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HomeMy WebLinkAboutBZA 11-20-01 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 20, 2001. PRESENT James Larrick, Jr., Chairman, Gainesboro District; Theresa Catlett, Opequon District; Dudley Rinker, Back Creek District; Thomas Malcolm, Shawnee District and Robert Perry, Stonewall District STAFF PRESENT Patrick T. Davenport, Zoning Administrator; Mark R. Cheran, Planner l; Carol fluff, Secretary CALL TO ORDER The meeting was called to order by Chairman Larrick at 3:25 p.m. MINUTES OF SEPTEMBER 25, 2001 On a motion made by Mr. Rinker and seconded by Mr. Malcolm, the minutes for the September 25, 2001 meeting were unanimously approved. OLD BUSINESS PUBLIC HEARING Continuation of Application #17 -01, (tabled at the 11/20/01 meeting) Appeal of the Decision by the Zoning Administrator, submitted by Capon Valley Bank in regard to the denial of a time and temperature clock in a bank sign. The property is located at 6701 Northwestern Pike and is identified with Property Identification Numbers 28 -A -14B and 28 -A -14D in the Back Creek Magisterial District. APPROVED Mr. Davenport, Zoning Administrator, gave a brief synopsis of the appeal and the actions at the September meeting. The appeal had been tabled for 60 days to give the applicant an opportunity to have the sign repaired and to allow them time to prepare a video presentation. Mr. Clinton Ritter, attorney for the applicant, showed a video which depicted the bank Frederick Co. Board of Zoning Appeals Minutes of November 20, 2001 Minutes Book Page 1 126 sign display set at various speeds. It was noted that the first setting was clearly `flashing' at a speed of one -to- two - second intervals; however, the second setting, which was set at 15- second intervals, was considered by the applicant to be `alternating.' Mr. Ritter asked the Board to approve the appeal based on the evidence presented by the tape, based on the ambiguity of the language in the Frederick County Zoning Ordinance, and based on the fact that there was no opposition from any members of the community in the area affected. There were no other speakers for or against the appeal; therefore, Chairman Larrick closed the public hearing portion of the meeting. DISCUSSION Chairman Larrick reminded the Board once again that they were not considering a variance and that the only thing they could vote on was whether or not the Zoning Administrator made the correct interpretation of the Zoning Ordinance when denying the use of the time and temperature component of the Capon Valley Bank's sign. Further discussion ensued as to what constituted a flashing or alternating sign. Mr. Ritter told the Board they would be willing to apply for a conditional use permit if that would allow the sign to stay. The Board questioned whether alternating signs were allowed by the Zoning Ordinance. Mr. Davenport replied that different signs could be interpreted differently and needed to be handled on a case -by -case basis; however, in this particular instance he felt that this type of sign was not allowed. Additional discussion on various types of flashing signs such as VDOT road signs, traffic alerts, etc., followed. The Board questioned whether this appeal came about because of a complaint. Staff replied that a complaint was received in the Planning Department regarding the sign and that while investigating the complaint, it was also discovered that the sign had been installed without the proper permits from the Building Inspections office. Mr. Malcolm moved to overturn the decision of the Zoning Administrator, thereby granting the appeal, based on the authority of the Board of Zoning Appeals to practice discretion. The motion was seconded by Mr. Rinker and passed by unanimous vote. BE IT RESOLVED, that application #17 -01, submitted by Capon Valley Bank, Appeal of the Decision by the Zoning Administrator in regard to the denial of a time and temperature clock in a bank sign, was approved by unanimous vote. NEW BUSINESS Frederick Co. Board of Zoning Appeals Minutes of November 20, 2001 Minutes Book Page 1 127 Variance #19 -01, Autumn Woods, L.L.C., for a 1.5 -foot front yard setback variance for an attached garage. This property is located on Lynn Drive in the Autumn Glen Subdivision, Lot 1813, and is identified with Property Identification Numbers 75L- 3 -1 -18B in the Opequon Magisterial District. APPROVED Mr. Davenport presented the background information and stated that had the mid - construction survey been performed when the rough framing was completed (as is the intent of the ordinance), the violation may have been prevented. The Board asked how many applications of this type had been heard so far this year, and who was responsible for making sure the houses are built according to survey specifications. The question on when a mid - construction survey was expected to be performed was also posed. Staff stated that the intent of the mid - construction survey was to not wait until the Certificate of Occupancy was applied for but as a means of catching violations or errors in advance; however, the Zoning Ordinance does not specify an exact time period. Mr. Don Arnold, the builder in this case, explained how the error came about, saying that the concrete man used the original house plans instead of the revised ones. Mr. Arnold stated that this was the first violation he has had in 20 years. He added that the buyers, who were retiring here from New Jersey, were present. They had requested that Mr. Arnold apply for the variance, even though he was willing to tear it down, because they wanted the garage and were not happy with the prospect of its removal. The Board questioned how the plans for the duplex dwelling `got flipped' and when the mistake was discovered. Mr. Arnold said they didn't realize what had happened until it was time to go to closing. He added that the buyers had no other place to live and had received a temporary C.O. to live in the house until this issue was resolved. The owners of the house did not speak formally; however, did state from their seats that they liked their house and wanted to keep the garage. They requested that the Board approve their variance request. Mr. Perry stated that although it had no bearing on this particular case, he felt that something needed to be done to `get a handle on this cul -de -sac situation.' He commented that this same type of variance had come before the Board several times. For Mr. Arnold's benefit, Chairman Larrick explained that cul -de -sacs tended to create problems and that other builders had been before the Board as a result. Mr. Rinker added that if they started seeing the same builder more than once, that it would be noted. That having been said, Mr. Perry made a motion to approve the variance as requested. Mrs. Catlett seconded the motion which passed by unanimous vote. BE IT RESOLVED, that Variance 919 -01 of Autumn Woods, L.L.C., for a 1.5 -foot front yard Frederick Co. Board of Zoning Appeals Minutes of November 20, 200 ] Minutes Book Page 1 128 3 setback variance for an attached garage, was approved by unanimous vote. Variance #20 -01, Edgar L. Heishman, Jr., for a 14 -foot rear yard setback for an attached screened -in porch. This property is located at 219 Bentley Avenue in the Chapel Hill Subdivision and is identified with Property Identification Number 64D -7 -34, Lot 34, in the Shawnee Magisterial District. APPROVED Mr. Davenport gave the background information and explained that staff's position was that no since no undue hardship existed, and all lots within this subdivision must comply with the setbacks, denial would be justified. Mr. Edgar L. Heishman, Jr., applicant and property owner, stated that he and his wife would like to build a screened -in back porch but were advised that the setbacks did not permit it. He told the Board that he had letters from all of the adjoining property owners and from the Homeowners' Association which demonstrated approval of the Fleishman's request. Mr. Fleishman continued by saying that there was a pond on the left side of their house, and the house was the original model home which was purposely set deep on the lot to enhance the appearance of the home. There is no nearby dwelling to the rear except one property which also had a pond behind it, so there is no possibility of any further construction in the rear of the property. Ms. Barbara Baltimore, adjoining property owner across the street from the Heishmans, stated that the property owners in Chapel Hill were like a family, and that no one had any opposition to the Heishmans building a porch. DISCUSSION Chairman Larrick told the applicants that although their Homeowners' Association approved the building ofthe back porch, the Frederick County Zoning Ordinance was a different entity and the Board was obligated to uphold those ordinances. Mrs. Heishman asked the Board if any of them had gone out to look at the property they had not], as their neighbor's house sits 17 feet off the property line and they have a six -foot deck on the back. Staff noted, however, that corner lots have different setbacks. Mrs. Heishman also added that there is another pond behind their property and there's no way anyone could build back there. The Board asked if there was any way that any porch could be built; Mr. Heishman said that according to the code they could build one two feet wide going the full length of the house. Additionally, there is an existing back door which was installed for the purpose of the future building Frederick Co. Board of Zoning Appeals Minutes of November 20, 2001 Minutes Book Page I t29 4 of a deck or back porch. It is currently blocked off with safety bars. Chairman Larrick asked about the rule which stated that a porch could be built as long as it is one -third the length of the house. Staff confirmed that the porch could extend three feet into the setback; however, that would only give them a five -foot wide porch. The only other scenario, which would involve a boundary line adjustment, may not be possible on these lots as they have already been established at a minimum size. Mr. Malcolm moved to deny the application based on the lack of hardship and in the interest of upholding the integrity of the regulations. Mr. Perry offered the second and the motion passed with all ayes. BE IT RESOLVED that Variance #20 -01, Edgar L. Heishman, Jr., for a 14 -foot rear yard setback for an attached screened -in porch, was denied by unanimous vote. OTHER Chairman Larrick gave the Board an update on his attempts to have alternate members appointed to the BZA. He said that he had been advised by the Assistant County Administrator, Kris Tierney, to wait until after the election and the new Board of Supervisors is in place. Mr. Malcolm told the Board that since he is a resident of the newly- created Red Bud District, he felt that he should be representing that district rather than Shawnee, especially since the minutes reflect him as representing Shawnee District. Mr. Larrick reminded the Board that the BZA does not necessarily have one representative from each district, per se, because they have to have either five or seven members according to the statute. However, if that is the wish of the Board of Supervisors, the Board of Zoning Appeals Bylaws could probably be amended to that effect. The Board asked Mr. Malcolm to `hang in there' until they could get a decision from the Board of Supervisors. There being no further business at hand, the meeting adjourned by unanimous consent at 4:30 p.m. Respectfully submitted, an t' James Larrick, Jr., Chairman Frederick Co. Board of Zoning Appeals Minutes of November 20, 2001 Minutes Book Page- 1130