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HomeMy WebLinkAboutBZAMinutes2025September16 Frederick County Board of Zoning Appeals 1968 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 September 16, 2025. PRESENT: Dudley Rinker, Vice-Chairman Back Creek; John Cline, Stonewall District; James Prohaska, Opequon District; Linda Whitacre, Gainesboro District; Dolores Stottlemyer, Shawnee District and Ronald Madagan, Member at Large. ABSENT: Eric Lowman, Chairman, Red Bud 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 October. Mr. Cheran replied, yes the cutoff is this Friday, September 19, 2025. Mr. Cline made a motion to approve the meeting minutes with a correction for July 15, 2025, and was seconded by Mr. Prohaska and was unanimously approved. PUBLIC HEARING Variance #16-25 for Middletown Data Center (Maxwell H. Wiegard, Esq.) submitted a request for a 45-foot variance to a required 75-foot front yard setback resulting in a 30-foot front yard setback for an addition (generator). The property is located at 8209 Valley Pike, Middletown and is identified with Property Identification Number 90-A-58C in the Back Creek Magisterial District. Mr. Cheran came forward to present his staff report and two maps of the property. Mr. Cheran explained this particular parcel has two fronts because it is on a corner lot. The shortest side is always considered the front in this case Interstate 81 side needs the variance. This parcel was created in 1970, and the zoning is M1 (Light Industrial). The setback lines at the adoption of the Zoning Ordinance were 75 feet for the front, and 25 feet from the rear and sides. Staff read the Code of Virginia 15.2-2309(2) & Frederick County Zoning Ordinance 165-1001.02. 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; Frederick County Board of Zoning Appeals 1969 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. Cheran said in closing that this property cannot meet the current M1 primary setbacks due to the narrowness of buildable area. The variance appears to be consistent with the District and meets the intent of The Code of Virginia and Code of Frederick County. Maxwell Wiegard represents the applicant. Mr. Wiegard states the college is in need of additional backup power because customer needs are demanding and increase compacity of students. Throughout the property there are water and easement restrictions. This prevents certain placement of the addition (generator). Mr. Wiegard handed out two exhibits. He explained the first exhibit is the general proposed data center addition, electrical equipment, generator with proposed building setback requirements, easements, and water restriction. The second one is an arial view of the I81 side of property with the new pad. Mr. Prohaska verified if the generator would be enclosed because of the noise and the generator will be a natural gas generator. Vice-Chairman Rinker inquired about the old generator. Mr. Wiegard stated they have been disposed of. PUBLIC COMMENT Vice-Chairman Rinker asked if anyone would like to speak in favor or opposition of this request. No one came forward. PUBLIC HEARING CLOSED On a motion made by Mr. Prohaska to approve Variance #16-25 for Middletown Data Center LLC, was seconded by Mr. Madagan and was unanimously approved. PUBLIC HEARING Variance #17-25 for Alan Newlin, II (Mike Artz) submitted a request for a 49.8-foot variance to a required 100-foot right side yard setback resulting in a 50.2-foot right side yard setback and a request for a 7.3-foot variance to a required 60-foot front setback resulting in a 52.7-foot front yard setback for a dwelling. The property is located at 777 McDonald Road, Winchester and is identified with Property Identification Number 51-A-118 in the Back Creek Magisterial District. Mr. Cheran came forward to present his staff report. He presented two maps of the property. Mr. Cheran proceeded with background information on the parcel. This parcel is located on McDonald Road and is 1.1162 acres and is zoned (RA) Rural Areas in the Back Creek Magisterial District. This parcel was created in 1979, and the zoning was A-1 District. In 1989, the ordinance was amended by changing A-1 to RA District. Again, the Board of Supervisors amended the ordinance in 2007 changing the setback to 60 feet from the front, 50 feet from the left, 100-feet from the right and 100 feet from the rear of the property. Frederick County Board of Zoning Appeals 1970 Staff stated this parcel cannot meet the current setbacks so the Applicant is requesting a 7.3-foot variance to a required 60-foot front yard setback which will result in a 52.7-foot front yard and a 49.8-foot variance to a required 100-foot right side yard which will result in a 50.2-foot right side yard setback. Staff read the Code of Virginia 15.2-2309(2) & Frederick County Zoning Ordinance 165-1001.02. 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. Staff concluded, with the proposed variance, it meets the criteria of the Code of Virginia and Code of Frederick County and is consistent with the character of that District. Mr. Mike Artz came forward representing the Applicant. The reason for this application is because there is an existing trailer on the parcel which dates to the 1970’s. The trailer does need to be replaced. The footprint of the replacement trailer is larger than the existing trailer. The trailer will be placed so the setbacks for the road and right side will remain the same as the existing trailer now. PUBLIC COMMENT Vice-Chairman Rinker asked if anyone would like to speak in favor or opposition of this request. No one came forward. Ms. Stottlemyer asked if the trailer is occupied now. The reply was yes. PUBLIC HEARING CLOSED On a motion made by Mr. Madagan to approve Variance #17-25 for Alan Newlin II and was seconded by Mr. Cline and was unanimously approved. PUBLIC HEARING Variance #18-25 for Edward and Barbara Modzelesky (Mike Artz) submitted a request for a 15-foot variance to a required 25-foot rear yard setback resulting in a 10-foot rear yard setback for a covered porch. The property is located at 129 Lakeshore Drive, Cross Junction and is identified with Property Identification Number 18A1-3-1B-19 in the Gainesboro Magisterial District. Mr. Cheran came forward to present a staff report and two maps of the property. The parcel is on a corner lot and was created in 1993 within the Lake Holiday Subdivision in the R5 Zoning District. The assigned setbacks for a R5 lot are 35 feet from the front, 25 feet from the rear 35 feet from the left and 10 feet from the right side. When determining the front of a property that has two sides abutting a road or a street, the Frederick County Board of Zoning Appeals 1971 shortest distance is the front. The Lake Holiday subdivision was submitted in 1970 and there have been no changes to that subdivision design plan and no master development plan has been submitted. The R5 Zoning District would follow the RP Zoning District setbacks. Mr. Cheran stated that the Applicant is requesting a 15 foot variance to a required 25-foot rear yard setback resulting in a 10-foot-rear yard setback for a covered porch on an existing patio. Staff read the Code of Virginia 15.2-2309(2) & Frederick County Zoning Ordinance 165-1001.02. 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. Mike Artz representing Mr. and Mrs. Modzelesky pointed out the house meets the current setbacks, but it is also on a corner lot. The applicant has an existing patio and requests to enclose the patio with a screened porch. The lot beside of the applicants are under new construction. PUBLIC COMMENT Vice-Chairman Rinker asked if anyone would like to speak in favor or opposition of this request. No one came forward. PUBLIC HEARING CLOSED On a motion made by Ms. Whitacre to approve Variance #18-25 Edward and Barbara Modzelesky and was seconded by Mr. Cline and was unanimously approved. PUBLIC HEARING Variance #19-25 for Angela Barnett submitted a request for a 20-foot variance to a required 60-foot front yard setback resulting in a 40-foot front yard setback for a dwelling. The property is located at Northwestern Pike (Route 50 North) to Route 608 (Wardensville Grade), take a left onto Mall Barn Lane and is identified with Property Identification Number 59-A-16C in the Back Creek Magisterial District. Staff came forward to present a staff report and two maps. The parcel was created in 1978 with no building restriction lines so that means the applicant would need to follow today’s current setbacks. This 9.44 -acre property is zoned RA. The historical maps show this property zoned A-2 (Agricultural General) at creation of lot. At the adoption of the Ordinance, setbacks were 35 feet for the front, side and rear yard. The A-2 Zoning District was changed on February 28, 2007, making the current setback to 60-feet from the front, 50-feet from the left, and 100-feet for the right and rear of property lines. Mr. Cheran stated there is a deeded easement and topography slopes on this parcel. Frederick County Board of Zoning Appeals 1972 Staff read the Code of Virginia 15.2-2309(2) & Frederick County Zoning Ordinance 165-1001.02. 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. Ms. Barnett came forward and stated this property has been in her family since 1800. The property that she adjoins is her father. Her father has a 40-foot easement through her property to reach his land. In the back of the property, is approximately a 60 foot drop off. She would like to place a single family one level home on a concrete slab. The surrounding properties are owned by relatives. PUBLIC COMMENT Vice-Chairman Rinker asked if anyone would like to speak in favor or opposition of this request. Mr. Michael Barnett of Back Creek District came forward. His easement runs through the parcel which makes it difficult to place a house as well as the slopes. The request for a variance would be alright by him because that would affect his parcel. PUBLIC HEARING CLOSED On a motion made by Mr. Madagan to approve Variance #19-25 Angela Barnett was seconded by Mr. Prohaska and was unanimously approved. PUBLIC HEARING Variance #20-25 for Yesenia Portillo submitted a request for a 70-foot variance to a required 100-foot rear yard setback resulting in a 30-foot rear yard setback for a dwelling. The property is located at Interstate 81 South to Exit 302 to Reliance Road (Route 627) onto Huttle Road (Route 636) past Ridings Mill Road property on the right and is identified with Property Identification Number 92-A-12C in the Opequon Magisterial District. Mr. Cheran came forward to present his staff report and maps. The 2.83-acre property is located on Huttle Road in the Opequon Magisterial District and is vacant. The applicant is requesting a rear variance of 70- foot to a required 100-foot rear setback which will result in a 30-foot rear for a dwelling. Staff gave background history; currently the property is RA and does not have building restriction lines. The applicant would follow today’s setbacks. At one time the property was zoned A-2 and when zoning was adopted the setbacks were 35-feet for the front, sides and rear yards. The Board of Supervisors amended the ordinance in 1989 changing the A-2 to RA District. The setback was amended by the Board of Frederick County Board of Zoning Appeals 1973 Supervisors on February 28, 2007, making the setbacks 60-ft from the front, rear and left side is 100-ft and the right side is 60-ft from the property lines. Staff read the Code of Virginia 15.2-2309(2) & Frederick County Zoning Ordinance 165-1001.02. 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. In 2007, when the Frederick County Code changed in the RA District the left, right and rear setbacks are decided by the adjoining acreage. If the adjoining acreage is 5 acres or more it has a setback of 100 feet from the property line. If the adjoining property has less than 5 acres, the setback is 50 feet from the property line. If the property abuts an orchard or Agricultural and Forestal District the setback is 200 feet from the property line. The Board members had questions about lot creation year, is property vacant, and is the property limited development. Any citizen can purchase a parcel and may or may not have to come to the Board for a variance to build. Mr. Cheran mentioned the County does not regulate deeds or covenants. Staff makes sure that the lot is recorded in the Courthouse. The applicant did not come forward because she did not prepare a statement. Mr. Cheran mentioned that the department had several letters opposing this variance. PUBLIC COMMENT Vice-Chairman Rinker asked if anyone would like to speak in favor or opposition of this request. A resident, Steven Dove of 542 Huttle Road, had concerns about the water. Two waterways come together, and several culverts divert the water, and it floods the area where she wants to build. The proposed septic field would be flooded, and the waste would come into the stream on his property. The property is approximately 60 feet flat then goes up a steep incline. Evan Strianese at 542 Huttle Road came forward. He had several concerns about the two water ways that come together on her property. The United States Department of Agricultural inspector visited his property and suggested that animals should not consume the water because of purity of West Run. A pilot program called Conservancy Clean Water was going to research the quality of the water. Mr. Strianese presented a (phone) map from the Department of Agriculture showing a flood zone. In August 1996, High Power line was instructed by the Historian for the Historical Resource State of Virginia to work around the 542 residences because of the historic property. His land has three mills, a historical barn and a house structure on the property which is listed at #25 registered list for historical properties. A board member inquired about the distance from the 542 residence to the Yesenia Portillo property. Mr. Dove stated approximately 425 linear feet. A board member inquired if a septic could be placed on this property. Mr. Cheran replied yes, because the area placement of a septic is not in the flood zone and to his Frederick County Board of Zoning Appeals 1974 knowledge the Commonwealth of Virginia does not regulate flood zones. Staff stated if the parcel was in the Floodway or Floodplain then no septic system could be built. Also, if the property is in the Floodplain, the applicant would need to get a FEMA elevation certificate. The applicant would follow the Building and Health Department Codes. FEMA has regulations for building in the floodplain and floodways. The Building Department follows the FEMA regulations. Mr. Cheran stated the County has a Historic Resource Advisory Board. Whenever a rezoning is applied for, the County requirement is an archaeological survey of the parcel. Staff comments on the survey before the application is moved onto the Planning Commission and Board of Supervisors. Mr. Cheran mentioned, prior to 2021 no one could build in the floodway or flood plain but since then FEMA has changed the maps. A board member asks what if we granted the variance today and the applicant does not build and sells the lot. Staff replied to the variance would stay with the parcel. PUBLIC HEARING CLOSED On a motion made by Mr. Prohaska to approve Variance #20-25 for Yesenia Portillo and was seconded by Mr. Madagan and the vote was 4 to 2 approval. The meeting was adjourned at 4:45. Respectfully submitted, __________________________ Eric Lowman, Chairman __________________________ Pamala Deeter, Secretary