HomeMy WebLinkAbout09-06 BOS Staff ReportCONDITIONAL USE PERMIT #09-06
JOYCE MYERS
Staff Report for the Board of Supervisors
Prepared: February 5, 2007
Staff Contact: Kevin T. Henry, Planning Technician
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: 11/15/06 Tabled for 60 days by Applicant
Planning Commission: 01/17/07 Recommended Denial
Board of Supervisors: 02/14/07 Pending
LOCATION: This subject property is located at 625 Town Run Lane (Route 1012).
MAGISTERIAL DISTRICT: Opequon
PROPERTY ID NUMBER: 85-A-137
PROPERTY ZONING & PRESENT USE: Zoned: RA (Rural Areas)
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RP (Residential Performance) Land Use: Vacant
South: RA (Rural Areas) Land Use: Vacant
East: RA (Rural Areas) Land Use: Residential
West: RA (Rural Areas) Land Use: Agricultural
PROPOSED USE: Kennel
REVIEW EVALUATIONS:
Virginia Dept. of Transportation: The application for a Conditional Use Permit for this property
appears to have little measurable impact on Route 1012, the VDOT facility which would provide
access to the property. Existing entrance is adequate for proposed use. However, should use ever
expand in the future, the entrance may have to be upgraded to VDOT commercial standards.
Fire Marshal: Plan approval recommended.
Inspections Department: Kennel building shall comply with The Virginia Uniform Statewide
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February 5, 2007
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Building Code and Section 304, use group B (Business) of the International Building Code. Other
Code that applies is ICC/ANSI A117.1-03 Usable and Accessible Buildings and Facilities. Please
note the requirements in IBC for special inspections under Chapter 17 for this type structure. Please
submit site plan showing accessible parking and accessible entrance at the time of permit application.
All required egress doors shall be accessible.
Winchester-Frederick County Health Department: Health Department has no objections or
comments as no increase in water use to occur.
Planning & Zoning: The applicant has applied for this CUP as a result of a zoning violation of the
Frederick County Zoning Ordinance. The applicant has been in violation of the Ordinance since
June 9, 2006 and has shown diligence in reducing the number of dogs, as well as apply for the CUP,
which is a means of possibly resolving the zoning violation. Staff has had numerous conversations
and a few site visits to assist the applicant in achieving a land use that will not negatively affect
neighboring properties.
Dog kennels are a permitted use in RA (Rural Areas) Zoning District with an approved CUP. The
proposed use will take place on a 1.04 acre tract of land located in the RA (Rural Areas) Zoning
District. Staff would note that there is currently one dwelling on the property, which is being used
as a residence.
The kennel will contain no more than ten (10) dogs/puppies, as well as including any litters. The
applicant has proposed outdoor kennels, but has given thought to an indoor facility in the future.
Staff has also specified that no breeding will take place on site, helping to limit litters.
Within the Frederick County Zoning Ordinance, kennels are required to maintain a Category C
zoning district buffer. Section 165-41B of the Frederick County Zoning Ordinance requires the
Category C buffer be placed along any residential uses. This buffer requirement is 100’, in which,
75’ is inactive (strictly landscaped area) and 25’ active. The buffer would need to maintain 3 trees
per 10 linear feet and a six (6) foot tall opaque fence would also have to be placed along the above
specified boundaries. Currently the boundaries in question that would need this buffer would be the
northern and eastern boundaries. A minor site plan will be required to ensure that all the conditions
and other agency requirements are adhered to.
As with any kennel, noise from this type of business negatively impacting adjoining property owners
is a concern. The 2003 Frederick County Comprehensive Policy Plan ascertains that certain types of
business uses may be located at rural locations if adverse impacts on surrounding uses can be
avoided (p.6-60). Adjoining the property to the north is a higher density residential subdivision
zoned RP (Residential Performance) that places this kennel in doubt. The four (4) proposed
dwellings that adjoin the applicant’s property will be within 200’ of the dog cages.
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February 5, 2007
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Barking generated from the dogs in the kennel could create a nuisance for these adjoining owners
within the RP (Residential Performance) subdivision. In accordance with Section 48-23 of the
Frederick County Code; It shall be unlawful, after written notice by the Sheriff to the owner,
custodian, or person in control or possession of a dog, for such person to suffer or allow such dog to
yelp, whine or otherwise make unreasonably loud noises as are plainly audible to adjoining residents
or property owners in a residential subdivision so as to unreasonably annoy, disturb, bother, or vex
such residents or property owners. Recognizing this code provision, it is foreseeable that this kennel
may conflict with the adjacent residential development.
STAFF CONCLUSIONS FOR THE 11/15/06 PLANNING COMMISSION MEETING:
Should the Planning Commission find this use appropriate, Staff would recommend the following
conditions:
1.All review agency comments and requirements shall be complied with at all times.
2.The kennel shall strictly be limited to no more than ten (10) dogs/cats, regardless of
animal age.
3.This permit is for a kennel (non-boarding) only.
4. No breeding of the animals shall take place on this property.
5.The kennel will adhere to a Category C buffer as specified in the Frederick County
Zoning Ordinance.
6.A minor site plan will be required within six (6) months of approval of this permit.
7.Any violation of Section 48-23 of the Frederick County Code may be cause for
revocation of this permit.
8.Inspection of the facilities by the Animal Control Officer shall be required to determine
if the housing for the dogs is adequate and appropriate.
9. All requirements of the Frederick County Code and the Code of Virginia pertaining to
dog kennels shall be complied with at all times.
10. Any expansion or change of use shall require a new CUP.
PLANNING COMMISSION SUMMARY AND ACTION OF THE 11/15/06 MEETING:
A representative for the adjoining property owner, Arcadia Development Company and Arcadia
Southern Hills, came forward to express concerns about the appropriateness of this use at the
proposed location, due to the proximity of adjacent residential use and the size of the applicant’s
parcel. She noted that the applicant’s property borders four of their lots within the Southern Hills
subdivision on which single-family homes are currently being constructed.
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February 5, 2007
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The applicant’s attorney said he was just recently engaged to represent Ms. Myers and this was after
the filing of the CUP, as well as the court case hearing. He stated that the applicant’s operation is a
501(C)3 tax-exempt charitable organization, which is designated by the IRS solely for rescuing dogs
and cats from shelters where they could be euthanized. He said his client has received national
recognition for her efforts. He requested that the Commission consider tabling the CUP, to provide
them with more time to study the issues raised and to determine whether the conditions of the CUP
will work for his client.
Commission members commented that previously-approved CUPs for kennels in Frederick County
have required dogs to be housed inside an enclosed building at night. It was noted that these are
typically concrete block buildings; metal structures would not be sufficient to dampen sound.
Commissioners also had questions about the size of a proposed structure and staff pointed out the
limited area a structure could be placed on the property due to zoning district buffer requirements, as
well as normal building restriction lines. It was also noted that the kennel was not in operation prior
to Southern Hills being rezoned for high-density residential. Some members of the Commission said
they would have difficulty supporting an outdoor kennel, especially next to high-density residential
use, because of the possibility of the noise becoming a nuisance for the neighbors. Commission
members voted unanimously to table the proposed CUP for 60 days, at the applicant’s request, to
allow the applicant time to address issues raised by the staff and Planning Commission.
SUMMARY OF THE 12/05/2006 GENERAL DISTRICT COURT HEARING:
At the preliminary hearing, staff suggested to the judge of the General District Court to provide a
date for the case to be heard after the Board of Supervisors is able to make a legislative action on the
land use application. The judge found that it would be appropriate to hear the case after this action
had taken place and set a court date for February 27, 2007, at which time the zoning violation will be
determined by the court.
PLANNING COMMISSION SUMMARY AND ACTION OF THE 01/17/07 MEETING:
The staff reported that a site visit confirmed the applicant had not yet addressed all of the concerns
raised by the Commission at the November 15 meeting. The staff reported that this violation was
before the General District Court, but was extended to allow time for legislative action to take place
on the CUP. Staff presented a letter from the applicant referencing a February 27, 2007 court
hearing, which would follow legislative action by the Board of Supervisors at their meeting
scheduled for February 14, 2007. Staff believed it would be appropriate for the Commission to make
a decision on this application to avoid a repetitive cycle between the court system and the County’s
legislative bodies.
The applicant’s attorney, Mr. Thomas (Ty) Moore Lawson, stated that the court hearing on
December 5, 2006 was a preliminary hearing and the judge set a court date of February 27, 2007.
Mr. Lawson said they requested, but was not granted, an earlier date to deal with the legal issues,
particularly with the definition of a kennel; he explained that the zoning ordinance defines a kennel
as an operation for compensation and Ms. Myers is purely charitable and has been recognized as
such by the IRS. Mr. Lawson explained that the judge did not instruct him or the County to resolve
this legislatively before coming back. Mr. Lawson added that Ms. Myers has voluntarily removed
some of the structures on the property used to house animals and she has also reduced the number of
animals. Mr. Lawson requested that this application be tabled in order for the court hearing to take
place.
The Planning Commission’s legal counsel believed it may be out of the county’s jurisdiction to deal
with this application until a resolution takes place in the criminal court, since the applicant has been
charged criminally. However, since the Planning Commission acts in an advisory capacity to the
Board, he did not foresee a problem with the Commission acting on the CUP.
During the public comment portion of the meeting, the attorney on behalf of the owners of the
Southern Hills property, the adjoining RP-zoned property to the north, said the owners are concerned
about the location for this type of use. He noted that the kennel will abut the first four houses
scheduled to be built, which presents a difficult situation for perspective purchasers in the planned
community. The adjoining property owners believed the applicant’s intentions were laudable;
however, and offered to work with the applicant to find another location that would be suitable,
offering possibilities with other properties they own in Frederick County.
Members of the Commission applauded the intentions of Ms. Myers for what she was attempting to
do; however, many members of the Commission believed the location of the facility was not
appropriate. Other Commissioners believed this use could work at this location, if the applicant
could meet all of the conditions of the CUP; it was pointed out that the County could pursue other
avenues, if the noise from the dogs created a nuisance.
A motion was made, seconded, and passed by the following majority vote to recommend denial of
the CUP.
YES (TO DENY): Mohn, Kerr, Triplett, Kriz, Ours, Thomas, Light, Manuel, Watt, Unger,
Wilmot
NO: Oates
(Note: Commissioner Morris was absent from the meeting.)
STAFF CONCLUSIONS FOR THE 02/14/07 BOARD OF SUPERVISORS MEETING:
There have been no changes to the CUP application since it was last presented to the Planning
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February 5, 2007
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Commission. One change that occurred on the evening was an addition to the sixth condition on the
application.
The Planning Commission recommended denial of the CUP. If the Board feels that this application
is an appropriate use, staff has provided the following conditions, with the addition highlighted:
1.All review agency comments and requirements shall be complied with at all times.
2.The kennel shall strictly be limited to no more than ten (10) dogs/cats, regardless of animal
age.
3. This permit is for a kennel (non-boarding) only.
4. No breeding of the animals shall take place on this property.
5.The kennel will adhere to a Category C buffer as specified in the Frederick County Zoning
Ordinance.
6.A minor site plan will be required within six (6) months of approval of this permit and
implementation of improvements six (6) months, post site plan approval.
7.Any violation of Section 48-23 of the Frederick County Code may be cause for revocation of
this permit.
8.Inspection of the facilities by the Animal Control Officer shall be required to determine if
the housing for the dogs is adequate and appropriate.
9.All requirements of the Frederick County Code and the Code of Virginia pertaining to dog
kennels shall be complied with at all times.
10. Any expansion or change of use shall require a new CUP.
Following the required 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.
CUP #09-06 – Joyce Myers
February 5, 2007
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