Loading...
HomeMy WebLinkAboutBZAMinutes2025May20Frederick County Board of Zoning Appeals 1941 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 20, 2025. PRESENT: Eric Lowman, Chairman, Red Bud District; Linda Whitacre, Gainesboro District; John Cline, Stonewall District; Dolores Stottlemyer, Shawnee District; Dudley Rinker, Vice-Chairman, Back Creek District; and Ronald Madagan, Member at Large. ABSENT: James Prohaska, Opequon District STAFF PRESENT: Wyatt Pearson, Direct of Planning; 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. Chairman Lowman asked if there are any applications for June. Mr. Cheran replied, the cutoff is this Friday, May 23, 2025. Mr. Cline made a motion to approve the meeting minutes for April 15, 2025, with a correction, and it was seconded by Mr. Madagan and was unanimously approved. Chairman Lowman suggested that the order of the agenda be changed because appeals usually take a longer time. Mr. Cline made a motion to change 4.B. Appeal #07-25 Cordell & Kim Watt to 4.C and the 4.C. Variance #08-25 Anissa Borsato & Michael Donald to 4.B. and it was seconded by Mr. Rinker and was unanimously approved. Chairman Lowman swore in the citizen that would be speaking on the Appeal #07-25 Cordell & Kim Watt. PUBLIC HEARING Chairman Lowman read Variance #06-25 for Matthew Saville submitted a request for a 49.5- foot variance to a required 50-foot left side yard setback resulting in a 0.5-foot left side yard setback for an attached one car garage. The property is located at 143 Macaboy Lane, Clear Brook and is identified with Property Identification Number 34-A-50 in the Stonewall Magisterial District 4 Frederick County Board of Zoning Appeals 1942 Mr. Dean came forward to present his staff report. He presented two maps of the property. This property is located at 143 Macaboy Lane, Clear Brook in the Stonewall Magisterial District and the zoning is RA (Rural Areas). Staff explained that Mr. Saville is requesting a 49.5-foot variance to a required 50-foot left-side yard setback which will result in a 0.5-foot left-side yard for an attached garage on a 0.60-acre property. Building restrictions were not assigned to this parcel so the applicant would need to follow the current setback in the RA (Rural Areas) District. Mr. Dean mentioned the reason for the variance is the septic and drain field are behind the dwelling and the right side is the AC Unit which prevents the applicant from adding an addition. Mr. Dean gave the background information on the property. Originally the property was zoned A-2 (Agricultural General) at the adoption of Zoning in 1967. At the adoption of zoning, the setbacks were 35 feet for the front, rear, and side yards. Then in 1989 the ordinance was amended, changing the A-2 District to RA District. Again, on February 28, 2007, the Board of Supervisors amended the setbacks for this District making this property 60 feet for the front, 50 feet for the rear, and 50 feet for the left and right side. Mr. Dean pointed out that the applicant has two adjoining properties to the south. One property is 0.51 acre and the other is 3.17 acres. Staff read the Code of Virginia & Frederick County Zoning Ordinance. a) The property interest for which the variance is being requested was acquired in good faith; b) Any hardship was not created by the applicant for the variance; c) The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; d) The condition or situation of the property concerned is not of 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; e) 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; and f) The relief or remedy sought by the variance is not available through a conditional use permit process or the process for modification of a Zoning Ordinance. Mr. Dean said in closing that the variance appears to be consistent with the district; and meets the intent of The Code of Virginia and Code of Frederick County. A board member inquired, is this garage going to be 6 inches from the property line. Mr. Dean stated that is correct according to the survey that was submitted by Mike Artz.” Mr. Saville is aware that he would need an as-built survey if it is that close. 5 Frederick County Board of Zoning Appeals 1943 The Applicant, Mr. Saville, came forward to answer questions the board might have. Mr. Saville stated why he could not place the garage in a different location and why the garage was close to the property line because he has a side porch with steps. Mr. Saville said the garage needs to be big enough so he can open the door to his vehicle. Mr. Saville passed out a letter from a neighbor (The Chapmans) stating no opposition of the garage. Mr. Saville suggested he could purchase property from the Chapmans. There was some confusion on the Applicant’s part about the plat as to how close the garage would be from the property line. A board member asked Mr. Cheran to explain. Mr. Cheran stated the minimum lot size in Frederick County is two acres. The neighbor’s parcel is only 1.71 which is non-conforming. The County would not sign off on a boundary line adjustment for that. The Applicant is here for what he applied for according to the plat that was submitted. Chairman Lowman gave the Applicant an option to continue public hearing or go back to surveyor and reconfigure the garage. If his choice is to contact the surveyor, then the Board will table the application. When another survey is submitted to the County where the garage is at least 5 feet off the property line then the Board could reconsider the application and vote on that survey. Mr. Saville stated he would like to proceed with the public hearing today. Public Comment Chairman Lowman asked if anyone would like to speak in favor or opposition of this request. No citizens came forward. Public Hearing Closed The Board discussed the closeness to the property line. They talked of different options they could offer the Applicant. He could redesign the garage and make it smaller, or the Board could table the action today until the Applicant talks to his surveyor and then he could come back to the Board, or the Board could vote today. The Board explained this to Mr. Saville, at which time Mr. Saville decided to proceed with a vote today. A committee member said the closest variance the Board has approved was 4.6 feet and if any closer they would be on the neighbor’s property trying to build the garage. On a motion made by Mr. Cline to deny Variance #06-25 for Matthew Saville and seconded by Mr. Madagan and was unanimously denied. PUBLIC HEARING Chairman Lowman read Variance #08-25 Anissa Borsato and Michael Donald submitted a request for a 9-foot variance to a required 15-foot right side yard setback resulting in a 6-foot right side setback for a detached garage. The property is located at 1007 Laurel Grove Road, Winchester and is identified with Property Identification Number 72-A-47 in the Back Creek Magisterial District. 6 Frederick County Board of Zoning Appeals 1944 Mr. Dean came forward to present maps and his staff report. The property is 21,554 sq foot acreage and is zoned RA (Rural Areas) District. The applicant is requesting a 9-foot variance to a required 15-foot right side setback which will result in a 6-foot right side setback for a detached garage. Staff noted the parcel does not have Building Restriction Lines (BRL) assigned to it. That means the Applicant would need to meet the current RA District setbacks. In 1967, at the adoption of the ordinance the parcel was identified as A-2 (Agricultural General) and the setback for an accessory structure was 20 feet from all property lines. The ordinance was amended in 1989 changing A-2 (Agricultural General) District to RA (Rural Areas) District. On February 28, 2007, the County amended the ordinance to the primary setbacks. Staff read the Code of Virginia & Frederick County Zoning Ordinance. A) The property interest for which the variance is being requested was acquired in good faith; B) Any hardship was not created by the applicant for the variance; C) The granting of the variance will not be of substantial detriment to adjacent property and nearby properties in the proximity of that geographical area; D) 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; E) 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; and F) The relief or remedy sought by the variance is not available through a conditional use permit process or the process for modification of a Zoning Ordinance. Mr. Michael McDonald and Ms. Anissa Borsato came forward. They are requesting a variance for a 20-foot garage. They requested a variance because they do not want to encroach on the septic system. Chairman Lowman inquired as to what type of garage. The Applicant said a concrete slab with pole barn style. Public Comment Chairman Lowman asked if anyone would like to speak in favor or opposition of this request. No citizens came forward. Public Hearing Closed No Discussion 7 Frederick County Board of Zoning Appeals 1945 On a motion made by Mr. Rinker to approve Variance #08-25 for Anissa Borsato & Michael Donald and seconded by Mr. Cline and was unanimously approved. Public Hearing Chairman read Appeal #07-25 for Cordell & Kim Watt submitted to appeal the decision of the Director of Planning and Development, letter dated April 2, 2025, as it relates to Zoning Ordinance, Chapter 165, Section 301.01 Transfer of Development Rights. The property is located at 176 Edmonson Lane, Winchester and is identified with Property Identification Number 65-A- 14D in the Redbud Magisterial District. Mr. Pearson came forward presenting his appeal report and maps. This parcel has 68.27 acres zoned RA District. The location of the property is on Greenwood Road, a half of a mile from Senseny Road, and Sulfur Spring Road. A letter dated April 2, 2025, from Wyatt Pearson, Planning Director, is being appealed for the decision of Planning Director in the administration of the County Zoning Ordinance, Chapter 165, Article III Section 302.02 (6). The Code of Virginia §15.2-2311 a person aggrieved by the decision or determination of an administrative office, in this instance the Director of Planning & Development, may appeal to the Board of Zoning Appeals. This letter was a reply to Mr. & Mrs. Cordell Watt requesting a review and approval of receiving property for Transfer of Development Rights Program pertaining to parcel 65-(A)-14D. Staff explained there are several steps to this procedure for transfer of development rights. (letter of intent, letter of certification, mapping, site inspection etc.) Frederick County has adopted a local ordinance and operates a Transfer of Development Rights program. This allows for properties within a designated “Sending Areas”, which are rural in nature, to sever and sell development rights to “Receiving Areas”, which are more urban in nature. Some of the advantages of this program are conserving agricultural and forestry use of lands and preserving rural open spaces, and natural and scenic resources. The program is intended to supplement land use regulations, resource protection efforts and open space acquisition programs and encourage increased residential density where it can best be accommodated with the least impact on the natural environment and public services by: A. The property owners of rural and agricultural land preserve lands with a public benefit and while the County can provide an effective and predictable process; and B. Implementing the Comprehensive Policy Plan by directing residential land uses to the Urban Development Area; and C. A timely efficient administrative review to ensure that transfer of development right to receiving areas are processed as soon as possible and balanced with other County policies and goals, and are specific conditions adjusted accordingly to each receiving area. The criteria for sending properties are: 1. The property must be designated as Rural Area in the Comprehensive Policy Plan. 8 Frederick County Board of Zoning Appeals 1946 2. Designated on the Sending Areas Map 3. At least 20 acres in size 4. Property must be located outside of the Urban Development Area and the Sewer and Water Service Area; and 5. Frederick County Chapter 144 subdivision including but not limited to, meeting all state road and access requirements. Now for TDR purposes, if the sending property consists of more than one parcel of land, at least one lot must meet all the subdivision requirements list in Chapter 144; this lot shall be deemed the primary lot. If there is a violation, unpaid taxes, any other outstanding code violation before it can qualify for a sending property these must be corrected. The criteria for eligible receiving properties are: 1. Located in one of the following districts: RP (Residential Performance), R4 (Residential Planned Community), RA (Rural Areas). 2. The property must be on the Receiving Areas Map. 3. Property served with public water and public sewer. 4. The roads must be on state maintained roads or the ability to utilize private roads in the RP District as permitted by Frederick County Zoning Ordinance and Frederick County Subdivision Ordinance. 5. Location of the receiving properties should be located within the Urban Development Area or a designated and defined Rural Community Center as identified in the Comprehensive Policy Plan 6. Identified in the Frederick County Comprehensive Plan Policy for residential land uses. Staff’s determination is that this property does not qualify for a receiving property because the property is a designated Urban Center in the comprehensive plan. This parcel is part of the Greenwood Urban Center and is very specifically described in the Senseny/Eastern Frederick Urban Area Plan. Frederick County Comprehensive Plan definition for Urban Center is: “Urban centers are larger than the neighborhood village and are envisioned to be a more intensive, walkable urban area with a large commercial core, higher densities, and designed around some form of public space or focal point. Urban centers should be located in close proximity to major transportation routes and intersections.” This can be found in the Comprehensive Plan on page 4. Staff determined that the receiving property must be identified in the Frederick County Comprehensive Plan as a residential land use and this property has been determined to be in the Urban Center. The Urban Center could contain a residential component, but they are not planned for residential land use. A Master Development Plan would layout the site for large commercial component and some residential. The Urban Center must have a large commercial component and a higher density of development. 9 Frederick County Board of Zoning Appeals 1947 Staff mentioned in June each year, the County takes application to amend the Comprehensive Plan. This is an option for the applicant, but the ultimate decision is the Board of Supervisors. Staff is requesting that the Board uphold the decision of the Planning Director in regard to §165-302.02 receiving properties. Mr. Pearson introduced Mr. Ben Butler representing the Applicants, Cordell & Kim Watt. Mr. Butler stated that his co-counsel, Mr. Michael Derdeyn will be presenting the case. Mr. Derdeyn came forward and passed out exhibits. He stated the determination is based on the letter dated April 2, 2025, in paragraph 2. The paragraph is stating parcel (65-A-14D) does not qualify for receiving property because this property is a designated Urban Center and not listed in the Comprehensive Plan for residential land uses. This is the basis of the determination of the Planning Director. Mr. Derdeyn mentioned if this were in an urban center area, the application for receiving property would not be eligible, but in past practices that was not the case. (Example: Opequon Crossing and Fairfax Downs). Mr. Derdeyn proceeded with the criteria of receiving properties. 1. Yes, the property is listed in one of the following zoning districts RP, R4, and RA. 2. Yes, the property is on the receiving map. 3. Yes, there is public water and sewer. 4. Yes, there is state maintained roads. 5. Yes, the property is located in the Urban Development Area. 6. Criteria reads, identified in the Frederick County Comprehensive Plan for residential land uses. Under the section residential development in the Comprehensive Plan page 20 states: The Urban Development Areas (UDA) is the portion of the County which has been identified as the area where more intensive forms of residential development will accommodate the anticipated residential growth within the Community. While the UDA currently consists of primarily suburban resident types of development, with some multifamily units, particular areas have been identified to accommodate a more intensive mix of land uses and residential housing opportunities. Mr. Derdeyn proceeded to read, the UDA is designed to accommodate increased residential densities because it is adjacent to or in near proximity to necessary infrastructure and public facilities. These facilities include public water and sewer, schools, emergency services, and a transportation network more capable of handling the increased trips from higher density residential uses. To further encourage residential development in the Urban Areas rather than Rural Areas, the County adopted a Transfer of Development Rights Program (TDR) in the spring of 2010. The counsel proceeded with page 21 under Goals/Strategies; the number one goal is new residential development should be focused within the Urban Development Area. Strategies for the UDA are higher density residential development and are encouraged in close proximity to or mixed with commercial areas to enhance walkable access to employment, shopping, and entertainment. The County’s’ point of view and the Applicant’s point of view differ on #6 eligible criteria for receiving properties. The counsel stated that it was identified in the Frederick County Comprehensive Policy Plan for residential land uses. The County is reviewing this solely as a residential land use. Mr. Derdeyn stated the client is not at the Master Development stage. That 10 Frederick County Board of Zoning Appeals 1948 stage comes after the client receives notification that the property can be used as a receiving property. Only, then does §165-3-3.02 Development Approval Procedure list the requirements of developments such as Master Development Plan and Subdivision design plan. The County Attorney, Steve Briglia approached the podium. He stated the County encourages us to develop in certain areas and to keep the land rural as well. This particular property is not in the appropriate place for receiving properties. The Comprehensive Plan is reviewed every five years. This parcel is located on the map in the defined Greenwood Urban Center and that is a long-term goal for the County to have a mix-use area. In between the five-year update of the Comprehensive Plan, the County accepts Comprehensive Amendments each year and the deadline is June 1. Counsel continued by stating the Comprehensive Plan is the master plan for the County and its uses in certain areas. This area is defined as an Urban Center and is specific to Greenwood Urban Center which would have mixed uses. The property has a historical farmhouse and most of the property is undeveloped. The Director of Planning researched and determined that this is not a receiving property based on the maps in the Comprehensive Plan and the future goals for the County and this is intended for mixed use not all residential. Mr. Pearson stated, under section 165-302-02 subsection A #6, he disagrees with Mr. Derdeyn. He noted it reads that it is identified in the Frederick County Comprehensive Policy Plan for residential land uses. If this is not for residential use, Mr. Derdeyn stated it should read solely for residential land use. If that is not the intent for the County, then the ordinance section should be changed. Mr. Briglia continued, there are several areas in the County where properties are eligible to be receiving properties. These properties are not in an Urban Center or a defined Urban Center. If the Board overturns the decision of the Director of Planning, then the County does not need a Comprehensive Plan for the future. Mr. Derdeyn came forward to address Mr. Briglia’s statement regarding the Comprehensive Plan. The applicant is just in the eligibility stage. This parcel is in the Urban Center and meets the six criteria and is in an Urban Center for receiving property. He questioned as to why the County put the property in an Urban Development zone as a designated receiving area in an Urban Center if they were not going to say it is eligible to be a receiving property. If the Board overturns the decision and the applicant sells to a developer, possibly then they would need a Comprehensive Plan Amendment to start the development. He concluded, if this was not meant to be a receiving property then the Comprehensive Plan should be drafted to state solely residential use, and the County has had time to review the Comprehensive Plan and make changes. Public Comment Chairman Lowman asked if anyone would like to speak in favor or opposition of this request. Mr. Greg Unger came forward and stated he was on the Planning Commission and the committee when the TDR program began. The Watt’s meet the criteria and agrees in preserving a farm. 11 Frederick County Board of Zoning Appeals 1949 Mr. Kevin Kenney came forward; he is in favor of the Watt’s application. He noted, the Comprehensive Plan is a guideline for the County which is a good thing. He believes the receiving property guidelines wording needs to be addressed. Public Hearing Closed Mr. Madagan told the committee he spoke to the owner several years ago and he was offered 12 million dollars for 145 acres of property. He stated the owner’s intent was to keep the farm and pass it on to family members. The County would be preserving 2,000 acres. Now, Fairfax Downs has two developers, one for commercial and one for residential. Mr. Madagan asked, the County already has TDR receiving properties just like this one, what is the difference with Mr. Watt’s. Mr. Rinker stated he is in favor of anything to preserve rural land. The TDR program is to preserve farms. The County could put houses where the soil is not suitable for farming. We need to be respectful of what the property owner is trying to do. Chairman Lowman stated he is proud of the history of the rural areas. He is a property rights person as long as it is within the law. He noted, the Board is here to make the determination on the receiving property, not the end result. The County would give insight as you work through the stages of the TDR program and what would be the best results for the business, homeowners and for the County. Ms. Stottlemyer stated the TDR program needs to be reviewed again. On a motion made by Mr. Madagan to overturn the decision of Appeal #07-25 for Cordell and Kim Watt from the Planning Director, Wyatt Pearson, and seconded by Mr. Rinker and unanimously overturned. The meeting was adjourned at 4:50. __________________________ Eric Lowman, Chairman _________________________ Pamala Deeter, Secretary 12