance
to come forward.
Public Hearing Closed
A motion made by Mr. Rinker and seconded by Mr. Cline, Variance #13-24 for Mahlon &
Dorothy Estep was unanimously approved as presented.
There being no other business, the meeting adjourned at 4:25.
________________________________
Eric Lowman, Chairman
________________________________
Pamala Deeter, Secretary