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HomeMy WebLinkAboutBZA 11-17-09 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 17, 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; and, Robert W. Wells, Member -At- Large. ABSENT: Eric Lowman, Red Bud District; 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. Givens and seconded by Mr. Shenk, the minutes for the October 20, 2009, meeting were unanimously approved as presented. Chairman Scott asked Mr. Cheran what is on the agenda for next month. Mr. Cheran responded that Friday, October 20` is the cut -off date and as of today, there are no applications pending. PUBLIC HEARING 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. ACTION — APPEAL TABLED UNTIL DECEMBER 15, 2009 Mr. Cheran presented the staff report. Mr. Cheran pointed out that the staff report references two properties, but it is only one property. A recent survey done by the applicant, made available to staff 1523 Frederick CCount Bgoardd of ing Appeals Minutes okovVikr 17, 2 8 after the agenda was mailed, cleared up exactly where the property is located, and Members have been provided with a copy of the survey. Mr. Cheran continued that the .applicant believes the Zoning Administrator's interpretation of Frederick County's zoning ordinance is incorrect and does not take into account that the activities that are occurring on this property would be allowed by a Conditional Use Permit (CUP). The use "flea market" is not, however, a listed use in the zoning ordinance which would be allowed under a CUP. 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 Merriam- Webster's Dictionary. The dictionary definition describes a flea market as an "open air market for second hand articles and antiques ", and the applicant believes the flea market operating on this property is an umbrella concept which mirrors Frederick County's definition of a country store, which is an allowed use in the RA zoning district with an approved CUP. Mr. Cheran reiterated that the Frederick County Zoning Ordinance does not provide for flea markets anywhere as a permitted or conditional use. Staff noted there are other activities taking place at this site which include, but are not limited to, food preparation and resale of merchandise such as CD's, clothing and grocery items, but not antique merchandise. These uses are much broader in terms of what a county store will have. The applicant also puts no limitation on types of goods that could be sold on this property at any given time. Mr. Cheran has provided Members with a copy from the applicant of some of the rules and regulations and types of vendor tables, and this is much broader than Frederick County's definition of a country store. Mr. Cheran clarified that the uses allowed by a Conditional Use Permit is not an avenue to resolve this violation. A CUP is used for land use actions and approved by the Board of Supervisors. The zoning ordinance states what uses are allowed in the various zoning districts and you cannot issue a Conditional Use Permit for more than one use on a piece of property and you cannot have multiple uses attached to a Conditional Use Permit. Also, a flea market is not a listed use in the zoning ordinance and, therefore, cannot be acted upon. Staff is requesting to affirm the decision of the Zoning Administrator in the administration and interpretation 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. Mr. Givens asked for clarification on exactly which structures are implicated on the new survey. Mr. Cheran pointed out the subject structures. Mr. Givens stated the line that bisects the property appears to be a property line, not the Frederick County line, and seems to include five structures, not three. Mr. Cheran explained it is a property line. i Mr. Shenk asked how long the flea market has been in business. Mr. Cheran replied that the applicant provided a brochure that states they were established in 1985. However, it is not known if the property located in Frederick County was included in the whole flea market concept or if it was entirely in Clarke County. Frederick County adopted zoning in 1967, making this property RA, and that's what staff has to abide by. And in 1967, when this property was considered Al or A2 zoning, a flea market was not an allowed use. Since food is being prepared on the site, Mr. Perry asked if the proper health permits are in place. Mr. Cheran stated that on the Frederick County side, he does not believe they are, and he can't answer for the Clarke County side. 1524 ederick Founty $oar o 68 ing AppealsmutesoNovember7, Mr. Scott asked Mr. Cheran if there have been any discussions about a boundary line adjustment as a means to clear this up. Mr. Cheran stated that he and Mr. Robert Light, the applicant's attorney, talked about this; however, that would be a political decision that would have to be determined by both jurisdictions, Frederick and Clarke County, and that hasn't occurred yet. Mr. Robert Light of Lawson and Silek, introduced himself as the applicant's representative. Mr. Light stated, as background information, that the County line has not been surveyed since the 1830s, and the surveyor found this to be quite challenging. Mr. Light stated that his client's appeal basically boils down to the following sentence from Mr. Cheran's August 31, 2009 letter: "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 ". Mr. Light said had the sentence stopped after the recitation of Section 165- 401.02, that sentence would have been defensible; however, by stating that commercial uses within the flea market are not allowed uses at all in the RA district, his client believes that the opinion of the Zoning Administrator is overbroad and contradicts the language of the zoning ordinance. Mr. Light referred to his September 28, 2009 letter where they concede that a flea market is not mentioned in the zoning ordinance, let alone in the RA district regulations, not defined; however, while a flea market in the sense of an open -air market may or may not be mentioned, the zoning ordinance does allow certain uses in the RA district which may be part of the flea market, but also be stand -alone uses. A flea market can include antique shops, restaurants, wayside stands, country general stores, etc. Such uses are permitted as stand -alone uses within a Conditional Use Permit. Thus it doesn't follow that because an umbrella classification such as a flea market may not be permitted that the individual stand -alone uses are likewise prohibited. Mr. Light used as an example a mall or shopping center which encompasses uses such as restaurants which are permitted as stand -alone uses in the RA district. So the Zoning Administrator's interpretation about flea markets would be similar to the same because shopping centers are not permitted in the RA district, then restaurants cannot be permitted either. Clearly such an interpretation is inconsistent with the language of the zoning ordinance. One of the things mentioned in the staff report is that a Conditional Use Permit can only be permitted for one use on a particular property. In looking at 165- 401.03, Mr. Light doesn't see any language that would prohibit a by -right use listed in 165 - 401.02 and a conditionally permitted use to exist on the same property, but even if Mr. Cheran is correct, that doesn't change the problem with the August 31, 2009 interpretation letter. He states that any commercial use of property in the RA district is not permitted. Whether Mr. Light's client desired a Conditional Use Permit for a single use such as an auction house or restaurant, or multiple uses permitted by Conditional Use Permits such as restaurant or wayside stand, the August 31" letter opinion would prevent his client from pursuing a Conditional Use application and that is where the concern lies. Mr. Light stated that his client's preference would be for the Board to table a decision on this matter until at least the December meeting to allow the applicant and the County to work out and determine whether a boundary line adjustment is an acceptable option. If the Board decides to render a decision today, he requests that you overrule the August 31" interpretation letter so as to permit his client the ability to file a Conditional Use Permit application for uses permitted under 165 - 401.03. 0 Mr. Givens asked Mr. Light if he could identify the County line and the property line on the survey. After the property line is identified, Mr. Givens asked if the property is closer to Route 522. 1525 Qderick F_Qunty $oar oSZ ing AppealsmutesoNNoverner7. 8 The surveyor, Mr. Joe Brogan, answered that the 1.84 acres in question is taxed in Frederick County and his office showed the line between Frederick and Clarke County as best they could based off the tax maps. As far as whether there are three or five structures in Frederick County, it was determined that the applicant or his representative would have to research Clarke County's records for building permits. Mr. Shirley asked Mr. Light if his client has been paying taxes on the 1.84 parcel to Frederick County. Mr. Light replied yes, he has been paying taxes to Frederick County. Chairman Scott asked for anyone to come forward who would like to speak for or against this appeal request. Six citizens and the applicant spoke in favor of the application. Chairman Scott closed the public hearing portion of the meeting. Discussion Chairman Scott stated that Mr. Light had requested the Board table this appeal application. He asked Mr. Cheran to assist the Board's understanding of what they are encumbered to do today. Mr. Cheran stated that per the State Code and the County Code, under Frederick County Code, Section 165 - 1001.02 Powers and Duties, an appeal shall be decided within 60 days. Mr. Light stated this may be a waivable issue, because the only one who has standing to object would be the applicant, and the applicant is the one requesting it be tabled. There was discussion concerning where the buildings in question are located and the property lines. Mr. Cheran assured the Board that the surveyor, Mr. Brogan, had accomplished and sealed this survey in good faith and trust. Mr. Cheran further stated that if they had moved the uses and structures on the 1.84 acre property in Frederick County to Clarke County within 30 days, we would not be here today. And in conducting research on the site, it was noted that the Health Department has no knowledge of food preparation and Frederick County has not issued any business licenses for operations located on the 1.84 acre. Mr. Light stated that he doesn't want this to be read so broadly as to say that his client can't file for a Conditional Use Permit. Mr. Cheran cited an example as a way of explanation. If someone came into the Planning Department and asked if he could operate an antique shop, would the accessory uses to that be allowed that are currently happening at the flea market now. The Conditional Use Permit is for one use, not multiple uses. Mr. Cheran brought the discussion back to the issue of tabling. He said there is some leeway. The State Code asks if anyone is harmed by delaying the decision and no one will be harmed. In that case, the Board of Zoning Appeals may rule to table this application until the next meeting date. Mr. Wells commented that this Board has to make decisions based on boundary lines, even though we may like to see it a different way. If he was forced to make a decision today, Mr. Wells would have to say it's not a permitted use and he would find in favor of the Zoning Administrator. 1526 ederick Founty $oarf o mutes o Novern er 7Z ing Appeals68' Hopefully, this will be worked out within the next 30 days. Mr. Shenk made a motion to table Appeal Application 902 -09 of Royston Eshelman Properties, LC, be tabled until the next BZA meeting on December 15, 2009. Mr. Shirley seconded the motion and it was unanimous. Other As there were no other items to be discussed, the meeting adjourned at 4:50 p.m. by unanimous vote. Respectfully submitted, Ke in Scott. Chairman Bev Dellinger, Secret EJJ p g 1527 M notes Ruevent bear 7oS680ing Appeals