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HomeMy WebLinkAboutBZA 01-17-12 Meeting MinutesMEETING 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 January 17, 2012. PRESENT: Kevin Scott, Chairman, Shawnee District; Jay Givens, Vice Chairman, Back Creek District; Gary Oates, Stonewall District; R. K. Shirley, 111, Opequon District; and Eric Lowman, Red Bud District. ABSENT: Bruce Carpenter, Gainesboro District; and Robert W. Wells, Member -At- Large. STAFF PRESENT: Mark R. Cheran, Zoning Administrator; 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. Oates and seconded by Mr. Lowman, the minutes for the December 20, 2011 meeting were unanimously approved as presented. Chairman Scott asked if there will be a February meeting. Mr. Cheran responded there is one new application that he is aware of at this time, but it hasn't officially been submitted. The cut -off date is Friday, January 20, 2012. ELECTION OF OFFICERFS AND ADOPTION OF BYLAWS Chairman Scott opened the floor for nominations for Chairman. Mr. Shirley made a motion to nominate Mr. Givens and Mr. Lowman seconded the motion. The floor was closed for nominations on motion by Mr. Oates, seconded by Mr. Givens. The vote was unanimous for Mr. Givens as Chairman. Mr. Givens abstained from voting. Chairman Scott opened the floor for nominations for Vice Chairman. Mr. Givens made a motion to nominate Mr. Scott and Mr. Shirley seconded the motion. The floor was closed for nominations on motion by Mr. Oates, seconded by Mr. Lowman. The vote was unanimous for Mr. Scott as Vice Chairman. Mr. Scott abstained from voting. Chairman Scott opened the floor for nominations for Secretary. He pointed out that this position, historically, is held by a County employee. Mr. Shirley made a motion to nominate Ms. Dellinger and Mr. Givens seconded the motion. The floor was closed for nominations on motion by Mr. Lowman, seconded by Mr. Oates. The vote was unanimous for Ms. Dellinger as Frederick County Board of Zoning Appeals Page 1581 January 17, 2012 Secretary. Mr. Cheran stated that traditionally the Board of Zoning Appeals has met at 3:25 p.m. on the third Tuesday of the month. In checking with County Administration to find out why the BZA designated 3:25 p.m. as the meeting time, Mr. Cheran found out that many years ago this time was set in order to secure the Board Room for that particular day, and the 3:25 p.m. time slot has remained the same. Mr. Cheran pointed out that the time can be changed to 3:00, 3:30 or even 4:00 p.m., at the discretion of the Board. Mr. Lowman made a motion to keep the Board of Zoning Appeals meeting time at 3:25 p.m., on the third Tuesday of the month, with Thursday at 3:25 p.m. following the third Tuesday, as the make -up meeting date. Mr. Shirley seconded the motion and the vote was unanimous. Mr. Givens has some concerns regarding the Bylaws he would like to bring to the Board's attention. Under Article IV — Officers, 4 -1, Mr. Givens feels it should read, "...the Secretary may be a County employee ", rather than shall be a County employee. Mr. Givens explained that the State Code reads that the Secretary can be a member of the Board, or a County employee. In reading the State Code, Mr. Givens found that under Section 15.2 -2308, it states "... except for matters governed by 15.2 -2312, no action of the Board shall be valid unless authorized by a majority vote of those present and voting ". The exception in 15.2 -2312 states the concurring vote of a majority of the membership of the Board shall be necessary to reverse any order, requirement, decision, or determination of an administrative officer or to decide in favor of the applicant on any matter which is required to pass under the ordinance or to effect any variance from the ordinance ". What that says to Mr. Givens is that if we had a variance request or appeal today, with four members present, which is a quorum, we would have to have a 410 vote because you have to have a majority of the membership present. Our Bylaws, under Article VI — Voting, 6 -2, states "...by a majority of those present and voting." Mr. Cheran stated that in 2004 this issue came up. Mr. Robert Mitchell, who was attorney for the Board of Zoning Appeals at that time, advised that it takes a concurring majority of the membership of the BZA to reverse any administrative decision or grant a variance. Mr. Mitchell further stated that if the BZA membership is six or seven members, it would take four votes to overturn an administrative determination or grant a variance, regardless of how many members are present or voting. Mr. Givens emphasized that if he is reading the State Code correctly, there is a procedural vote, like we had with the election of officers today. That can be approved on a 3/1 vote under 15.2 -2308. Some matters can be approved on a 3/1 vote and some matters cannot be approved on a 3 1 vote. Mr. Cheran said the Board can make the agreed upon changes and he will talk with the County Attorney this week to get his interpretation. Mr. Mitchell's interpretation provides the same conclusion as Mr. Givens — no matter how many BZA members there are, there must be a Frederick County Board of Zoning Appeals Page 1582 January 17, 2012 majority vote in order to approve a variance request or appeal. Mr. Givens noticed in the Winchester Star that the meeting today was advertised as a public hearing. He feels this meeting is not a public hearing, but a public meeting. Our Bylaws states that public hearings shall be required on all items required by the Code of Virginia. Mr. Givens asked if it's necessary to advertise a meeting such as today, even though we'll probably never have this situation again where we meet with no requests being heard. Mr. Cheran responded that we normally advertise all BZA meetings, even if it's considered a meeting rather than a hearing. Mr. Cheran stated that he'll look into the matter. Chairman Scott stated that he believes members should recite the Pledge of Allegiance before each meeting. This adds a nice formality and a reminder of what we're here to do. Mr. Cheran said we can add that under Article VII — Operating Rules. Chairman Scott also feels it would be nice to thank those present, in the community and Board members, for being here and giving of their time to participate in the process. Mr. Oates made a motion for approval of the Bylaws as reviewed with subsequent changes to Article IV — Officers 4 -1, Article VI — Voting 6 -2, upon review and consideration by Counsel, and Article VII — Operating Rules, add Pledge of Allegiance. Mr. Givens seconded and the motion was passed by unanimous vote. Other Chairman Scott asked Mr. Cheran about the Board of Supervisor's lawsuit against the Board of Zoning Appeals concerning the variance request of Smithfield Properties. Mr. Cheran stated that, as far as he knows, counsel probably won't be involved and it will go before a Judge for his ruling. It will probably take quite a while to be heard because Frederick County has to wait for one of the Judges who moves from county to county. The bad thing about waiting is that another Stop Work Order was issued on the property. Mr. Cheran feels that all a Judge is going to look at is if the BZA followed correct procedures, is it a lot of record, did the BZA apply the variance correctly as a hardship, and the answer to all three is yes. Mr. Givens asked if this case would happen to be upheld and the Board of Supervisors wins, does that mean an unusable lot has been created in the County. Mr. Cheran responded yes and if that happens, where does the property owner go from there. Does it go to the State Supreme Court? Mr. Cheran feels the deed rescarch done on this request shows for a fact that this is a recorded lot, regardless of what anyone says. The reason the Board of Zoning Appeals exists is because if there is a wrong that has been done, the Board corrects that wrong. Chairman Scott asked Mr. Cheran to make members aware of the Court date for this case. Frederick County Board of Zoning Appeals Page 1583 January 17, 2012 Chairman Scott informed Mr. Cheran that the fence is down again at the property on Senseny Road. Mr. Cheran stated he's aware of that and the problem is getting it on the docket. There being no further business, the meeting adjourned at 3:55 p.m. Respectfully submitted, evin Scott, Chairman G Bev Dellinger, Secretary Frederick County Board of Zoning Appeals Page 1584 January 17, 2012