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HomeMy WebLinkAbout08-11 BOS Staff ReportCONDITIONAL USE PERMIT #08-11 SMITHFIELD PROPERTIES Staff Report for the Board of Supervisors Prepared: September 14, 2011 Staff Contact: Dana Johnston, Zoning Inspector This report is prepared by the Frederick County Planning Staff to provide information to the Planning Commission and the Board of Supervisors to assist them in making a decision on this request. It may also be useful to others interested in this zoning matter. Reviewed Action Planning Commission: 09/07/11 Recommended approval Board of Supervisors: 09/28/11 Pending EXECUTIVE SUMMARY: This is a request to re-establish a discontinued nonconforming use in order to enable construction of a single family dwelling with reduced setbacks on a property. Section 165-901.03 of the Zoning Ordinance states: Any use that was legally nonconforming under the provisions of this Part 901 and that was discontinued due to abandonment may be re-established by obtaining a conditional use permit. Such conditional use permit shall be granted only for the use that is equal or lesser non- conformity than the original use in relation to intensity, type of use, dimensional requirements or other requirements. Such requests to re-establish an abandoned use shall be considered following the procedures for conditional use permits in this chapter. The Planning Commission forwarded a recommendation of approval for this application to the Board of Supervisors. Following this public hearing, a decision regarding this Conditional Use Permit application by the Board of Supervisors would be appropriate. The applicant should be prepared to adequately address all concerns raised by the Board of Supervisors. CONDITIONAL USE PERMIT #08-11 SMITHFIELD PROPERTIES Staff Report for the Board of Supervisors Prepared: September 14, 2011 Staff Contact: Dana Johnston, Zoning Inspector This report is prepared by the Frederick County Planning Staff to provide information to the Planning Commission and the Board of Supervisors to assist them in making a decision on this request. It may also be useful to others interested in this zoning matter. Reviewed Action Planning Commission: 09/07/11 Recommended approval Board of Supervisors: 09/28/11 Pending LOCATION: This property is located at 417 Frog Hollow Road. MAGISTERIAL DISTRICT: Gainesboro PROPERTY ID NUMBER: 22-A-20 PROPERTY ZONING & PRESENT USE: Zoned: RA (Rural Areas) Land Use: Residential ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) Land Use: Residential South: RA (Rural Area) Land Use: Vacant East: RA (Rural Area) Land Use: Residential West: RA (Rural Area) Land Use: Residential PROPOSED USE: This is a request to re-establish a discontinued nonconforming use in order to enable construction of a single family dwelling with reduced setbacks on a property. Planning & Zoning: The applicant seeks to enable the ability to re-establish a dwelling on their 0.4 acre property. The subject property is located at 417 Frog Hollow Road, and is zoned RA (Rural Areas). The property is presently vacant, but a manufactured structure has recently been brought onto the site in an effort to establish a 24’X35’ dwelling on the site. The property’s limited size, when considering building setback requirements, renders the property a challenge to place a dwelling. The re-establishment of the residential nonconforming use would enable the dwelling to be placed on site in the general vicinity of a dwelling that previously existed. Page 2 CUP #08-11, Smithfield Properties September 14, 2011 Article IX of the Zoning Ordinance addresses Nonconforming Uses. More specifically, Chapter 165-901.03 establishes the process by which a legally nonconforming use may be re-established by obtaining a conditional use permit. The applicant has requested to re-establish a discontinued nonconforming use to enable construction of a single family dwelling. Section 165-901.03 of the Zoning Ordinance states: Any use that was legally nonconforming under the provisions of this Part 901 and that was discontinued due to abandonment may be re-established by obtaining a conditional use permit. Such conditional use permit shall be granted only for the use that is equal or lesser non- conformity than the original use in relation to intensity, type of use, dimensional requirements or other requirements. Such requests to re-establish an abandoned use shall be considered following the procedures for conditional use permits in this chapter. Property’s Zoning History The original Zoning Map for Frederick County (U.S.G.S. Quadrant) depicts the vicinity of the subject property as the A-1 (Agriculture Limited) Zoning District. In 1983, the A-1 and A-2 Districts were merged into a single district called the RA (Rural Areas) Zoning District. Single Family Dwellings are permitted in both the A-1 and the RA Zoning Districts. Property’s History The subject parcel was created on January 6, 1966 when the 0.4 acre parcel was transferred to James Seville (Frederick County Clerk’s Office, Book 328 Page 639). Health system approval for a dwelling was granted June 23, 1967. Research indicates that a dwelling was established on the property prior to 1970; this is evidenced by review of a 1970 aerial photo as well as Commissioner of the Revenue records. Aerial photos from 1988 and 2001 indicate that a dwelling was on the property. A house on the property burned down on June 2, 2004, as evidenced by an article in the Winchester Star; the house was not replaced. In a survey by Artz and Associates, dated December 7, 2007, the burnt dwelling’s foundation actually encroached the western property line up to 2.2 ft. Zoning Code Implications The County’s first Zoning Ordinance was adopted in 1967. The ordinance was overhauled, with significant revisions being adopted on November 1, 1973; this 1973 ordinance is the foundation for the ordinance in effect today, in 2011. A dwelling possibly having been erected around the same time that the County adopted a zoning ordinance, but certainly prior to the adoption of the 1973 Zoning Ordinance, would suggest that the dwelling would qualify as legally nonconforming. This legally nonconforming status would apply to the residential use as well as its associated building setbacks. Page 3 CUP #08-11, Smithfield Properties September 14, 2011 A boundary survey from 2007 depicts the previous location of the dwelling prior to burning down. The survey also annotates that the previous dwelling encroached the left property line by 2.2 feet, thereby establishing that the dwelling had no setback from the southwestern property line. Recent Actions The applicant purchased the property in 2007. In 2009, application for a building permit was made to establish a new dwelling on the property in the general location where the burnt dwelling previously stood. A complaint was received regarding the construction of a dwelling on the property, as well as that the dwelling was being placed too close to the adjacent (southwestern) property line. Upon further research, staff determined that while the location of the new dwelling was consistent with that of the burnt dwelling, because more than 12 months had passed since the dwelling burned, the placement near the adjacent property line was no longer legally nonconforming. It was determined that the ability to place the dwelling on the property, and its placement in the vicinity of the burnt dwelling, would require the re- establishment of the legally nonconforming use, achieved with the approval of a Conditional Use Permit. CONCLUSION FOR THE SEPTEMBER 7, 2011 PLANNING COMMISSION MEETING: Based on the documentation provided, staff believes that this property meets the intent of the Zoning Ordinance in respect to Section 165-901.03 – re-establishing a legally nonconforming use. It is also worth noting that the new dwelling will be less nonconforming than the original use due to the house being constructed five feet from the property line, unlike the previous dwelling which was constructed over the property line. Staff believes that this conditional use permit is appropriate for approval. PLANNING COMMISSION SUMMARY AND ACTION OF THE 9/07/2011 MEETING: Commission members asked why the structure could not be moved closer to the front of the property in order to meet setbacks. Members discussed whether the situation on this property should be considered as a legal nonconforming use due to the number of years since the original dwelling was destroyed and because the original dwelling was over the property line. They also discussed whether the CUP process was the most appropriate avenue to remedy the situation or whether it should be handled by the Board of Zoning Appeals. The staff noted that the challenge of this site is that the applicant is using the existing well and drainfield; the dwelling cannot be moved closer to the front because of the extreme topography and it would encroach on the existing drainfield. In addition, the size of the parcel and the building setbacks limit the placement of the structure. Based on historical research verifying that the previous dwelling was located in this same general area, it was believed the property met the intent of the zoning ordinance in respect to re-establishing a nonconforming use and was appropriate. Staff noted the new dwelling will be constructed five feet from the property line, unlike the previous dwelling Page 4 CUP #08-11, Smithfield Properties September 14, 2011 which was constructed over the property line, making this use less nonconforming than the original. During the public comment portion of the hearing, one adjoining property owner spoke in opposition to the conditional use permit. He was opposed to the placement of the new dwelling so close to his property line and up on a hill overlooking his home. He also believed the new structure would negatively affect his property value. The Planning Commission recommended approval of the conditional use permit by a majority vote, as follows: YES (TO REC. APPROVAL): Crosen, Ambrogi, Manuel, Oates, Madagan, Kriz, Triplett, Lemieux, Wilmot NO: Unger, Crockett, Thomas, Mohn Following this public hearing, a decision regarding this Conditional Use Permit application by the Board of Supervisors would be appropriate. The applicant should be prepared to adequately address all concerns raised by the Board of Supervisors.