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HomeMy WebLinkAboutBZA 11-16-10 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 16, 2010. PRESENT Kevin Scott, Chairman, Shawnee District; Robert Perry, Vice Chairman, Stonewall District; Bruce Carpenter, Gainesboro District; Jay Givens, Back Creek District; and Robert W. Wells, Member -At- Large. ABSENT: R. K. Shirley, IIt, Opequon District; and Eric Lowman, Red Bud District. 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 3:30 p.m. and he determined there is a quorum. On a motion made by Mr. Perry and seconded by Mr. Carpenter, the minutes for the October 19, 2010, meeting were unanimously approved as presented. Chairman Scott inquired if there are any applications pending for December. Mr. Cheran responded there are no applications at this time; the cut -off date is Friday, November 19, 2010. 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 Number 31B -1 -21 in the Gainesboro Magisterial District. ACTION — VARIANCE DENIED Mr. Cheran presented the staff report. The Frederick County zoning ordinance was adopted in 1967 and the historical map shows this property was zoned A -2: (Agricultural General). At the time of adoption of the ordinance, the setbacks were 35 feet for the front and 15 feet for the side yards. Frederick County amended its zoning ordinance in 1989, replacing the A- 1 and A -2 districts and combining them into the RA (Rural Areas) zoning district. The Board of Supervisors amended the zoning ordinance again in 2007, making the current setbacks for the property 60 feet for the front, 50 feet for the rear and both sides. Mr. Cheran continued that the applicant applied for a building permit in August 2010 Frederick County Board of Zoning Appeals Page 1549 November 16, 2010 with a setback of 57 feet in the front. Staff suggested that a survey was required due to the front setback, and it was also noted on the permit that the construction of the garage could not exceed any further than the wall of the house on the front setback. The first setback report showed the front setback of the garage at 28.5 feet and would be in violation of the Code. Mr. Cheran pointed out to members on the screen the location of the proposed garage. Mr. Cheran stated that a garage is defined by the zoning ordinance as an accessory use and is subordinate to the principal use, or dwelling, on the property. The zoning ordinance requires the front setback for an accessory use in the RA district be the same as the principal use, 60 feet, and allows the rear and side setbacks to be 15 feet. The applicant believes the steep topography conditions prohibit the building of this garage to meet the current setback requirements in the RA zoning district. Mr. Cheran acknowledged the topography is quite steep; however, the property does not meet the threshold of an undue hardship. The undue hardship, according to the State Code, would be if this would be a primary dwelling. In conclusion, Mr. Cheran stated that this variance request does not meet the requirements of the Frederick County zoning ordinance or the requirements of The Code of Virginia 1950 as an undue hardship. Staff requests denial of this variance application. Mr. Cheran noted that Mr. Darren Foltz, who performed the survey, and Mr. Ben Butter, who is representing the applicant, are both here to answer any questions. Mr. Foltz stated that along the back of the property, where it's marked on the survey as existing asphalt drive -way, the steepness of the slopes is 40 %. As the property gets closer to the lake, it continues down at that 40% slope all the way to the water's edge. Chairman Scott asked Mr. Foltz if there is a reason why the Bergmans are putting the garage in this proposed location as opposed to closer to or attached to the main dwelling. Mr. Foltz stated that the drive -way is an aggregate drive -way and to attach the garage to the house wouldn't leave much room for a turn - around. And the back would also be pushing out further into that 40% slope. Mr. Foltz also noted that the original setback requirement that was approved for the subdivision was a 25 foot front setback, and that's basically what they have asked for, simply to have what was approved with the covenants and restrictions as recorded in the Clerk's Office. Mr. Foltz further stated that he believes the biggest issue with pushing the garage back is an aesthetics issue. If the garage is pushed back, it's getting closer to the lake, and that would create a wall on that 40% slope that would be almost 30 feet tall among all the trees. Chairman Scott asked Mr. Foltz, in his opinion, what would be the additional amount of linear feet to the edge of Lake Serene Drive from where the property line is. Mr. Foltz responded that on the side where they want to build, the lake is to the north and to the west is all open space that will never be built upon, it's owned by the Home Owners Association. To put the garage on that side protects the community's view from the garage. Chairman Scott asked again, how many more feet would it be from the property line, if you ran a tape from the center of Lake Serene Drive to that boundary line. Mr. Foltz thought probably 15 to 20 feet to the edge of the pavement. Chairman Scott said when you get to the middle of the road, it's probably another 10 to 15 feet. Chairman Scott stated since there is additional space there, there could be Frederick County Board of Zoning Appeals Page 1550 November 16, 2010 a consideration for that. Chairman Scott wants to make sure that the whole Board understands the reality of how much additional property is there, even though it belongs to the Home Owners Association as a right -of -way. Mr. Benjamin Butler stated that the one thing he believes differentiates this from other variances that were granted is that in 2009 the Code of Virginia was changed. R was changed from where it used to be approaching confiscation to a clearly, demonstrable hardship. That's Section 15.2209. Mr. Butler stated that he would rest on the Board's good judgment that this is going to be a win -win situation, both for the landowner and for the County getting the tax from it. Chairman Scott asked if anyone present would like to speak in favor of this variance request. Ms. Linda Kulstad, Mr. Donald Vaschon, Ms. Phyllis Breidinger, Mr. Ray Abriola, and Ms. Lin Abriola all spoke in favor of the variance request. No one spoke against the request. Chairman Scott read a letter received from the Lake Serene HOA Board of Directors dated September 20, 2010, voicing their support and approval for this structure. Discussion Mr. Wells stated that he certainly understands the sympathies of the people who just spoke, but he doesn't feel that a garage is a hardship. On the other hand, the old covenant and the distance from the road to the center of the building both have merit. However, Mr. Wells feels he is legally bound by The Code of Virginia 1950, and according to that the variance request does not meet the requirements. Mr. Wells is looking for Board input to see if anyone feels there is any situation where we can maneuver a little bit and make some changes. Mr. Givens stated that he noticed that the covenant in the agenda package was an amended covenant written in 1993, and it looks to him like the covenant was completely restated. Therefore, the section on setbacks was written in contradiction to what the zoning ordinance was at the time. Mr. Givens is having trouble saying what the restrictive covenant said because of the date of the amended covenant. Mr. Givens agrees with Mr. Wells that he is having a hard time granting this request as a hardship. The thing that stands out to him is that the slope going up from the edge of the pavement and the visual effects does have some input and is certainly worthy of consideration. But when you get down to the basics of it, Mr. Givens is having some trouble between what the Code tells us is the Board's responsibility. The BZA is not a legislative body so we cannot change what the Board of Supervisors has said and we cannot change what our State legislators have said. We can only act on whether the actions are in compliance and to make an exception is not the Board's responsibility. Mr. Abriola wanted to make a comment and returned to the podium. He stated that the covenant was changed in 1993; he was on the Board at the time and he was directly involved with the change. The issue of the 25 and 15 foot setbacks is a carry-over from the older covenant Frederick County Board of Zoning Appeals Page 1551 November 16, 2010 that was given to the County when the lake was developed. Mr. Perry agrees with Mr. Wells' and Mr. Givens' comments, and his heart won't let him say that this is a hardship. Mr. Carpenter stated that he can't argue the fact that the garage would be an asset to that property. He also can't dispute Mr. Foltz in the fact that it can't go back any further; the topography is totally restrictive. Mr. Carpenter feels that it would benefit the community and the homeowner, but it does not meet the spirit of what the Board is addressed to look at. Even housing equipment and vehicles doesn't create a hardship. Chairman Scott clarified for the Board that they have made decisions in the past during his tenure that have gone contrary to the Code of Virginia. The decision made today will not set a precedent for anything else. Mr. Perry stated those variances have been for residences, not for garages. Mr. Wells said if it was a residence, he would be looking at it entirely differently. He's trying to figure out a way to justify helping the applicant out, but his hands are tied. And they are not a legislative body. Mr. Butler returned to the podium and stated that as a matter of law, the Code doesn't say that it has to be a principal residence. It just says any improvements. Mr. Butler read... "When a property owner can show that his property was acquired in good faith and whereby reason of the exceptional narrowness, shallowness, size or shape of a specific piece of property at the time of the effective date of the ordinance or whereby reason of exceptional topographic conditions or other extraordinary situation or condition of the piece of property, or of the condition application of the terms of the ordinance would effectively prohibit or unreasonably restrict the utilization of the property or where the Board is satisfied upon the evidence heard by it, that the granting of the variance will alleviate a clearly demonstrable hardship as distinguished from a special privilege, convenience sought by the applicant provided that all variances shall be in harmony with the intended spirit and purpose of the ordinance ". Mr. Butler further stated it's not saying it has to be a principal residence, it's that the property can't be utilized for anything but growing trees, and that is a demonstrable hardship. Mr. Givens asked Mr. Butler to define for him what the hardship is. The applicant has a place to live and they have sanitary facilities — what is the hardship of not having a garage. Mr. Butler stated he doesn't think, perse', it is about the use of the garage. It's saying that a piece of land, Lot 20, can't be used for anything. Mr. Givens said the lot we're talking about now does have a beneficial use and it's in use and in compliance with even the current regulations of the County. The property has, and been developed as, a reasonable use. So what is the hardship by not allowing the garage? Mr. Butler said we're talking about Lot 20. Mr. Givens asked if we're talking about a separate lot than what the house is on. Mr. Butler stated yes, it's at the end. Mr. Cheran stated it is one property. It was actually three lots that have been combined into one. When you combine lots, the ordinance that's in effect at the time they're combined affixes the setbacks. Frederick County Board of Zoning Appeals Page 1552 November 16, 2010 Mr. Cheran stated that the State Code has changed, but the undue hardship has not changed. However, the threshold question to the BZA in considering an application for variance is the effect of the zoning ordinance upon the property as it stands, as it interferes with all reasonable beneficial uses of property taken as a whole. Mr. Perry made a motion to deny this variance. Mr. Wells seconded the motion and it passed by majority vote. Chairman Scott told the Bergmans and Mr. Butler that he thought they were aware of what the opportunities are to take this matter further. Appeal Application 407 -10 for Historic Jordan Springs, submitted 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 410 -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. ACTION — APPEAL SUSTAINED Mr. Cheran presented the staff report. This property is currently zoned B2 (Business General) with a HA (Historic Overlay). In the past this property has been utilized as a resort, a hotel, a seminary and a rehabilitation center. Most recently, it has been used as an office space for County Court Reporters, Inc. Mr. Cheran showed members an aerial photo on the screen. In 2001, this property was subject to a rezoning, 410 -01, that was approved by the Board of Supervisors for Jordan Springs, County Court Reporters, Inc., which rezoned the property from RA (Rural Areas) to B2 with HA. The voluntary proffered conditions associated with Rezoning 10 -01 restricted the site usage to the following: Health Services Legal Services Engineering, accounting, research, management, and related services General business offices Public buildings Residential use, which are accessory to allowed business uses. In the summer of 2009, the property had some other events occurring that were against the proffers approved by the Board of Supervisors in 2001. They had weddings, dinner theater, corporate and special events, holiday dinners and charity pub nights, which were not permitted uses under the proffers of this property. The Board of Supervisors is a legislative body and any changes to proffered conditions will require a rezoning. This property did not have a rezoning to update the proffers. Staff worked with the applicant to try to get them to where the proffers would be amended to allow the certain events they were holding. On their website, Historic Jordan Springs does advertise certain events. The proffers worked on with staff and the applicant were going to add to the list of the original proffers approved in 2001 to include museums as an accessory or secondary use, eating and drinking places, exposition operations and theater productions. The rezoning process entails the staff meeting with the appli of the Frederick County Board of Zoning Appeals Page 1553 November 16, 2010 property and then it goes in front of the Planning Commission. This applicant did go before the Planning Commission and it was recommended for approval. Mr. Cheran noted that the Board of Supervisors did hear the application and they wanted to work with staff to add some more teeth to the proffers having to do with certain events occurring at Jordan Springs. Furthermore, the applicant withdrew the rezoning application prior to the Board of Supervisors' action on the application. After the applicant's letter of withdrawal, dated August 11, 2010, staff sent the notice of violation to the property owners. The violation letter was prompted by a person applying for a business license to operate a hair salon, which is not a permitted use of the approved proffers. The violation letter also cited the owners for certain events occurring at Jordan Springs which are not a permitted use of the approved proffers. In summary, the conclusion of the Zoning Administrator with regards to the interpretation and enforcement of proffered conditions associated with Rezoning 410 -01 is correct in terms of the specific permitted uses for the property as clearly listed with the rezoning. Any changes to proffers or uses are beyond the scope of the BZA. The property owners voluntarily name the uses that they feel their property will sustain. Any changes require a decision by the Planning Commission and the Board of Supervisors. That did not happen because the property owners withdrew their application. Staff is requesting the Board of Zoning Appeals to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance regarding the violations of the proffered uses on this property. Mr. Givens asked Mr. Cheran about the sentences in the staff report which state that the property had not been utilized for more than one year prior to the approval of the rezoning and the property would not have any legally non - conforming uses. How was it determined there were no uses the one year prior to the rezoning? Mr. Cheran responded that the applicants referenced what has historically occurred on the property in their application but provided no documentation to confirm the uses continued prior to their purchase. When there is a rezoning, you are proffered those uses. Whatever happened prior to the rezoning goes away and that's what occurred with the rezoning. If the applicant had asked to keep those events on- going, staff would have definitely added it to the proffers. Mr. Givens asked what does the "one year prior" mean? Mr. Cheran stated the zoning ordinance says if a non - conforming use is not utilized for one calendar year, that use is no longer applicable. If the owner wants to again utilize the non- conforming use on the property, he must apply for a Conditional Use Permit to allow the re- establishment of the non - conforming use through the legislative process. Mr. Cheran stated that no one is denying that there had been other uses on the property, but the rezoning in 2001 took those uses away. Mr. Stephen Pettler, who is representing the applicants, stated that he believes it's important to note the property's history. In 2009, the County sent a violation notice saying that the events that were being held at Jordan Springs were in violation of the proffers. The position of his clients always has been that is not the case. In 2001, when this property was rezoned and they voluntarily put the Historic Overlay on this property, and it is the only property in Frederick County with the voluntary Historic Overlay placed on it, it was specifically discussed about the history of this location, about all the special events that occurred at this location for centuries. At that time, Ms. Wallace wanted to restrict what uses would be on the property so that it could preserve the historic character of the property, but at the same time enable it to generate enough revenue to maintain the facility. It's a significant property, there's nothing like it in Frederick Frederick County Board of Zoning Appeals Page 1554 November 16, 2010 County. The only thing you can maybe compare it to is Belle Grove. For many, many years special events have been held on this property — weddings, parties, corporate events - before his clients ever bought this property. During the rezoning process in 2001, Ms. Wallace wanted to be able to run her court reporting and technology firms out of the property, have it available for conferences related to that and to continue with the uses that were historically always there. Mr. Pettler continued that at that time, staff and the property owners came up with the list mentioned in the staff report. One of those uses is public buildings. That was the term that everybody agreed upon that captured the uses for public events. Mr. Pettler said that in the application, they said that the term "public buildings" was undefined. But that turned out not to be the case upon a broader search in the Frederick County Ordinance. Mr. Pettler handed out to all members and Mr. Cheran a copy of Section 142 -2 of the Frederick County Ordinance. Mr. Pettler asked members to turn to page 4 where he found the only definition of public building in the Frederick County Ordinance. It states, "Any building which is owned or operated by government or private interests and which is used as a place to conduct business in which the general public is involved ". In the staff report, there was some mention that a public building only refers to a building that is owned by the government. That's not the case in the Frederick County Ordinance. There is another reference Mr. Pettler cited in the Virginia Code, Section 15.2 -2232, which he handed out to members and Mr. Cheran. What this ordinance refers to is what the Planning Commission has to review once the Comprehensive Plan has been adopted by a county, and it states that no public building, whether publically or privately owned...... Again, the Virginia Code itself makes a distinction between publically and privately owned "public buildings ", and the Frederick County Ordinance itself, when it refers to public buildings specifically, also makes a distinction between publically and privately owned public buildings. Mr. Pettler also pointed out that in Section 165- 101.02, the definition section of the zoning ordinance, there is a specific definition for government services offices which is a separate term. Mr. Pettler wants to distance this distinction that there is any legal requirement that a public building is something that is owned by the government — that is not the case in the Frederick County Zoning Ordinance. The public building term is what Ms. Wallace will tell you that was what was agreed upon in the negotiations that went on for the proffers that were done in 2001. That was what was always believed to cover these sorts of events that not only occurred since they bought the property, but occurred before they bought the property. Mr. Pettler continued that in 2009, as the property became more of a place where people wanted to have events because it was well maintained and was well -run by the Aitkens, the County, for whatever reason, got wind that there was something going on there, so they issued a zoning ordinance violation. In 2009, what his clients wanted to do, because they are civic - minded individuals who recognize the value of this property in Frederick County, agreed to cooperate with the County to see if they could clarify this public building thing. Apparently, the issue is that the same people who agreed to this in 2001 are no longer working in the County staff, are no longer on the Board of Supervisors or the Planning Commission, and suddenly something that his client thought was settled, has become opened again. They went through the process to get a zoning amendment to amend the proffers to clarify the different uses that are there existing currently. In that process, Mr. Pettler stated that the demands that were insisted upon by the various participants in that process became farcical. It was unjustifiable for the things they wanted when his clients already thought they had the permitted use based on the Frederick County Board of Zoning Appeals Page 1555 November 16, 2010 current zoning of the property and the current restrictions. That is why, and for no other reason, the proffer amendment was withdrawn in August of this year. It was not because of the salon issue. Mr. Pettler's clients have a permitted use which they are conforming with currently, the County wanted more, and my clients said no more after it got to the point where they were to file a permit under the Festivals Section for any special event that they would have on the premises and pay a fee every single time they would do that. That, more than anything else, was the determining factor in how the proffer amendment proceeded. Mr. Pettler addressed the "one year" issue cited by Mr. Cheran in his staff report, stating that he is doing a very good job of making a record so that if this has to go on appeal somewhere, that it would be part of the record. What that alludes to is the legal non - conforming uses section of the zoning ordinance. If a property had a use prior to the adoption of the zoning ordinance and maintains that use, then that non - conforming use is legal and by -right in perpetuity as long as you conform otherwise with the zoning ordinance. What has been suggested in the staff report is that there was some lapse of time where special events were not being held on this property — that is not true. Even during the period of time when Shalom et Benedictus was there, many events happened at that property. There were fundraisers, galas, balls, company picnics, and when Shalom shut down and the Church still owned the property, they maintained a caretaker there. That caretaker let all these special events continue to occur even though there was nobody occupying the building. Mr. Pettler says there has never been a change of use that stopped the use of this building as a public building for special events. Even if you gPt to the point where you say this public building in the zoning ordinance amendment from 2001 restriction doesn't apply for some reason, Mr. Pettler says there is still a non - conforming use that's been in effect for the events that have been held there for decades. Mr. Pettler turned to the salon issue by stating that Jordan Springs has weddings, and women getting married and associating with weddings like to get their hair done and their nails done. His clients had an arrangement with a woman by telling people that she is available to come to the property and do their hair, just like they do at Belle Grove or any place else they have weddings, and they provided a room for the woman to do that. This woman, who works from her home, apparently goes around to people's houses, not just Frederick County, but all over Northern Virginia. She applied for a business license in Frederick County thinking that was the right thing to do because she was going to be making money when she goes to Jordan Springs. She made the application and the County made a determination based on the application that there was a salon being opened at Jordan Springs. Mr. Pettler assured the members there is no salon; there are not people going in and out of that property for salon services. The only people that use the service are people associated with the events and if that is not acceptable, that won't be done anymore. Mr. Wells asked Mr. Pettler to confirm that the proffers and the zoning from RA to B2 came from the 2001 rezoning and Mr. Pettler responded yes. Mr. Wells stated his understanding is they wanted to be in a business classification because they had businesses there already and Mr. Pettler stated that was the right thing to do. Mr. Wells went on to say that's where the broad range of services came from, but how did the issue of non - conformance come up? Mr. Pettler stated there is nothing in the present ordinance that covers this special events -type thing; there is no other categorization for this operation to be in. Mr. Pettler believes what happened is an anonymous complaint was made to staff. His clients invited staff in and showed Mr. Lawrence, Frederick County Board of Zoning Appeals Page 1556 November 16, 2010 Mr. Riley and Mr. Cheran around and everybody was trying to figure out a way to keep it going so it could generate the revenues necessary to maintain it. His clients tried to oblige them by saying if you're not sure what this public buildings thing means, and if it's not going to be too much of a hassle to go through the rezoning process and amend the proffers to make it clearer, we'll go through that process. But that process has some costs that his clients weren't really aware of because there are certain expectations that the different participants in that process may have and impose upon the process. That's how we get to today where they feel their only recourse now is to get a quasi judicial determination that, indeed, they are in conformity with this public buildings use and have always been in conformity with their legal non - conforming use because they've been doing these things at that property well before the zoning ordinance was adopted in 1967. Mr. Wells asked if the applicants, going through the meetings and the process, just said the heck with it. Mr. Pettler stated it got to the point where the costs involved in continuing through that process and after that process because certain things get triggered even if it was approved; there are other obligations like VDOT that may get involved concerning entrances and parking. Mr. Wells talked about other businesses being permitted there and paying taxes to the County. Mr. Pettler agreed and stated that Historic Jordan Springs, LLC, which was set up just to run the events, as well is paying taxes to the County. Mr. Pettler asked Ms. Wallace to speak about her understanding of the 2001 rezoning. Ms. Wallace stated that she and her husband, Greig Aitkens, own Historic Jordan Springs. When they first looked at the property and they had to deal with the Catholic Church and the purchase of the property, they knew they had to get some zoning issues squared away. Knowing that it was a historic property, Ms. Wallace wanted to investigate what all the options would be and they had to address some proffers with the County in order for them to move their offices from downtown to Jordan Springs for more space to put in a training center and technology conference center for events. Ms. Wallace also wanted to be able to improve the property from the historic side and be able to have people come back to the property for the historic aspect of it. When they started down the path of proffers, Ms. Wallace didn't want it to just be able to have anything out there; all kinds of businesses that would work on that property but that wasn't necessarily what she saw it as. It's a very retreat like and serene private peaceful property, so as they started going down the list of things that she saw and from the historic aspect, they decided that health and legal and the general business things she could live with. But she also wanted to be able to continue the property in the uses that it already had been as an event facility or public assemblage or just meeting or gathering places for special events. Public buildings was the recommended language that they used in the proffer for that very thing. Ms. Wallace corrected Mr. Pettler in that Historic Jordan Springs is the first and only Historic Overlay in the Commonwealth of Virginia, even the Governor's Mansion doesn't have a Historic Overlay on it. The Governor is aware of that and had asked to have an executive retreat there recently. They are excited about the property and love Historic Jordan Springs and they have had nothing but great responses from people who have been there. Mr. Pettler asked Ms. Wallace if recently she had an occasion to speak with the Frederick County Fire Inspector at the property and she responded she did. Mr. Pettler asked Ms. Wallace to tell Board members her discussion with Mr. Flippo about if this was a public building in his estimation. Ms. Wallace stated actually both gentlemen were presen Mr. Showers and Mr. Frederick County Board of Zoning Appeals Page 1557 November 16, 2010 Flippo, and Ms. Wallace asked them if they considered them a public building. They said of course you're a public building because the public comes here, and that's why we're here because we want to make sure that the public is safe. She asked if they considered it a government building and they were emphatic that it was a public building. Mr. Pettler asked Mr. Cole Nutter, Executive Director, to come up and speak. Mr. Nutter handed members a small bound book concerning the history of Jordan Springs. Mr. Nutter presented an abbreviated history of Jordan Springs. Mr. Pettler concluded by reiterating their position that the public buildings specifically for the uses that are being done there currently and it is in conformity with the zoning and that our fall -back position is that these types of uses for special events are a legally non - conforming use. With regard to the salon, if it's determined that the way it's being used currently is unlawful, it will be discontinued. Mr. Cheran clarified that although Mr. Pettler pointed out a definition for public buildings in the State Code, that definition is related to the State Code and has to do with the part where the State Code requires counties, cities and towns to every year provide a `2232 Legal Status Plan". This plan has nothing to do with zoning, it has to with planning. Counties by Code have to present a 2232 Plan every year as part of the budgeting process. The 2232 Plan identifies public areas and public buildings, such as a fire house or a park. Although it's a definition, it doesn't connect to what we're talking about today. Mr. Cheran explained that the Zoning Administrator cannot interpret Chapter 142, Solid Waste; that is not a zoning purview. The Code the BZA uses is Chapter 165, Zoning Ordinance. Chairman Scott asked if there is a specific definition for public buildings in Chapter 165. Mr. Cheran said not in the Zoning Code. Chairman Scott stated that the Chapter 142 definition is very clear about what it considers a public building. Mr. Cheran agreed, but that is not zoning's purview. Mr. Cheran further stated that he agrees with Mr. Pettler that there was a meeting at Jordan Springs and they walked the site. There was no official notice of violation like the one Mr. Cheran sent, which is an appealable process. There was a letter from the Planning Director talking about events that were happening there. Mr. Cheran continued that the applicant has to understand the proffers before you go any further. When the applicants were going to amend the proffers, it went to the Planning Commission and was going to the Board of Supervisors before it was withdrawn. The County was working with them by adding those uses that Mr. Pettler is talking about. If the proffers were amended to include those uses, it wouldn't be an issue. The festival permit was added as a part of the proffers; a festival permit is under another section of the Code of Frederick County. That part of the section has nothing to do with zoning. Mr. Cheran used Rock Enon as an example - they have concerts. Grove Harley Davidson will have a poker run. They apply to the County Administrator's Office for a festival permit. The County evaluates it — Sheriffs Department, Health Department, etc. — and sometimes Planning will look at it if there's a site plan for the purposes of health and safety. Mr. Pettler is pointing out that the Board of Supervisors, in going through negotiations, wanted other conditions included. Frederick County Board of Zoning Appeals Page 1558 November 16, 2010 Chairman Scott asked Mr. Cheran what the other conditions were. Mr. Cheran responded that the conditions were to include museums as an accessory or secondary use, eating and drinking places, exposition operations, and theatrical producers and miscellaneous theatrical services, limited. That's where the festival permit came in. If it was over the top, that's not for us to decide here; that's a legislative action through the Board of Supervisors. What we're looking at is whether they were violating their proffers. Mr. Cheran submits they were. Whether the use happened prior to this rezoning, that went away after the rezoning. If you want to re -do your proffer, you come in and re -do it, they could have eliminated the public building and added what Mr. Cheran just read. As the staff report points out, a restaurant in Frederick County is public; it has to be open to the public unless it's a private club. Regardless of what the former property owners thought a public building was, the interpretation of the Zoning Administrator is a government -type building that's owned or operated. Mr. Cheran stated that application of a business license led to the beauty salon issue. Normally what happens when there is a zoning violation in Frederick County, other agencies get caught up in it; the Building Official and the Fire Marshall. If they wanted to change their proffers, the Building Official and the Fire Marshall have no problems unless there's some kind of internal modification. Mr. Cheran made his position clear by stating that proffers are what they are. This was what was rezoned in 2001 and what the proffers say and he submits again that they are in violation of their proffers under the Rezoning #10 -01. The evidence is clear by their web site and the events that occur. Mr. Wells asked Mr. Cheran where he could find the definition of health services and legal services because those are very broad areas. Mr. Cheran responded that Frederick County uses the SIC Code, Standard Industrial Classifications. Mr. Givens stated that the public building thing has him confused. He did some research over the weekend and was totally in agreement with the Zoning Administrator until he saw that the County has a definition somewhere else. Mr. Givens read from Section 165- 901.01 of the Zoning Ordinance, "Any use, structure, or sign which subsequently becomes nonconforming as a result of amendments to this chapter may continue as it was at the time of the adoption of the amendment, as long as it remains otherwise lawful ". Mr. Givens stated that in his opinion, the one year issue doesn't come in until you go to Section 165- 901.02 where it starts talking about after the adoption, not prior to, and then it's discontinued for a period of one year that you have to go through other procedures. What Mr. Givens is hearing from the applicant is that these things never ceased, but Mr. Cheran is indicating in his report that they did cease prior to it and if they had ceased and weren't going on, Mr. Givens agrees that when the rezoning was approved, those things are non- conforming and not allowed. But if they were in fact continuing, they should be non - conforming uses and Mr. Givens is interpreting lawful to mean, in this case, as long as they're under the laws of Virginia. Mr. Cheran stated that according to the applicant, they had these events going on; Mr. Cheran was not there and cannot say with certainly they were or weren't. It could have been that the monks were holding events there, but Mr. Cheran can only go by the proffers. Whether it was non - conforming or not, Mr. Cheran is not in a position to know anything other than when the rezoning was done, looking at the Minutes and the staff report, the only thing that came up was this history that happened there. Mr. Cheran stated that in 1999 when Shalom et Benedictus closed, there was a news article he has from doing research, that it had stopped being a facility. There may have been a caretaker there, having picnics. Mr. Cheran's only frame of time is what he has right now and Rezoning #10 -01. Mr. Cheran said as far as the history with the County working with them, they were going to add those amendments. tMr. Perry stated that he lives within a stone's throw of Jordan Springs and he can almost say without Frederick County Board of Zoning Appeals Page 1559 November 16, 2010 reservation that from the time the "drug people" left there until Ms. Wallace bought the place and started rehabilitating, there was virtually nothing going on there that he remembers seeing. Mr. Perry doesn't think there were public events or anything like that; he does not remember anything going on. Mr. Perry doesn't know the time span, but there was a period from the time the "drug people" left until Ms. Wallace bought the place that it sat virtually empty as far as observations made going up and down Jordan Springs Road would allow. Mr. Pettler said that Mr. Cheran was referring to SIC classifications and there is not a SIC classification for public buildings. Mr. Pettler asked Mr. Cheran if that is correct and Mr. Cheran said actually, there is. It's under public administration and it is SIC 93 — office buildings, jails and things of that nature. Mr. Pettler said the other uses that Mr. Cheran is referring to that were added in the proffer process, those were gotten by us sitting at a table and opening up the SIC book and trying to find SIC classifications that did fit with what was going on there. Apparently there was a time when the proffers and, he believes the permitted uses in the Code, didn't correspond with the SIC designations and the practice, he believes going forward in the County, make them do so. That way, this doesn't happen and we don't have to come here to say what does public building mean, you simply look at the SIC classification. If you look under every business use in the Code, public buildings is a permitted use and there's a blank where the SIC number is. There were no public comments, either for or against, this appeal. Mr. Wells asked when the applicants purchased the property. Mr. Pettler responded October 2001. Mr. Wells asked if they were involved in the proffers and Mr. Pettler said they were very much involved, it was a condition of their purchase contract. Mr. Wells asked if additional things were added to the proffers. Mr. Pettler stated no, that the proffers in 2001are Historic Overlay, and the listing in the staff report. Last year after the County said they had a complaint about the uses there, and this ambiguity about public buildings, that's when Mr. Pettler's clients agreed to sit down to clarify that. They thought they had it clarified, they went to the Planning Commission, walked in and out, they went to the Board of Supervisors and the playing field changed. That's when it was withdrawn. Mr. Wells asked if there were weddings there in 2001. Mr. Pettler said they bought it in October, and the first Christmas party was held in December. Mr. Wells said from 2001 until 2009 when the complaint came up, they were having events in that period of time. Mr. Pettler said correct and there have been more and more as the money has come in to fix it up more. In fact, it's been building even during the down -turn. Mr. Wells asked if what they're having there now are special events such as weddings, dinners and other events, which is an ambiguous wide -open target, too. Mr. Pettler said there is no definition for special events that we can refer to, any more than public buildings. Mr. Pettler said if you're looking for a precedent, look at Belle Grove. He believes it's a non - conforming use in the RA and it does the same sorts of things. Chairman Scott said they do apply for festival permits, though. Mr. Pettler stated that festival permits only apply when you have live music or amplified music outside. It doesn't apply to having a wedding or having something inside the building. Mr. Wells asked if his clients understand that and Mr. Pettler said completely — they're good citizens and they've complied with all the requirements they have had so far. Chairman Scott stated that our goal is try to work through this and at times we get things of this nature that, while certainly we can see the common sense, sometimes we have to allow it to be pushed on to another location to be resolved. Mr. Cheran clarified for the record that the Section of the Code to which he referred, is Chapter 142 Solid Waste. The definitions concerning zoning are located in Chapter 165. Mr. Cheran also stated that Belle Grove does not have proffers assigned to it. Mr. Cheran does not Frederick County Board of Zoning Appeals Page 1560 November 16, 2010 know what activities they're doing at Belle Grove, but they do not have voluntary proffers that limit what they can do. Chairman Scott said he thinks where the debate comes in is what those proffers mean exactly. Mr. Givens asked Mr. Cheran and Mr. Pettler to try one more time to explain why it was withdrawn from the Board of Supervisors. Mr. Pettler said the concerns that were raised by some of the Supervisors had to do with hours of operation — when people would be there and what kind of noise would be there because of neighbors. They close down at 11:00 and they have a decibel meter and they keep it down below the noise ordinance even though the noise ordinance only applies to commercial sections. But, there was a concern by the Board of Supervisors, so to address that concern what started to happen was there was an amendment which was passed to the festival permit to include special events. It said if you're going to have special events, then you have to apply for a permit just like you would for a festival permit and pay your application every time and have an emergency evacuation plan, and all this stuff you have to have for a festival permit. The entire staff pretty much comprises the three people here. To do that and to do a wedding and break down all that staff was getting to the point where the costs didn't make any sense to them. And their lawyer is telling them, if you got this rezoning back in 2001 and they said you could do this under public buildings, that is the right thing, let's stick with that. That is the long and short of where it was going. He and his clients didn't like it once it got to that point and that's when decisions were made. Mr. Givens asked if the festival permit changed and Mr. Cheran replied it was taken to our code and ordinance committee and it was acted upon. However, the Supervisors had a concern about what they wanted to do. Does cost play into it? Mr. Cheran stated maybe it does, maybe it doesn't. Discussion Mr. Wells wants to speak in favor as a Board member that he thinks that Jordan Springs ought to be under the building, under the ambiguous, building proffer that is on the screen with no definition. He feels that weddings, receptions and special events are not festivals. He also looks at Jordan Springs and Belle Grove and ValCluse Springs as places of historic interest, and he does not visualize the owners of those facilities as having wild festivals that are going to tear up their property nor bother their neighbors. Mr. Wells wants to move ahead and say that under the current situation, his feeling is they are allowed to have those types of events. Mr. Givens said he thinks the County is wrong to have a set of definitions in each chapter and somehow that needs to be corrected. Mr. Cheran had to act within his Code section and Mr. Givens thinks he responded correctly. Mr. Givens has had a problem with the use immediately prior to the rezoning and whether that impact does make it a non - conforming use that would be allowed. But he cannot find any evidence where it says it was in existence prior to that time. With the information he has before him, Mr. Givens would affirm the Zoning Administrator's determination. Mr. Carpenter stated we've had a non - applicable definition for public buildings, but in the Code we are supposed to refer to, we don't have a definition. His tendency would be to come up with a definition as he would see a public building. Mr. Carpenter would see a public building being used for what it has been used for there. He does not know what happened there 10 to 15 years, but he knows that throughout history the building has been used for very similar things. There may have been gaps in the time frame, but Mr. Carpenter doesn't have documentation of that. Based upon what he has heard today and until there is a different clarification by the County or the State in the zoning code, Mr. Carpenter would have to say that the applicant is allowed to do what they've been doing. Frederick County Board of Zoning Appeals Page 1561 November 16, 2010 Mr. Perry didn't have anything to add to the discussion. Chairman Scott also did not have anything to add. Mr. Wells made a motion to uphold the appeal. Mr. Carpenter seconded the motion and it passed by a majority vote. Chairman Scott stated for the record that if we could have these matters pushed to a legislative matter, or a legislative side, to get cleared up to help them out, that would be greatly appreciated by this Board. Mr. Perry stated the biggest thing that would help them out is if Frederick County would sit down and define all of the stuff that doesn't have a definition to it. Other Chairman Scott said in the event we don't have a meeting in December, he would like to thank Mr. Robert Perry for his service for the last 15 years. Mr. Perry will be leaving the Board at the end of his term, which is December 2010. Chairman Scott thanked Mr. Perry for his service as well as advice he gave Chairman Scott when he started. Mr. Perry said it has been a memorable experience. There being no further business, the meeting adjourned at 5:20 p.m. E Respectfully submitted, SAS MWffi Xeiz Bev Dellinger, Secretary J Frederick County Board of Zoning Appeals Page 1562 November 16, 2010