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HomeMy WebLinkAboutBZA 11-16-10 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZONING APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia November 16, 2010 3:25 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of October 19, 2010 PUBLIC HEARING 3) Variance Request #06-10 of Cynthia Bergman, presented by Darren Foltz, for a 35 foot front yard variance, resulting in a 25 foot front yard setback, for the construction of a detached two-car garage. This property is located at 251 Lake Serene Drive, and is identified with Property Identification Number 31B-1-21 in the Gainesboro Magisterial District. 4) Appeal Application #07-10 for Historic Jordan Springs, represented by Stephen Pettler, Esquire, who is appealing the decision of the Zoning Administrator pertaining to violations committed under Section 165-101.07D - Compliance Required; Required Permits, and Section 165-102.06 - Conditional Rezoning, related to the proffered conditions of Rezoning #10-01. The subject property is located at 1160 Jordan Springs Road, and is identified with Property Identification Numbers 44-A-294 and 44-A-294A in the Stonewall Magisterial District. 5) Other MEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Bu ilding, 107 N . Kent Street, Winchester, Virginia, on October 19, 2010. PRESENT : Bruce Carpenter, Gainesboro District; Jay Givens, Back Creek District; R. K. Shirl ey, III, Opequon District; and Robert W. Well s, Member-At-Large. ABSENT: Kevin Scott, Chairman, Shawnee District; Robert Perry, Vice Chairman, Stonewall District ; and Eric Lowman, Red Bud District. STAFF PRESENT: Mark R. Cheran, Zoning Admi nistrator; Dana Jolmston, Zoning Inspector; and Bev Dellinger, BZA Secretary. CALL TO ORDER Chairman Scott and Vice Chairman Perry were unable to attend the meeting. Mr. Jay Givens agreed to stand in as Acting Chairman. The meeting was called to order by Acting Chairman Givens at 3:25 p.rn. and he determined that four members are present and that is a quorum since there are seven members. However, the State Code is silent on this matter and in instances such as this, the Board of Zoning Appeals has operated under the assumption that all four members must vote in the affirmative in order for the variance to be approved. Furthermore, in the case of a split vote, two ayes and two nays, the variance would be considered denied. Acti ng Chairman Givens asked Mr. Cheran if there are any items for the November 16th meeting. Mr. Cheran responded there will be a meeting in November. Mr. Cheran went on to say he felt i t would be wise to ask if the applicant wants to be heard today, or to wai t until next month when, hopefully, all members will be present. Mr. Benjamin Butler, who is representing the owner, stated that it wou ld be a better idea to table the variance request at this time. Acting Chairman Givens asked for a motion. Mr. Wells made a motion to table Variance Request #06-10 of Cynthia Bergman until the next meeting of the Board of Zoning Appea ls. Mr. Carpenter seconded the motion and it passed by unanimou s vote. Acting Chairman Given s asked if the members had any corrections or additions to the August 17, 2010 BZA minutes. There were none and, on motion by Mr. Carpenter and seconded by Mr. Shirley, the August 17, 20 I 0 minutes were approved as presented. Frederick County Board of Zoni ng Appeal s October 19, 2010 Page 1547 PUBLIC HEARING Variance Request #06-10 of Cynthia Bergman, submitted by Darren Foltz, for a 35 foot front yard variance, resulting in a 25 foot front yard setback, for the construction of a detached two-car garage. This property is located at 251 Lake Serene Drive, and is identified with Property Identification Nu mber 31B-1-21 in the Gainesboro Magisteria l District. ACTION -VARIA NCE TABLED BY APPLICANT Other Mr. Cheran told members that the Arogas Appeal which the BZA heard some time ago, was heard at the State Supreme Court level. The Cou rt's decision was 7-0, citing that the BZA acted correctly, as well as the interpretation by the Zoning Administrator as to the proposed site plan and proffers, was handled correctly. There being no further business, the meeting adj ourned at 3:40 p.m. Respectfu lly submitted , James Givens, Acting Chairman Bev Dellinger, Secretary Frederick Cou nty Board of Zoning Appeals October 19, 2010 Page 1548 VARIANCE APPLICATION #06-10 CYNTHIA BERGMAN Staff Report for the Board of Zoning Appeals Prepared: November 2, 2010 Staff Contact: Dana M. Johnston , Zoning Inspector This report isprepared by the Frederick County Planning Staff loprovide 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 mailer. BOARD OF ZONING APPEALS HEARING DATE: October 19, 2010 - Tabled by Applicant November 16, 2010 -Pend ing SUMMARY FROM OCTOBER 19, 2010 MEETING: The Board did not hea r the pu blic hea ring because the applicant decided to table this application until November 16, 2010. There were four members of the Boa rd present, which is a quorum; however, the vote would have had to be unanimous for approval of the variance. LOCATION: 25 1 Lake Serene Drive MAGISTERIAL DISTRICT: Gainesboro PROPERTY ID NUMBER: 31B-1 -2 1 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) Land Use: Residential ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) Use: Lake South: RA (Rural Areas) Use: Vacant East: RA (Rural Areas) Use: Residential West: RA (Rural Areas) Use: Vacant VARIANCE REQUESTED: The applicant is requesti ng a 35 foot front property line variance, resulting i n a 25 foot front yard setback, for the construction of a detached two-car garage. Variance Application #06- 10 -Cynthia Bergman November 2, 2010 Page 2 REASON FOR VARIAN CE: The subd ivision was created prior to the current setback requirements set forth for the RA (Rural Areas). STAFF COMMENTS: Frederick County adopted zoning in 1967. The Frederick County historical zoning map shows this property was zoned A-2 (Agricu l tural 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. Frederick County amended i ts Ordinance in 1989 to change the A-2 zoning district to the current RA (Rural Areas) Zoning District. The Frederick County Board of Supervisors amended the setbacks for the RA Zoning District on February 28, 2007, making the current setbacks for this property 60 feet to the front, 50 feet to the rear, and 50 feet to both sides. A garage, by the Frederick County Zoning Ord inance, is defined as an accessory use and is subordinate to the principal use (house) of the property. The setbacks for an access01y use (garage) in the RA zoning district are: Front 60 feet, Rear and Side 15 feet. The applicant is requesting a 35 foot front yard variance, resulting in a front yard setback of 25 feet, for the construction of a detached two-car garage. The applicant believes that the steep topographic conditions prohibit the building of this garage to meet the RA setback requirements. The property has not met the tlu-eshold requirement of an undue hardship as to the use of the property. The undue hardship would apply if a principal use (house) could not be built on this parcel due to the ord inance that is in effect. Therefore, this application for a variance does not meet the requirements as set forth by The Code of Virginia 1950 as amended 15.2-2209(2), and Section 165-100 1.02 (C) of the Frederick County Zoning Ordinance. The strict application of the Frederick County Zoning Ordinance does not produce an und ue hardship as required by the Code of Virginia. STAFF CONCLUSIONS FOR THE NOVEMBER 16, 2010 MEETING: Jn conclusion, this variance request does not meet the intent nor the requirements of The Code of Virginia 1950 as amended 15.2-2309 (2) and Section 165-1001.2(C) of the Zoning Ordinance, as it relates to the threshold of a hardship. Staff would recommend denial of this variance application APPEAL APPLICATION #07-10 HISTORIC JORDAN SPRINGS Staff Report for the Board of Zoning Appeals Prepared: November 8, 2010 Staff Contact: Mark R. Cheran, Zoning Administrator This report is prepared by the Frederick County Planning Staff to provide information to tlte Board of Zoning App eals to assist titem in making a decision on this request. It may also be useful to otlters interested in titis zoning matter. BOARD OF ZONING APPEALS HEARING DATE: November 16, 2010 - Pending LOCATION : The property is located at 1160 Jordan Springs Road. MAGISTE RIAL DISTRICT: Stonewall PROPERTY ID NUMBER(S): 44-A-294 and 44-A-294A PROPERTY ZONING & USE: Zone: B-2 (Business General) and HA (Historic Overlay) Land Use: Historic and Office ADJOINING PROPERTY ZONING & USE: N01th: R4 (Residential Plairned) Land Use: Vacant East: RA (Rural Areas) Land Use: Vacant South: RA (Rural Areas) Land Use: Vacant and Residential West: R4 (Residential Pla1med) Land Use: Vacant APPEAL: Applicant is appealing the decision of the Zoning Administrator pertaining to the proffered uses on this property, as well as violations committed under Sections 165-10 l.07D and 165-102.06 of the Frederick County Zoning Ordinance. REASON FOR APPEAL: Applicant states the properties are not in violation of approved proffers. Appeal Application #07-10, Historic Jordan Springs November 8, 2010 Page 2 STAFF COMMENTS: The property has been utilized in the past as a resort, a hotel, a seminary by the Missionary Servants of the Holy Trinity, a rehabilitation center by Shalom et Benedictus, and more recently as offices for County Court Reporters, Inc. In 2001 , the Frederick County Board of Supervisors approved Rezoning #10-01 for Jordan Springs (County Court Reporters, Inc.) which rezoned the 10.33 acre site from the RA (Rural Areas) District to the B2 (Business General) District with proffers, and with the HA (Historic Area) Overlay Zone. The voluntary proffered conditions associated with Rezoning #10-01 restricted the site usage to: • Health Services • Legal Services • Engineering, accounting, research, management, and related services • General business offices • Public buildin gs • Residential use, which are accessory to allowed business uses Since the property had not been uti l ized for more than one year prior to the approval of Rezoning # 10-01, the property would not have any legally nonconformin g uses and all future use of the property would be guided by the proffered conditions associated with Rezoning #10-01. In the summer of 2009, the property owners were informed that certain activities being conducted on the property (special events such as weddings, dinners and other similar events) were not permitted and were i n violation of the proffered conditions associated with Rezoning #10-01 . It was further explained that in order to remedy this violation, the property owner needed to either cease the uses or secure a proffer amendment to include the new uses (i.e., special events such as weddings, dinners and other events). The submission of a proffer amendment application (i.e., Rezoning Application) and gaining its approval by the Board of Supervisors would be the initial step towards resolving the violations on the property. Staff had several discussions and meetings with the owners in an attempt to rectify the situation. The applicant submitted a Rezoning Application, #06-09, in order to revise proffers associated with the previously approved Rezoning # 10-01 and to expand the property 's permitted uses. The Pla1ming Commission heard this application on January 6, 2010, and recommended approval to the Frederick County Board of Supervisors. The application was scheduled for public hearing before the Board of Supervisors three times; the applicant requested the hearing be tabled on two occasions and finally withdrew the application on August 11,2010. Therefore, the Board of Supervisors has not approved a subsequent zoning amendment on the property to permit the conm1ercial activities occurring on this property (i.e., special events such as weddings, dinners and other events). Without a pending rezoning application seeking to amend the property 's proffer , yet the illegal uses Appeal Appl ication #07-10, Historic Jordan Springs November 8, 2010 Page 3 were contin uing to be operated on the property, the applicant was cited on August 25, 2010 for violations of the Frederick County Zoning Ordinance with regards to the Board of Supervisors approved proffers associated with Rezoning # 10-01. (See Letter of Violat ion.) The applicant is appealing the decision of the Frederick County Zoning Ad m inistrator regard ing the enforcement of proffers assigned to Rezoning #10-01 , to include the following: 1. . The appl icant has stated that the hair salon on the property is not operated by the owners, and that the salon is used i n conjunction with events hosted at the property. Staff Response: The property owner is responsible for adhering to zoning ordinance req uirements applicable to the property, regard less of who might be operating the use or business. A business license \·Vas submitted for a hai r salon located within an accessory structure on the property; the busi ness license was denied for the reason that Section 165-101.07D of the zoning ordinance requires that no structures be occupied unless the requirements of the Frederick County Zoning Ordinance are met. A hair salon is not a permitted use depicted by the approved proffers associated with Rezoni ng # 10-0I . This building was occupied by the salon, yet the build ing was never issued a Certificate of Occupancy (CO) for a change of use to enable a hair salon. 2. The applicant states the property has hosted events such as weddings and wedd ing receptions, special events and corporate events, charity pub nites with live entertainment, and other corporate events on the property. The applicant further states that the property has been used for events since 1949 and has had commercial activities since 1972. The applicant states that the "Public Buildings" use permits these various uses. Additiona lly, the applicant states that the Frederick County Zoning Code does not define a "Public Build i ng", and historical usage of the building on the property is, therefore, exempt from the requirements of obtaining a Ce11ificate of Occupancy (CO). Staff Response: In the past, the property may have operated with the uses the applicant stated in the appeal application. However, the owners of the prope11y requested the property be rezoned with proffer s, and upon granting approval of the rezoning application, the Board accepted the applicant's list of the uses which would be permitted on the property - these proffered uses are the only uses that can be conducted on this property. It is important to note that proffers are conditions that a property owner voluntarily offers to be placed on the property when the owner asks the County to rezone the property. When a rezoning is approved with proffers, the proffers provide restrictions on the property beyond the regulations of the zoning d istrict in which the property is located. Add itiona lly, uses which are disconti nued for more than one year are no longer deemed legally nonconforming and must cease to operate. Appeal Appl ication #07-10, Historic Jordan Springs November 8, 2010 Page 4 Therefore, events being held on the properly I isled with this application, and the events noted on the applicants' website and flyer (See attached Web pages and flyer), are not permitted uses by the proffers approved with Rezoning # 10-01 . The property is in violation of Seetion 165- 102.06 of the fo'rederick County Zoning Ordinance. This section of the ordinance sets forth the procedures for cond itiona l rezon ing, proffered cond i t i ons, and enforcement ofrezoning conditions. Furthermore, this section requires that when a proffered condition is accepted as parl of an amendment to the Frederick County Zoni ng Ordinance, the conditions shall remain in effect and be held in compl iance until a subsequent amendment changes the zoning on the properties covered by the conditions. All properties located within Frederick County's commercial and industrial zoning districts (such as the B2 District in which the subject property is located) are identified by thei r use(s), i.e., restau rants, medical offices, retai l stores, etc., and are considered public places, only in the sense that they are open to the public. They are not public buildi n gs as suggested by the applicant; a pu blic bu ild ing would be owned or occupied by a government entity as referenced in the above paragraph . The reference to public building(s) in the context of the rezoning of this property was to allow the property owner to lease office space for government services or agencies, i.e., social services, satellite office for local government, sheriff's office sub-station. This use would apply to state and federal government services as well. The uses and events that are currently occurring on the property are not specifically identified as permitted uses in the proffer approved with Rezoning # 10-01, and are violations of the associated proffers. As to the applicants' contention that a CO is not required for the property based on the historical usage for ongoing activities, this is simply not the case. These buildings are required to be in compliance with the Frederick County Zoning Ordinance and have a CO to operate. STAFF CONCLUSIONS FOR THE NOVEM BER 16, 2010 MEETING: The decision of the Zoning Administrator, with regards to the interpretation and enforcement of the proffered conditions associated with Rezoning # I 0-01, is correct. Rezoning # 10-0 1 specifically listed the permitted uses for the property, and said list clearly did not include the activities in question such as: special events such as weddings, di1mers and other similar events. A ny changes to the proffers or uses on this property are beyond the scope of the Board of Zoning Appeals, and is a legislative action involving the Frederick County Board of Supervisors not the Board of Zoning Appea l s. Staffis requesting the Board of Zoning Appeal s to affirm the decision of the Zoning Adm inistrator in the administration of the Frederick County Zoning Ordinance regarding the violations of the proffered uses on this property.