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HomeMy WebLinkAboutBZA 11-15-11 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 November 15, 2011. PRESENT: Jay Givens, Vice Chairman, Back Creek District; Gary Oates, Stonewall District; Eric Lowman, Red Bud District; Bruce Carpenter, Gainesboro District; and R. K. Shirley, III, Opequon District. ABSENT: Kevin Scott, Chairman, Shawnee District; and Robert W. Wells, Member -At- Large. STAFF PRESENT: Mark R. Cheran, Zoning Administrator; Dana M. Johnston, Zoning Inspector; and Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Vice Chairman Givens at 3:25 p.m. and he determined there is a quorum. Vice Chairman Givens inquired if there are any applications pending for December. Mr. Cheran responded there are no new applications at this time; the cut -off date is Friday, November 18, 2011. On a motion made by Mr. Carpenter and seconded by Mr. Oates, the minutes for the May 17, 2011 meeting and the June 21, 2011 meeting were unanimously approved as presented. PUBLIC HEARING Variance Request #04 -11 of Smithfield Properties, for a 76.7 foot variance of the 100 foot right side setback, a 49 foot variance of the 50 foot left side setback and a 4.6 foot variance of the 50 foot rear setback, to enable construction of a single family dwelling. The subject property is located at 417 Frog Hollow Road, and is identified with Property Identification Number 22 -A -20 in the Gainesboro Magisterial District. ACTION — VARIANCE DENIED Mr. Johnston presented the staff report. The applicant is requesting a 76.7 foot variance of the 100 foot right side setback, a 49 foot variance of the 50 foot left side setback and a 4.6 foot variance of the 50 foot rear setback. Mr. Johnston stated that the reasons for the request are that the dwelling cannot be constructed at the current setback regulations, the size and topography of the property makes it challenging to construct a dwelling, the drainfield and well locations prohibit the dwelling to be Frederick County Board of Zoning Appeals Page 1574 November 15, 2011 constructed in any other location to allow the construction of a 24 foot by 35 foot dwelling on the site. Mr. Johnston concluded that if this variance is approved, the new setbacks would be 23.3 feet on the right side, one foot on the left side and 45.4 feet to the rear. Staff believes that this property meets the threshold requirements of an undue hardship as to the use of the property and the application meets the requirements of the Code of Virginia, 1950 as amended, 15.2- 2309(2) and Section 165-2001C of the zoning ordinance. Staff recommends approval of this variance. Mr. Richard Butcher of Smithfield Properties stated that the permit was applied for in 2009 and approved in 2010, and the structure is already on the site. All the pier holes have been dug, the concrete has been poured, and places have been bolted together. Mr. Butcher said they can't move the structure any further down the hill because of the drainfield and the slope, and they can't move it behind the hill because of the well. There was the same size trailer there prior and they're replacing it with the same size — 24' by 35'. The well and drainfield were placed there in 1967. Vice Chairman Givens stated that he understands what Mr. Butcher is saying about permits being issued and the structure is in place, but he asked Mr. Butcher why they couldn't move it to the right of the property and increase that side setback by more than one foot. Vice Chairman Givens said it seems to him they ought to have a minimum of ten feet. Mr. Butcher responded that the prior trailer actually encroached on the adjoining property by two feet and they have already moved it over three feet. To move it further over, the way the land goes, you'd be parking your cars on the hill. They had been issued the permits with the setbacks, and they were told to go ahead. Mr. Butcher had both sections brought to the property, 22 holes were dug, all of them filled with concrete. and a company had to come to set up the trailer. Mr. Butcher said to move the trailer would be very costly. They would have to take the trailer from the lot, store it, re -drill all 22 holes and remove the concrete, dig 22 more holes and so on. They have already paid for this once since they were told it was okay. Mr. Carpenter stated that if Mr. Butcher made it through the entire permit process, he's confused as to why there's a variance request before the BZA today. Mr. Johnston told Mr. Carpenter that the Planning Department received a complaint. Prior to that and based on the information they had before them from the permit, the permit was signed. They found out later that the dwelling that was there before burned down in 2004. Frederick County's ordinance allows one year to re- establish the use. Because the dwelling was not replaced within one year is the reason we're before the BZA today. Vice Chairman Givens opened the public hearing portion of the meeting. Vice Chairman Givens asked if anyone present wished to speak in favor of the variance request; no one responded. He then asked if anyone present wished to speak against the variance request. Mr. Earl Nicholson, Jr., stated that he lives at 405 Frog Hollow which is the adjoining property. Mr. Nicholson handed out some documents to Board members. Mr. Nicholson explained that Mr. James Saville. who owned the property at one time, put a trailer on the property. It was about a 30 foot or 40 Frederick County Board of Zoning Appeals Page 1575 November 15, 2011 foot trailer with a lean -to attached, which set a good distance from Mr. Nicholson's house. Mr. Nicholson's father bought the property and placed a double wide trailer towards the top of the property and then removed the small trailer and lean -to. Mr. Nicholson, Sr., attempted to get a permit for the double wide but he was told he could not get a permit because of the property lines and the property was said to be a worthless piece of property. The double wide just sat on the ground and was never hooked up. After Mr. Nicholson's father died, the property was sold to the applicants. Mr. Nicholson continued that when the applicants applied for a permit, they claimed that their trailer had burned and they were replacing it. Neither Mr. Johnston nor Mr. Cheran were aware that the trailer had burned several years before. From the beginning, Mr. Nicholson told them that the trailer that burned was not on a foundation and was just sitting there. According to Mr. Nicholson, since he complained, the applicants have tried to get it all "buttoned up ". As there were no further comments, Vice Chairman Givens closed the public hearing portion of the meeting. Discussion Vice Chairman Givens stated that, from his perspective, this is a platted lot and without some variance, it does become an unusable lot. Vice Chairman Givens is having a lot of problems with granting a one foot setback. He realizes there would be expense involved, but he believes that a setback of at least ten feet from the side property line could be achieved. Vice Chairman Givens said he wasn't sure if any adjustment could be made to the advertised setback. He believes the Board either has to approve or deny the request as it was advertised. If the applicant would agree to change the setback, it would have to come back to the BZA and be re- advertised with the agreed to setback. Further. one of the reasons Vice Chairman Givens has a problem with the one foot setback is the potential for something to happen in the future that could affect the sale of Mr. Nicholson's property. Mr. Carpenter asked Mr. Butcher when his group acquired the property. Mr. Butcher responded they purchased the property on September 28, 2007. Mr. Butcher said that if they'd been told from day one to take the trailer over ten feet. that would be one thing, but they were given the permit and told they could continue on. Vice Chairman Givens asked Mr. Butcher when they bought the property in 2007, was the dwelling they said burned down already burned down. Mr. Butcher said that dwelling burned down in 2004 and they never once said they owned the property when the dwelling burned down. Vice Chairman Givens asked how did the assumption come into play that the dwelling burned down less than a year before the building permit request. Mr. Johnston told Vice Chairman Givens that at the time the permit was applied for, there was a plat that was included. The plat showed the location of the burned dwelling. Mr. Johnston stated that the permit was issued in error because the dwelling burned down in 2004. Mr. Shirley asked when the error was discovered, was that communicated to the owners. how far into the building process were the owners when they were told, and did the owners continue construction or did they stop immediately. Mr. Butcher stated they got a stop work notice and they Frederick County Board of Zoning Appeals Page 1576 November 15, 2011 stopped. That was a few months ago. Mr. Shirley asked if the work they had completed was done before the stop work notice and Mr. Butcher responded yes. Vice Chairman Givens asked Mr. Johnston if the stop work order was issued after you received a citizen complaint and Mr. Johnston stated that is correct. Vice Chairman Givens asked how long after the building permit was issued and work initiated was the complaint received. Mr. Johnston said it was about one and one half years. Vice Chairman Givens asked how long the work had been going on when the complaint was made and Mr. Butcher stated one and one half years. Mr. Nicholson approached so that he could speak again and the Board members granted Mr. Nicholson that opportunity. Mr. Nicholson said the trailer was set up on blocks until it carne time for the conditional use hearing, then they leveled it off and did the work that Mr. Butcher mentioned. Mr. Nicholson feels that if they said it's all been done at the meeting, that it would be a shame to have to take it down. Mr. Shirley asked Mr. Nicholson when he saw the construction, was he anticipating it being that close or what was your anticipation not to complain until just recently. Mr. Nicholson stated it wasn't recently; he immediately complained. Mr. Shirley again asked Mr. Nicholson when he called the Planning Department with his first complaint and Mr. Nicholson said he wasn't sure when the double wide was delivered: maybe eight months ago. For the benefit of the BZA members, Mr. Oates explained that this request came through the Planning Commission for a Conditional Use Permit a few months ago. It was denied by the Board of Supervisors. Mr. Cheran stated that by ordinance, a non - conforming use can be re- established if it's been longer than a year by Board approval. But that has no relevance with today's request. Mr. Carpenter made a motion that Variance Request #04 -11 of Smithfield Properties be denied. Mr. Oates seconded the motion and it passed by a majority vote for denial. Other There being no further business, the meeting adjourned at 4:00 p.m. Respectfully submitted, e....„..../- __ fay Givens, Vice Chairman lir,frBevDellinger, Secretary Frederick County Board of Zoning Appeals Page 1577 November 15, 2011