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HomeMy WebLinkAboutBZA 11-17-09 Meeting AgendaAGENDA FREDERICK COUNTY BOARD OF ZOIC#NG APPEALS The Board Room Frederick County Administration Building 107 N. Kent Street Winchester, Virginia November 17, 2009 3:25 p.m. CALL TO ORDER 1) Determination of a Quorum 2) Minutes of October 20, 2009 PUBLIC HEARING 3) Appeal Application #02-09 of Royston Eshelman Properties, LC, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pursuant to Frederick County Zoning Ordinance, Section 165-101.07 Compliance required; required permits, and Section 165-401.02, Permitted uses. The property consists of the entire portion of property contained in Frederick County, Virginia, located at 3700 Stonewall Jackson Highway, White Post, Virginia: such property is described in a deed from Audrey F. Funkhouser, Executrix of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of Court of Clarke County, Virginia, Deed Book 78 at Page 33, containing 5.13 acres more or less. 4) Other lI 113 G `U 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, 2009. PRESENT: Kevin Scott, Chairman, Shawnee District; Robert Perry, Vice Chairman, Stonewall District; Dwight Shenk, Gainesboro District; Jay Givens, Back Creek. District; R. K. Shirley, III, Opequon District; Eric Lowman, Red Bud District; and, Robert W. Wells, Member - At -Large, ABSENT: STAFF PRESENT: Mark R, Cheran, Zoning and Subdivision Administrator; Dana Johnston, Zoning Inspector; and, Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Scott at 3:25 p.m. and he determined there is a quorum. On a motion made by Mr. Wells and seconded by Mr. Shenk, the minutes for the March 18, 2008, meeting were unanimously approved as presented. Chairman Scott prescnted the next item on the agenda: Election of Officers and Adoption of Bylaws. Mr. Petry made a motion to delay this item until after the Public Hearing. Mr. Wells seconded the motion and it passed unanimously. PUBLIC HEARING Variance Request #01-09 of Brian S. Smoot for a four foot rear yard variance, resulting in a rear yard setback of 21 feet, for the construction of a single family dwelling. This property is located on Aylor Road (Route 647) at the intersection of Ayior Road and Westmoreland Drive (Route 1054), and is identified with Property Identification Number 75 -A -35C in the Shawnee Magisterial District. ACTION — VARIANCE APPROVED Mr. Johnston presented the staff report. This property was zoned R2 (Residential General) in 1967 when Frederick County adopted zoning. The property setback lines at the adoption of the Zoning Ordinance were 35 feet in the front, 10 feet on the sides and 35 feet in the rear. Frederick County amended its Ordinance in 1989 to change the R2 Zoning District to the RP (Residential Performance) District, making the current setbacks for the property 35 feet in the front, 10 feet on both sides and 25 feet in the rear. MiAutQ �o k PageB r,d $f oning Appeals 1519 i el nt Minut�OM�20 This property was originally platted for a total of 19,995 square feet. However, due to road improvements made by the Virginia Department of Transportation to Aylor Road, this lot was reduced to 8,607 square feet, 11,388 square feet less than originally platted. With the road improvements, the lot lost a significant amount of lot length, thereby making it difficult to build a house at the current setback standards. For this reason, the applicant is requesting a four foot rear yard variance, resulting in a rear yard setback of 21 feet for the construction of a single family dwelling. Mr. Johnston directed the members to their agenda packets which provided plats showing before and after the road improvements, as well as a lay -out showing the 48' X 26' proposed dwelling. In summary, Mr. Johnston stated that due to the road improvements causing a significant loss of square footage to this property, the applicant is seeking a four foot rear yard variance, resulting in a rear setback of 21 feet, in order to construct a 48' X 26' dwelling. Mr. Shirley stated that the hardship happened due to the road going through, but the deed shows compensation from VDOT in the amount of $37,500 for the land. He asked staff if the fact that the property was going from a buildable lot to a non -buildable lot was a consideration in the $37,500 compensation. Mr. Cheran responded that the applicant should address that concern. Mr. Brian Smoot came forward and identified himself as the owner of the property. Mr. Smoot stated that when VDOT purchased the land, they didn't mention anything about the rest of the lot being unbuildable. VDOT actually divided the land into three sections and they offered to buy two of the three sections, which Mr. Smoot sold to them. Mr. Smoot stated that at the time, in 2002, he had no plans of building. Chairman Scott asked if anyone wanted to voice an opinion about this application, either for or against. Mr. John Miller introduced himself as Pastor of the Abundant Life Church, an adjoining property to Mr. Smoot. Mr. Miller is concerned about the potential for encroachment on the Church's property and the added requirement for shielding should the Church build next to Mr. Smoot. There isn't a plan to build right now, but there's a potential for building in the future. Mr. Miller also is concerned about the Church's commercial entrance placed there by VDOT. Chairman Scott asked Mr. Cheran for staff's input on Mr. Miller's concerns. Mr.Cheran stated that churches in the RP zoning district have to go through the site plan process, and as such, it will be Abundant Life Church's responsibility for any mitigation against a RP -zoned property. Mr. Cheran reminded the members they can only act on the application before them. Mr. Givens asked if Mr. Smoot were to build a 22 foot building instead of 26 feet and it would fit within the footprint of the existing setback, he would be able to build the house by -right. Mr. Cheran responded that is correct. Mr. Givens asked in that case, that would not affect in any way what Abundant Life Church would have to do; the Church would still have to do the same thing, with or without this variance. Mr. Cheran stated that is correct. Mr. Shirley asked Mr. Cheran if this lot has been taxed as a buildable lot and Mr. Cheran responded yes. minut $o k Pag� fZ 1520 utes o UctUer r �$Q9°ning Appeals Chairman Scott closed the public hearing portion of the meeting. Discussion Mr. Wells asked Mr. Cheran for clarification on what Abundant Life Church would need to do if they built. Mr. Cheran stated that Abundant Life would have to provide buffers and screening along the RP property. Mr. Wells asked if Lot 2 is going to be the same situation. Mr. Cheran said it probably would be. Mr. Wells made a motion that Variance #01-09 of Brian S. Smoot be approved. Mr. Shirley seconded the motion and the vote was unanimous for approval. Mr. Cheran asked for nominations for Vice Chairman. Mr. Wells made a motion to nominate Mr. Perry as Vice Chairman. Mr. Shirley seconded the motion and it passed unanimously. Mr. Cheran asked for nominations for Chairman. Mr. Givens nominated Mr. Scott. Mr. Perry seconded the motion and it passed unanimously. Mr. Cheran asked for nominations for Secretary. Mr. Givens nominated Ms. Dellinger. Mr. Shenk seconded the motion and it passed unanimously. It was decided and voted upon unanimously that the Board of Zoning Appeals will meet the third Tuesday of the month at 3:25 PM in the Board of Supervisors Room of the Frederick County Administration Building at 107 N. Kent Street, Winchester, Virginia, Mr. Cheran reviewed the Bylaws with members and stated that the duties and business procedure components of the Bylaws have not changed from last year. It was the consensus of the Board that no changes need to be made to the Bylaws. Other Mr. Cheran spoke briefly about the upcoming appeal which is scheduled for November 17, 2009. Mr. Cheran stated that Code of Virginia 15.2-2209(2) has changed the flexibility of the hardship requirement a little bit. Mr. Cheran said a structure was built without a building permit and the property owner had to remove the deck. The property owner complained to the legislature and they decided that Zoning Boards can now consider whether this is a hardship. For example, if someone buys a house without knowing that a permit was not obtained, Zoning Boards can decide that is a hardship. However, if someone comes before the Board and admits he built a structure without obtaining a permit, the current hardship requirement applies. N14utQ $rk Pag r qoning Appeals 1521 ctnutUUe The members expressed interest in attending a seminar for Zoning Boards. Mr. Cheran stated that right now, money is the main reason why it's not being offered. Mr. Cheran stated that he'll check with Mr. Jesse Russell, who is a professor at VPI and teaches a zoning class, to see if he may be able to talk to the Board. vote. As there were no other items to be discussed, the meeting adjourned at 4:05 p.m. by unanimous Respectfully submitted, Kevin Scott, Chairman Bev Dellinger, Secretary FMinute look Page Q 1522 Minutes Mun% Bm- 10�oning Appeals c co APPEAL APPLICATION #02-09 ROYSTON ESHELMAN PROPERTIES, LC { .4 Staff Report for the Board of Zoning Appeals Prepared: November 4, 2009 Staff Contact: Mark H. 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, 2009 - Pending LOCATION: The subject property is located at 3700 Stonewall Jackson Highway (Route 277) near the intersection with Front Royal Pipe (Route 522 South). MAGISTERIAL DISTRICT: Opequon PROPERTY ID NUMBER(S): 87-3-B and 87-3-B1 PROPERTY ZONING & USE: Zoning: RA (Rural Areas) District Land Use: Illegal Outdoor Commercial Activities ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) East: State Route 522 South: RA (Rural Areas) West: RA (Rural Areas) Land Use: Residential Land Use: State Highway Land Use: Residential Land Use: Vacant APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance in determining compliance and permitted uses in the RA District. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to undocumented structures under Section 165-101.07 Compliance required; required permits, and the presence of commercial activities, under Section 165-401.02 Permitted uses. Appeal Application 902-09, Royston Eshelman Properties, LC November 4, 2009 Page 2 STAFF COMMENTS: Section 165-401.02 of the Zoning Ordinance provides for permitted land uses in the RA Zoning District. Outdoor commercial activities, i.e., flea markets, are not included as a permitted use in the RA Zoning District. The applicant was cited under the above -referenced section of the Frederick County Zoning Ordinance for operating a business not permitted in the RA (Rural Areas) Zoning District as well as under Section 165-101.07, for constructing structures without approved building permits. The applicant concedes that the term "flea market' is not defined in the Zoning Ordinance as a permitted use in the RA Zoning District. However, the applicant contends that any definition not specifically listed within the definitions of the Zoning Ordinance will be determined by the most recent edition of Meiriam-Webster's Dictionary. The Merriam -Webster's Dictionqu describes a flea market as: "open air rmrket_for second hand articles and antiques." The applicant believes that a flea market is an umbrella concept that includes several different vendors selling a variety of goods, i.e., antiques, wayside stands, and grocery items, to the public and that it mirrors Frederick County's definition of a country store, which is an allowed use in the RA Zoning District with an approved Conditional Use Permit (CUP).. Therefore, the applicant believes that the Zoning Administrator's interpretation of Section 165- 401.02 of the Zoning Ordinance is incorrect as the interpretation does not take into account that the activities occurring on this property would be permitted with an approved Conditional Use Permit in the RA Zoning District. STAFF CONCLUSIONS FOR THE NOVEMBER 17, 2009 MEETING:_ Section 165-401.02 of the Zoning Ordinance provides for permitted uses in the County's RA Zoning District. Flea markets are not listed within this section of the ordinance and are not a permitted use. The term flea market does not appear anywhere in the Frederick Zoning Ordinance. The applicant contends that the uses occurring at this flea market mirror a county store, and would be allowed with a Conditional Use Permit as an avenue to resolve this violation and allow this use to occur. A Conditional Use Permit (CUP) is a land use action approved by the Board of Supervisors, and allows for a variety of uses within the County's zoning districts. An application for a CUP is granted only for the allowed uses in a specific zoning district. A CUP applies to only one use on a particular property, not multi -uses or uses that are not listed. Therefore, Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Chapter 165, Section 165-101.07 and Section 165-401.02, undocumented structures and the presence of commercial activities as an allowed use in the RA zoning district. The use shall be discontinued and the illegal structures removed. 87 A_,6B r� ilz, BSOITMONTIE W.JR R 87 A'86i''� TACRE DAWI _ i 1 dO f N rK � �kF 77 V'.. 4, 'J 5P r'T 87 A 95 SANDY'S MOBILE HOME COURT INC X ii �7it. 87 3 A GIBSON MONTIEW JR A Y u ! 9' 87 3 B .••�, F.—RI]7 BYP.,. GIBSON MONTIE W JR it 60 \LK [,YLJGm,e� + �0.PP076A keYelawCaM1eimenPropcltloe�092B[I9-._. ul(x�upin.,�'rlpbbnrlwnd 13inlrlry4M lli(I.tn.il.r DW'Ml <:.�— kJ(knYJnitWl r6enr.J "I.—) KI'(KmlJrnrWl l'rrf.n.ouriFA lrl.lricll G`44 (.njf+ S ll.'th I.—(:.nnyl lHarlsl) i III: pIIQb.r l:dneulbni flF[ef.�ll � Mill IlD,04,1] 41M If5(krrldnnlut R—l""i C'uwmwJly uiodol � r Royston , ~ Properties 87-3-B1 R 0 250 500 a � 87 A 92— ROBEFRT$ON ETHEL S' Royston Eshelman Properties APP # 02 - 09 Appeal Request Vendor at Flea Market PIN: 87 - 3 - B Current Zoning 87-3-'B1 Map Casc Ylanncr Whcran .••�, F.—RI]7 BYP.,. 'LPRing 40--( Inde•Yom r...... lliere.p _ t❑0"mutri,L LhLI I'iRl�lal � \LK [,YLJGm,e� + �0.PP076A keYelawCaM1eimenPropcltloe�092B[I9-._. ul(x�upin.,�'rlpbbnrlwnd 13inlrlry4M lli(I.tn.il.r DW'Ml <:.�— kJ(knYJnitWl r6enr.J "I.—) KI'(KmlJrnrWl l'rrf.n.ouriFA lrl.lricll G`44 (.njf+ I:Amn llerrtnpni.elAmr ll.'th I.—(:.nnyl lHarlsl) i III: pIIQb.r l:dneulbni flF[ef.�ll � Mill IlD,04,1] 41M If5(krrldnnlut R—l""i C'uwmwJly uiodol � r nl 0%.0�,\ll';i,t R 0 250 500 1,000 Feet August 3 1, 2009 Royston Eshelman Properties c/o Mr. Mark Eshelman PO Box 221 White Post, VA 22663 COUNTY of FREDERICK Department of Planning and Development 540/665-5651 SENT VIA CERTIFIED MAIL FAX: 540/665-6395 RE: The entire portion of property contained in Frederick County, Virginia, located at 3700 Stonewall Jackson Highway, White Post, Virginia; such entire property is described in a deed from Audrey F. Funkhouser, Executrix of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of Court of Clarke County, Virginia, Deed Book 78, at Page 33, containing 5.13 acres more or less. This property is zoned (Rural Areas) Zoning District. Dear Mr. Eshelman: I visited the above referenced property on June 26, 2009, with the Frederick County Building Official in response to a complaint regarding a structure being built without a building permit. My inspection of the property noted several structures built without permits, as well as a flea market, with other commercial uses, being operated on the property. In accordance with Section 165-101.07 of the Frederick County Zoning Ordinance, any structures built within Frederick County are required to have obtained a building permit. The presence of these structures on the above -referenced property constitutes a violation of the provisions of Section 165- 101.07 and is not allowed. In accordance with Section 165-401.02, the presence of commercial activities, i.e., Shen -Valley Flea Market, and other commercial uses within the flea market, constitutes a violation of the provisions of Section 165-401.02 of the Frederick County Zoning Ordinance, and is not an allowed use in the RA zoning district. This office will allow thirty (30) days from receipt of this letter to resolve these violations. Resolution of these violations may be accomplished by applying for building permits to remove the buildings from the property; theses structures are being used for commercial uses. The flea market and other commercial uses on the property must be discontinued. Failure to comply with the Code of Frederick County will result in a criminal complaint being filed against you. You may have the right to appeal the above notice of violation within 30 days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable, if it is not appealed within 30 days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165-1001.02 (1), of the Frederick County Zoning Ordinance. 107 Nortb Kent Street, Suite 202 • Winchester, Virginia 22601-5000 Mr. Mark Eshelman Re: 3700 Stonewall Jackson Highway August 31, 2009 Page 2 This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information you may want to submit, and a $300.00 filing fee. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. If you have any questions contact me at (540) 665-5651. Sincerely, a R. Cheran Zoning Administrator cc: John Trenary, Frederick County Building Official Jesse Russell, Clarke County, 102 N. Church St., Berryville, VA 22611 MRC/bad October 19, 2009 Royston Eshelman Properties P. O. Box 221 White Post, VA 22663 COUNTY of FREDERICK Inspections Department John S. Trenary, Buildiiig Official 540/665-5650 Fax 540/678-0682 RE: That portion as is contained in Frederick County, Virginia of the entire property located at 3700 Stonewall Jackson Highway, White Post, Virginia, as such entire property is described in a deed from Audrey F. Funkhouser, Executric of Charles C. Funkhouser, et al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of the Circuit Court of Clarke County, Virginia, in Deed Book 78, at Page 33, containing 5.13 acres, more or less. Dear Sirs: On October 9, 2009, permit applications were dropped off for the above mentioned property. This letter is to inform you that those permit applications can not be processed until functional design approval is granted under Section 103.11 of the Virginia Uniform Statewide Building Code by the County Zoning Department for location placement of these structures. (note the attached letter of violation dated 8-31-09) If you have any questions, please do not hesitate to contact this office. Sincerely P; IJohn S. Trenary, CBO'J Building Code Official cc Mark Cheran, Frederick County Zoning Administrator Rod Williams, County Attorney Robert J. Light, Attorney Attachment 107 North Kent Street . Winchester, Virginia 22601 John S. Trenuy, Building Official 5401665-56i50 Fax 5401678_0682 CERTIFIED August 31, 2009 Royston Eshelman .Properties P. 0. Box 221 White Post, VA 22663 RE: That portion as is contained in Frederick. County, Virginia of the entire property located at 3700 Stonewall Jackson Highway, White Post, Virginia, as such entire property is described in a deed from Audrey F. Funkhouser, Executric of Charles C. Funkhouser, ct al., to William Stuart Royston, bearing the date of February 24, 1967, and recorded in the Office of the Clerk of the Circuit Court of Clarke County, Virginia, in Deed Book 78, at Page 33, containing 5.13 acres, more or less. Dear Sirs: On June 26, 2009, an inspection 'vas made at the above referenced location. At that time, it was discovered that several buildings had been built without permits being issued and inspections performed. This is a violation of the following section of the 2006 Virginia Uniform Statewide Building Code, Virginia Uniform Statewide Building; Code, Section 103.11 Functional design. The following criteria for functional design is in accordance with Section 36-98 of the Code of Virginia. The USBC shall not supersede the regulations of other state agencies which require and govern the functional design and operation of building related activities not covered by the USBC including but not limited to (i) public water supply systems, (ii) waste water treatment and disposal systems, (iii) solid waste facilities. Nor shall state agencies be prohibited from requiring, pursuant to otherstate law, that buildings and equipment be maintained in accordance with provisions of this code. In addition, as established by this code, the building official may refuse to issue a permit until the 107 North Kent Street o Winchester, Virginia 22601 Royston Eshelman Properties Letter Page Two applicant has supplied certificates of functional design approval from the appropriate state agency or agencies. For purposes of coordination, the locality may require reports to the building official by other departments or agencies indicating compliance with their regulations applicable to the functional design of a building or structure as a condition for issuance of a building permit or certificate of occupancy. Such reports shall be based upon review of the plans or inspection of the project as determined by the locality. All enforcement of these conditions shall not be the responsibility of the building official, but rather the agency imposing the condition. Virginia Uniform Statewide Building Code, Section 108.1 When applications are required. Application for a permit shall be made to the building official and a permit shall be obtained prior to the commencement of any of the following activities, except that applications for emergency construction, alterations or equipment replacement shall be submitted by the end of the firef working day that follows the day such work commences. In addition, the buildinb official may authorize work to commence pending the receipt of an application or the issuance of a permit. 1. Construction or demolition of a building or structure. Installations or alterations involving (i) the removal or addition of any wall, partition or portion thereof, (ii) any structural component, (iii) the repair or replacement of any required component of a fire or smoke rated assembly, (iv) the alteration of any required means of egress system, (v) water supply and distribution system, sanitary drainage system or vent system, (vi) electric wiring, (vii) fire protection system, mechanical systems or fuel supply systems or (viii) any equipment regulated by the USBC. 2. For change of occupancy, application for a permit shall be made when a new certificate of occupancy is required under Section 103.3. 3. Movemcnt of a lot line that increases the hazard to or decreases the level of safety of an existing building or structure in comparison to the building code under which such building or structure was constructed. 4. Removal or disturbing of any asbestos containing materials during the construction or demolition of a building or structure, including additions. Virginia Uniform ,Statewide Building Code, Section 113.3 Minimum inspections. The following minimum inspections shall be conducted by the building official when applicable to the construction or permit: 1. Inspection of footing excavations and reinforcement material for concrete footings prior to the placement of concrete. 2. Inspection of foundation systems during phases of construction necessary to assure compliance with this code. 3. Inspection of preparatory work prior to the placement of concrete. 4. Inspection of structural members and fasteners prior to concealment. Royston Eshelman Properties Letter Page Three 5. Inspection of electrical, mechanical and plumbing materials, equipment and systems prior to concealment. 6. Inspection of energy conservation material prior to concealment. 7. Final inspection. This office hereby gives you thirty (30) days from the receipt of this letter to remove the buildings or obtain the necessary approvals from Planning & Zoning and apply for the necessary permits. COTE: Demolition permit shall be required to remove ally structure that has utilities connected. If you have any questions, please do not hesitate to contact this office. Please be mvare that the above is subject to appeal under Section 119 of the Virginia Uniform Statewide Building Code. John S. Trenary, CBO/ Building Code Of , ial cc V6.ark Cheran, Frederick County Zoning Administrator Jesse Russell, Clarke County Zoning Administrator Gary Pope, Clarke County Building Official Robert J. Light, Attorney Rod Williams, County Attorney SEP 2 8 2009 APPLICATION FOR APPEAL, IN THE COUNTY OF FREDERIGK, VIRGINIA Appeal Application #% 0 Submittal Date /D gml Fee,Paid es initials: -OFFICE USS ONI LY - Subfnittal Deadline ! For the tneeting of MUST BE TYPED OR TILLED OUT IN INK - PLEASE PRINT 1. The applicant is to list the owners X -tdult occupants or parties in interest of the property . (Check one) 2. APPLICANT: NAME, Royston Eshelman Properties, LC ADDRESS p o ox 22t White Post; VA 22663 OCCUPANT: (if different) NAME: ADDRESS: TELEPHONE: 540-869-1561 TELEPHONE: 3. The property is located at (give, exact directions and include State Rotate numbers): That portion of property contained in Frederick County, VA located at 3700 Stonewall Jackson Hwy (State Route 277), White Post, near inter- section with Front Royal Pike (US 522S 4. Magisterial District: Cpequon 5. PropertyldentificationNo.: 87-3-B1; 87-3-B(portion) 6. The existing zoning of the property is: RA 7. The existing use of the property is: sale of groceries/produce, second hand items, antiques 8. Adjoining Property: USE ZONING North sale of produce/groceries, second hand items, antiques RA East see above RA South convenience store, homesite, fruit stand RA, B-3 West sale of produce, etc. RA 9. Describe the decision being appealed. (Attach a copy of the written decision.) The determination by the Zoning Administrator that activities which could be considered part of flea market activities are prohibited in the RA zoning district. See attached August 31, 2009 letter. 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) See attached letter from Lawson and Silek, P.L.C., counsel for Royston Eshelman Properties, LC 11. Additional comments, if any: 12. The following names and addresses are all of the individuals, firms, or coipoiations owning property adjacent to the property for which the appeal is being sought, including properties at the sides, rear, and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notified by mail of this application: (Please list complete 14 -digit proper identification number.) NAME The Southland Corp. c/o 7 -Eleven Inc. Tax Dept #32269 Address P.O. Box 711, Dallas, TK 75221 Property ID # 87-A-108 Montie W. Gibson, Jr. Address 101Cahille Drive, Winchester, VA 22602 Property ID # 87-3-B Gary W. and Sharon R. McDonald Address 514 Clark Road, Stephens City, VA 22655 Property ID # 87-A-90 Keith F. and Sandra S. Rogers Address 2204 Fairfax Pike, White Post, VA 22663 Property ID # 8 7 -A-8 9 Horizon Holdings, LLC Address P.O. Box 574, Round Hill, VA 20142 Property ID # 87--A-88 Wendi G. and Steve D. Simmons Address 2154 Fairfax Pike, White Post, VA 22663 Property ID # 87-A-91 Ethel S. Robertson Joseph A. Kidwell Address 2142 Fairfax Pike, White Post, VA 22663 Property ID # 87-A-93 Address Property ID # Address Property ID # Address Property ID # Address Property ID # AGREEMENT APPEAL # 0,- — D I I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions required by the BZA. I authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF APPLIC� SIGNATURE OF OWNER (if other than applicant) -OFFICE USE ONLY- BZA PUBLIC HEARING OF % I % LOY ACTION: - DAT - APPEAL OVERRULED �j Rei-. 1,97 )ATE` DATE APPEAL SUSTAINED SIGNED: BZA CHAIRMAN DATE: Special Limited Power of Attorney County of Frederick, Virginia Frederick Planning Web Site: www.co.freclerick.va.us Department of Planning & Development, County of Frederick, Virginia, 107 North Keut Stt•cet, Siiite 2(12 Whicliester, Virginia 22601 Facsimile 540-665-6395 Phone 544-665-5651 Know All Men By Those Present: That I (We) (Name) Royston Eshelman Properties, L.C. (Phone) 540-869-1561 (Address) P.O. Box 221, White Post, VA 22663 the owner(s) of all those tracts or parcels of land ("Property") conveyed to me (ms), by deed recorded in the Clerk's Office of the Circuit Cotti't of the Comity of Frederick, Virginia, by IHsfHHffM6. Book 78 on Page 33 , and is described as(as recorded in Clarke County Book 606 on Page 506 (as recorded in Frederick County Court records) Parcel: Lot: Block: Section: Subdivision: Court _re -cards) do hereby make, constitute and appoint: (Name) Lawson and Silek, P.L.C. (Phone) 540-635-9415 (Address) 43 Chester 'Street, Front Royal, VA 22630 To act as my true and lawfid attorney-in-fact for and in my (our) name, place, and stead with frill power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: Rezoning (including proffers) _ Conditional Use Permit Master Development flan (Preliminary and Final) Subdivision Site Plan X Variance or Appeal Comprehensive Policy Platt Ainendinent My attorney-in-fact shall have the authority to offer proffered conditions and to make amendments to previotisly approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. In witness thereof, I (-kve) have hereto set my (otic) hand and seal this -c S day of 4C V - State of Virginia,.trity/County of Vy}�-Q �� , To -wit: i, i'�dl a Notary Public in and for the jmrisdiction afaresai ,certify that the persoii(s} wlt signed to the foregoing instrtunent ei nally a peared before me and has acknowledged the same before me in the jurisdiction aforesaid this cla of�; 200 . Not Pu lic �.,E „ ,.., ..� .,., . _.. _. Revised 3/17/08 Notary pNo.:1 �+ � � Commisslan'Na.:1735 My Commission Expires LAwsON AND SILEK, P.L.C. 43 CHESTER STREET POST OFFICE Box 602 FRONT ROYAL, VA 22630 TELEPHONE: (540) 635-9415 FACSIMILE: (540)635-9421 E-MAIL: JSII.EK@Q LASYsONANOSILEK.COM Septernber 28, 2009 Devin C. Scott, Chairman Frederick County Board of Zoning Appeals c/o Mark Cheran, Zoning & Subdivision Administrator Frederick County Department of Planning & Zoning 107 North Kent Street Winchester, Virginia 22601 SEP 2 8 2009 Re: Royston Eshelman Properties, L.C. — Appeal of Zoning Interpretation DELIVERED BY HAND DELIVERY Dear Mr. Scott: Please be advised that my office represents Royston Eshelman Properties, L.C., the owner of certain property in Frederick County, Virginia, upon which a portion of the operation known as "Shen -Valley Flea Market" is conducted. My client also leases certain property in Frederick & Clarke Counties for the same purpose. For the reasons set forth below, my client is appealing the interpretation of Frederick County Zoning Administrator Mark Cheran as set forth in his August 31 letter. Please find enclosed with this letter the following: (1) Application for Appeal to the Board of Zoning Appeals, (2) Copy of Mr. Cheran's August 31, 2009 Letter; and (3) Application Fee Relevant Facts In his August 31, 2009 letter, Mr. Cheran states as follows: " In accordance with 165- 401.02, the presence of commercial activities, i.e., Shen-V&lley Flea Market, and other: commercial uses within the flea market constitutes a violation of the provisions of Section 165- 401.02 of the Frederick County Zoning Ordinance, and is not an allowed use in the RA zoni� district." With respect, for the reasons set forth below, we believe that Mr. Cheran's W NCHESTER ADdRESs: 160 ExETFR DRI%,E, Su1TE 103, 1'.0. Box 2740, WiNCIIESTER, VA 22604, TELEPHONE: (540) 665.0050, FACSIMILE (540) 722 4051, E-NIAIL: T1.ANSoN@LSPLC.00N Kevin C. Scott, Chairman September 28, 2009 Page Two (2) interpretation of the Zoning Ordinance is incorrect because lie fails to take into account that most if not all of the operations within a Flea market are allowed uses in the RA zoning district by special permit. Consequently, Mr. Cheran's interpretation improperly precludes my client's pursuing a special permit for those permitted operations. As an additional consequence of this erroneous interpretation, my client is likewise unable to take steps to obtain building permits for certain structures located on its property. To begin, it is important to realize that a "flea market" is an umbrella concept that encompasses several small vendors. For example, there are fanners, particularly in the fruit growing industry, who sell then` products at my client's site. There are also other vendors selling a variety of products to the general public for household consumption and use. Finally, there are vendors selling antiques. In addition, you should be aware that the entirety of the Shen -Valley Flea Market does not lie exclusively in Frederick County. Rather, much of the operation lies in Clarke County in a zoning district in which permits flea market operations are permitted. Relevant Statutory Authority To begin, my client concedes that the term "flea market" is not defined by the Frederick County Zoning Ordinance, and that the term is not mentioned in the list of uses specified in Section 165-401.02. However, Section 165-401.03 sets forth a series of uses that are permitted in the RA zoning district if a conditional use pennit is obtained. For purposes of this appeal, the following conditionally permitted uses are relevant to the analysis: (i) "off premises wayside stands;" (ii) "country general stores;" and (iii) "antique shops." Frederick County Code s. 165- 401.03 (F), (G), (I). The term "country general stores" is defined by the Zoning Ordinance as "a retail business allowed where specified in rural zoning districts which sells groceries along with a variety of other retail goods" Frederick County Code s.165-101.02 (emphasis added). A "retail use" is likewise defined as "establishments engaged in sellinggoods or merchandise to the general public for personal or household consumption and rendering services incidental to the sale of such goods." Id. (emphasis added). A "wayside stand" is any structure or land used for the sale of agricultural or horticultural produce, livestock or merchandise produced by the owner of his family on their farin." Id. According to Zoning Ordinance, any definition not specifically listed will be determined by reference to the most recent edition of Merri an -i- Webster's Dictionary. See Frederick County Codes.] 65-101.02. According to Merriam -Webster's Collegiate Dictionary, 1I`E' Edition, a "flea market" is an "open air market for second hand articles and antiques." Kevin C. Scott, Chairman September 28, 2009 Page Three (3) Analysis h7 applying the above County ordinance provisions to the facts and circumstances of my client's operation, our client believes that, contrary to the Zoning Administrator's interpretation, the operations that comprise the "flea market" operations of my client are actually uses allowed (pursuant to a conditional use permit) under three different concepts incorporated into the Frederick County Zoning Ordinance. Essentially, many of the vendors on my client's site are simply providing goods and merchandise (including grocery items) to the ,general public for personal or household consumption. Such operations are conditionally permitted in the RA zoning district as a "country general store." It is important to observe that nothing in the definition of a "country general store" forbids the operation from beim in an open air environment." What is more, at least some of the vendors selling agricultural products at my client's site are selling such products grown from their own farms. Again, such an operation is pennitted by conditional use permit in an RA zone as demonstrated above. Finally, the very definition of a flea market includes the selling of antiques. "Antique shops," like wayside stands and country general stores, are pennitted with a conditional use permit in an RA zone. Thus, while my client recognizes that it needs to obtain the appropriate conditional use permits for these uses, my client's operations are certainly allowed (albeit conditionally) in the RA district. Unfortunately, as noted in Mr. Cheran's August 31 letter, his interpretation fails to take into account the use permitted by conditional use permit in an RA district as set forth in Section 165-401..03. Instead, by focusing exclusively on Section 165-401.02 (which simply sets forth the "by right" uses available in an RA zoning district, he makes an interpretation that is overbroad and inconsistent with the plain language of the Zoning Ordinance. In summary, my client believes that the Zoning Administrator's interpretation that vendor operations falling under a "flea market" concept as prohibited in the RA district under any circumstances is plainly wrong. As demonstrated above, most if not all of the vendors operating in a flea market are allowed to conduct their operations in the RA district so long as a conditional use permit has been obtained. An interpretation to the contrary ignores the plain text of the Zoning Ordinance applicable to the RA district. Therefore, my client respectfully requests that this Board of Zoning Appeals overturn the interpretation of the Zoning Administrator so as to allow my client to obtain a conditional use permit for its operations. Kevin C. Scott, Chainnan September 28, 2009 Page Four (4) On behalf of my client, I Nvish to thank you for your time and thouglitfiil attention to this application. If you have any additional questions, please do not hesitate to contact ane. Enclosures Cc (w/ enclosures): Royston ours, :k, J r. L. C. LAWSON AND SILEK, P.L.C. 413 CHESTER STREET POST OFFICE Box 662 FRONT ROYAL, VA 22630 TELEPHONE: (540) 635-4415 FACSIMILE: (540) 635-9421 E-AfAIL: JSILEKCLA%VSONANDS1LEK.0O3%1 October 19, 2009 Mad< Chelan Zoning & Subdivision Administrator �F'riil .-Irl' Co ity Del art -.e t of i.n.-,i.ILR Zoning 107 North Kent Street Winchester, Virginia 22601 Re: Royston Eshelman Properties — Suggestion for Boundary Line Adjustrncnt Dear Mark: I am writing this letter to Follow up on our telephone conversation last week. During our conversation, I suggested that one solution to the present dilenuna would be for Clarke and Frederick Counties to enter into a boundary line adjustment agreement pursuant to Virginia statute aiid relocate into Clarke County all the property comprising my client's operations. 'Yon indicated that this proposal may have merit and asked me to send you a written proposal for review and consideration. A boundary line adjustment in this circumstance would have several advantages for all parties involved. To begin, there would not be a great deal of ,property involved in such boundary line adjustment. One reason for the plat and survey currently under%vay is to pinpoint the exact location of the Frederick/Clarke County line, which runs across the property comprising my client's operations in an tultrsual manner. Second, my client's operations have xiszed ori the site for well oucr lwo ") ducade5. A buL)rldary fine adjusintent �� OLAI NIII)p allow a long-established use to continue in a jurisdiction where such operations are already permitted. Third, a boundary line adjustment mechanism allows the two jurisdictions to address any concerns about my client's operations in a straightforward manner. Finally, a boundary line adjustment would moot the pending BZA appeal while also eliminating the potential for any subsequent litigation. As you and 1 discussed, in the event that Frederick County were interested in pursuing this Option, the BZA matter could be postponed pending a satisfactory conclusion to the boundary line adjustmenl process. Given the above, I would urge Frederick County to take a serious look at a bouizdary line adjustment with Clarke County as a pragmatic solution to an unfortunate situation. Naturally, my client would be happy to cooperate in any way it calf. Kindly let me know whaher Frederick Counly is amenable to pursuing this approach. 'Thank you in advance for your thoughtful Wi,,cHESTF.R ADDRESS: 160 EXETER DRIVE, SUITE 103, P.O. Box 2740, WiNi CHESTER, VA 22604, TELEPHONE: (540) 665-0050, FAcsmm.E (540) 7221051, E-MAIL: TLASVSON@LSPLC.COM Mark. Cheran October 19, 2009 Page -1-NN,0 (2) attention to this proposal, and please do not hesi.late to contact me to discuss any additional questions or Concerns. Respe -tfull � Obert J. Light Cc: Royston Eshelman Properties, L.C.