HomeMy WebLinkAboutBZA 11-17-15 Meeting AgendaAGENDA
FREDERICK COUNTY BOARD OF ZONING APPEALS
The Board Room
Frederick County Administration Building
107 N. Kent Street
Winchester, Virginia
November 17, 2015
3:30 p.m. CALL TO ORDER
1) Determination of a Quorum
2) October 20, 2015 Meeting Minutes
PUBLIC MEETING
3) Variance Request #06-15 of Kenneth Harper and Dorothy Harper for a 9.7 foot
variance to a required 15 foot rear setback will result in a 5.3 foot setback. This property is
located at 157 Harvest Ridge Drive and is identified with Property Identification Number
63-9-2-13 in the Gainesboro Magisterial District.
4) Other
MINUTES FOR
THE
OCTOBER 20, 2015
BZA MEETING
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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 October 20, 2015.
PRESENT: Eric Lowman, Chairman, Red Bud District; Bruce Carpenter, Vice Chairman, Gainesboro
District; Jeremy McDonald, Back Creek District; Reginald Shirley III, Opequon District; Kevin Scott,
Shawnee District; and Ronald Madagan, Member at Large.
ABSENT: John Cline, Stonewall District.
STAFF
PRESENT: Mark Cheran Zoning Administrator; David Burke, Zoning Inspector; Roderick Williams, County
Attorney, and Pamala Deeter, BZA Secretary.
CALL TO ORDER
The meeting was called to order at 3:30 p.m. and was determined there was a quorum.
Chairman Lowman inquired if there are any applications pending for the month of November. Mr.
Cheran responded yes, one application at this time. The cut-off date is October 23, 2015.
On a motion made by Mr. Shirley and seconded by Mr. Carpenter the minutes for September 15, 2015
were unanimously approved as presented.
Mr. Cheran recommended to the Board to put the old business first, Application # 03-15 James W.
Loveless Jr. appeal of the zoning administrator since the Board has already had the public hearing on this
application.
On a motion made by Mr. Shirley and seconded by Mr. Madagan the old business was heard before the
public hearing started and was approved with unanimous vote.
Chairman Lowman recused himself from the old business because of personal issues.
Vice-Chairman Carpenter led the Pledge of Allegiance.
Mr. Cheran came forward, this is the appeal application #03-15 of James W. Loveless Jr., who is
appealing the decision of the Zoning Administrator as to Chapter 165 Zoning, Part 606, under Section
165-606.02 Allowed Uses in the M1 (Light Industrial) District. This application has been postponed twice
and the Board needs to take action at this meeting.
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Mr. Cheran briefed the Board that a public hearing was held on August 18, 2015, the action at that
meeting was postponed for 30 days, while the County Attorney was consulted with legal questions and
the Applicant was working with the tenants. A public meeting was held on September 15, 2015 and the
Board postponed taking action for 30 days.
Mr. Cheran is requesting to the Board of Zoning Appeals to affirm the decision of the Zoning
Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-606.02 that
SIC-79 Amusement and Recreation Services operated indoors is not a permitted use within the M1
Zoning District.
Vice-Chairman Carpenter asked the Applicant is there any new information.
Mr. Pettler, Attorney, representing the Applicant came forward to address the Board. Mr. Pettler stated
that his client has two tenants Winchester Soccer and FASST. The two tenants would like to finish their
lease which is up in August 2016. Mr. Pettler is aware that this application according to the Board of
Zoning Appeal thinks they only have two options rather to approve or deny.
Mr. Pettler presents three points to the Board to consider while making their decision.
1. §15.2-23-07 of Virginia Code under Vested Right Not Impaired.
2. §15.2-2311 of the Virginia Code under Appeals to Board.
3. §165-1001.02 of the Frederick County Code Ordinance under Power & Duties of Board Zoning
Section A #2.
Mr. Shirley asked the question to Mr. Pettler why didn’t your client just rezone the property since she
made upgrades to property.
Mr. Pettler stated she was under the impression since the previous tenants were allowed for indoor
recreation that the new tenants would be too. The applicant was unaware of the zoning use until he
received the notice of violation letter.
Mr. Pettler stated the Board might want to seek out the written document, as to who granted
permission and how it was granted, before action is take on the application.
Mr. Williams, County Attorney, stated that this application has been to the Board two previous
meetings, the public hearing is closed, and the time to present evidence is gone. The record is now
complete. It is now being brought to the Board’s attention that there is statement being made that
there was an approval and not sure what permission was given. If there was a document, the Planning
Department would have included it with the agenda.
Mr. Williams stated the significant affirmative governmental act. The Virginia Code states 7 different
examples of what would constitute a significant governmental act.
1. Governing body has accepted proffers or proffer conditions which specific use related zoning
amendment.
2. Governing body has approved an application for rezoning.
3. Governing body or the Board of Zoning Appeals has granted a special exception or use permit.
4. Board of Zoning has approved a variance.
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5. The Governing body has approved preliminary subdivision plat, site plan, and plan of
development or the like for development of the property.
6. Governing Body has approved a final subdivision plat, site plan, plan of development for the
property.
Mr. Williams notes that 1 through 6 does not pertain to this application and Mr. William’s quoted
number 7 of the significant affirmative governmental act.
7. The Zoning Administrator or other administrative officers has issued a written order
requirement decision or determination regarding the permissibility of a specific use of density
landowner property that is no longer subject to appeal and no longer subject to change,
modification or reversal.
Mr. Williams notes that Mr. Pettler is referring to number 7 act as to where something should have been
documented or written down. Mr. Williams noted that this is the Applicant’s burden of proof to locate
this written documentation. A violation letter was mailed out on June 8, 2015, and four months has
lapsed and now we are looking for written determination in which no one has found it yet.
Mr. Williams stated that this Board is appointed by the Circuit Court and is here to do its job.
Mr. James Frisby, FASST owner, came forward. Mr. Frisby stated he would like to sta y at that location
until the end of the lease which is in August. Mr. Frisby states he has a service to offer to the
community and not trying to do anything illegal.
Mr. Madagan made a motion to uphold the decision of the Zoning Administrator, and was seconded by
Vice-Chairman Carpenter and the vote was unanimous.
Vice-Chairman Carpenter and Mr. Scott expressed empathy toward the tenants.
PUBLIC HEARING
Mr. Cheran presented Variance Application #04-15 of William G. Meier IV who is requesting a 35 foot
left side yard variance to a required 50 foot left side setback resulting in a 15 foot left side setback and a
35 foot right side yard variance to a required 50 foot right side setback resulting in a 15 foot right side
setback. The property is located in the 1,000 block of Jordan Springs Road, on the south side of the road
in the Stonewall Magisterial District and is identified by Property Identification Number 44-A-22. The
zoning of the property is RA (Rural Areas) and the adjoining properties are R4, (Residential Planned) to
the south, and the north, east and west are RA (Rural Areas).
Mr. Cheran stated the reason for the variance is the property is 0.7546 acres in size, and due to
exceptional narrowness of the parcel, a structure cannot be built with the current RA setback
requirements.
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Frederick County adopted zoning in 1967. The historical zoning maps shows this property was zoned A-
2 (Agricultural General) in 1967. The property setback lines at the adoption of the zoning ordinance
were 35 feet for the front and 15 feet for the side yards. In 1989 the ordinance was amended and
changed the A-2 Zoning District to the current RA (Rural Areas) Zoning District. Again, on February 28,
2007, the Board of Supervisors amended the current setback for this property to 60 feet to the front, 50
feet to the rear, 50 feet on the left side and 50 feet on the right side.
The adjoining properties were created prior to 1967. The setbacks for these parcels were associated
with the A-2 Zoning District setback. The setback for these properties are consistent with current A-2
setbacks, the dwellings are approximately 15 feet or less from the side property lines.
The Code of Frederick 165-1001.2 and The Code of Virginia 15.2-2309 (2), 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. 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 mediation of a zoning ordinance.
The Applicant, Mr. William Meier IV, came forward to speak. Mr. Meier noted with the current
setbacks the property is useless. Mr. Meier stated he met with Mr. Cheran and inquired as to what
his next step would be. Mr. Cheran informed him that he could appear before the Board and ask for
a variance for setbacks.
Chairman Lowman asked for anyone to come forward to speak for or in opposition.
DISCUSSION
No discussion.
Mr. Carpenter made a motion to approve Variance #04-15 William G. Meier IV and Mr. Scott
seconded, the vote was unanimous.
Mr. Cheran presented Variance #05-15 Robert Byers and Linda Byers requesting a 37 foot right side
yard variance to the required 50 foot right side setback resulting in a 13 foot right side setback for
an addition. The property is located at 2159 Senseny Road and is identified with Property
Identification Number 65-A-25B in the Red Bud magisterial district. The adjoining properties to the
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north and east are RP (Residential Performance) Zoning District and to the south and west are RA
(Rural Areas) Zoning District.
Mr. Cheran noted the reason for the variance is the property is 1.5 acres in size and due to
exceptional narrowness of the parcel and an addition to the existing structure cannot be built with
the current RA (Rural Areas) Zoning District setback requirements.
This property is part of the Braithwaite Subdivision created in 1940. The setback associated with
these parcels under the A-2 Zoning District. The County adopted zoning in 1967. The historical
zoning map shows this property was zoned A-2 (Agricultural General) in 1967. The property setback
lines at the adoption of the zoning ordinance were 35 feet for the front and 15 feet for the side
yards. The ordinance changed and was amended in 1989 to change the A-2 Zoning District to the
current RA (Rural Areas) Zoning District. On February 28, 2007, the Board of Supervisors amended
the ordinance for the RA Zoning District. The current setbacks for this property is 60 feet to the
front, 50 feet to the rear, 50 feet on the left side, and 50 feet on the right side.
Mr. Cheran noted this variance is for an addition because there is an existing dwelling on the
property. The Board might consider that the applicant may have the ability to add a second story to
the existing structure. The property is on a drainfield.
The Code of Virginia 15.2-2309 (2) and the Code of Frederick County 165-101.2, 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. 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.
Mr. Michael Artz, of Pennoni Associates, is representing the Mr. and Mrs. Byers. The house was
built in 1975 and is approximately 1100 sq ft. and has two bedrooms. The family members that live
at this address are Mr. & Mrs. Byers, their daughter and husband and two children. The house was
not constructed so a second story could be put on. There is a small room on the back of the house
and it doesn’t have a foundation. The house is 20 feet from the left side of property line and on the
right side is the Harvest Communities Properties which is RP and the setback allows you to build a
structure up to 10 feet. The front of the house is 7 feet from the existing property line and the back
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of the house unable to build because of the existing drainfield. The Byers are requesting to add a
30 foot addition to the side of the house.
Mr. Shirley asked the question what is the purpose of the addition? Mr. Artz replied bedrooms. Mr.
Shirley asked will the drainfield work with the addition. Mr. Artz replied yes.
Mr. Carpenter asked how many bedrooms are in the existing house now. Two bedrooms now
replied Mr. Artz. Mr. Carpenter clarified that this house is going from a two bedroom to a three
bedrooms.
Chairman Lowman opened the floor to any one in favor of this application . No one came forward.
Chairman Lowman opened the floor to anyone opposing this application.
Stuart Butler with Harvest Communites came forward. His property is adjacent to Mr. Mrs. Byers
property. He is not opposing this application. Mr. Butler is making sure that the applicant is aware
that the adjacent property is zoned Residential Performance (RP) and will be a subdivision of 13
single family lots. There is also a road plan in place that will run parallel between the properties.
Mr. Butler had concerns as to the height of the addition and should there be a buffer put in place.
Mr. Shirley had a question for Mr. Butler on the future subdivision. Will your subdivision be
installing fences? Mr. Butler responded I am not sure at this time but that is something we will
think about when we start to develop.
DISCUSSION
Members of the Board asked Mr. Artz a few questions. Is it a single story or two story house? Mr.
Art’s noted a single story house. Does the existing house have a crawl space or foundation? Mr.
Art’s noted a crawl space. The new addition will have a crawl space as well.
Mr. Madagan made a motion to approve Variance #05-15 of Robert and Linda Byers and was
seconded by Mr. McDonald the vote was unanimous.
Mr. Scott made a motion and Mr. Carpenter seconded the motion to adjourn the meeting.
There being no further business the meeting adjourned at 4:35 p.m.
Respectfully submitted,
_______________________
Eric F. Lowman, Chairman
_____________________
Pamala Deeter, Secretary
VARIANCE REQUEST #06-15
OF
KENNETH & DOROTHY HARPER
VARIANCE APPLICATION #06-15
KENNETH AND DOROTHY HARPER
Staff Report for the Board of Zoning Appeals
Prepared: November 10, 2015
Staff Contact: Mark 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:
November 17, 2015
Public Hearing; Action Pending
LOCATION: The property is located at 157 Harvest Ridge Drive
MAGISTERIAL DISTRICT: Gainesboro
PROPERTY ID NUMBER: 63-9-2-13
PROPERTY ZONING & USE: Zoned: RP (Residential Performance)
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RP (Residential Performance) Use: Open Space
South: RP (Residential Performance) Use: Residential
East: RP (Residential Performance) Use: Residential
West: RP (Residential Performance) Use: Residential
VARIANCE REQUESTED: The applicant is requesting a 9.7 foot rear yard variance to the required
15 foot rear setback resulting in a 5.3 foot rear setback for an addition.
REASON FOR VARIANCE: The existing dwelling had an addition built without a building
permit over the rear setback.
Variance #06-15 – Kenneth and Dorothy Harper
Page 2
November 10, 2015
STAFF COMMENTS: The original dwelling was completed in 2007, with an approved
building permit and in compliance with the rear setback. The prior owner built the addition to the
dwelling without an approved building permit. This illegal addition does not comply with the
rear setback of the single-family small lot of 15 feet. This addition was discovered by the
applicant via a building location survey done by the title company. Therefore, the applicant is
requesting this variance for clear title to this property. It should be noted that this property backs
to open space so impact is nominal.
STAFF CONCLUSIONS FOR THE NOVEMBER 17, 2015 MEETING: The Code of Virginia
15.2-2309 (2) and Code of Frederick 165-1001.2, 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) 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.
If the prior owner had applied for a building permit a survey would have been required or if the
addition could not meet the setback, the permit would have been denied. This request for a 9.7 foot
variance maybe justified from the rear setback requirements, as the applicant did not produce the
violation of the rear setback.
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B1 (Business, Neighborhood District)
B2 (Business, General Distrist)
B3 (Business, Industrial Transition District)
EM (Extractive Manufacturing District)
HE (Higher Education District)
M1 (Industrial, Light District)
M2 (Industrial, General District)
MH1 (Mobile Home Community District)
MS (Medical Support District)
OM (Office - Manufacturing Park)
R4 (Residential Planned Community District)
R5 (Residential Recreational Community District)
RA (Rural Area District)
RP (Residential Performance District)
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Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: October 22, 2015Staff: mcheran
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Note:Frederick County Dept ofPlanning & Development107 N Kent StSuite 202Winchester, VA 22601540 - 665 - 5651Map Created: October 22, 2015Staff: mcheran
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VAR # 06 - 15Kenneth and Dorothy HarperPIN:63 - 9 - 2 - 13Rear Variance