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HomeMy WebLinkAbout03-15 BZA Staff Report - OctoberAPPEAL APPLICATION #03-15 JAMES W. LOVELESS, JR. APPLICANT Staff Report for the Board of Zoning Appeals Prepared: September 30, 2015 Staff Contact: Mark R. Cheran, Zoning Administrator ______________________________________________________________________________ This report is prepared by the Frederick County Planning Staff to provide information to the Board of Zoning Appeals to assist them in making a decision on this request. It may also be useful to others interested in this zoning matter. BOARD OF ZONING APPEALS MEETING Reviewed Action August 18, 2015 Public Hearing Held; Action Postponed 30 days September 15, 2015 Public Meeting; Action Postponed 30 days October 20, 2015 Public Meeting; Action Pending APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to land uses permitted within the M-1 (Light Industrial) Zoning District. Question for BZA: The question to the BZA is whether or not indoor recreation (SIC 79) is a permitted use in the M1 Zoning District. The zoning ordinance lists the permitted uses, and SIC 79 is not included as permitted use. LOCATION: The subject property is located at 291 Independence Drive. MAGISTERIAL DISTRICT: Shawnee PROPERTY ID NUMBER: 64-11-16 PROPERTY ZONING & USE: Zoning: M-1 (Light Industrial) Land Use: Warehouse ADJOINING PROPERTY ZONING & USE: North: M-1 (Light Industrial) Land Use: Warehouse/Office East: M-1 (Light Industrial) Land Use: Warehouse South: M-1 (Light Industrial) Land Use: Vacant West: M-1 (Light Industrial) Land Use: Warehouse Appeal Application #03-15 – James W. Loveless, Jr. September 30, 2015 Page 2 STAFF COMMENTS: The property located at 291 Independence Drive was cited for violation of the Frederick County Zoning Ordinance Section 165-606.02, on June 8, 2015; for operation of the FASST fitness center/gym within the M-1 (Light Industrial) Zoning District. The County of Frederick uses the Standard Industrial Classification Code (SIC) to determine the types of uses that are allowed within the County’s commercial and industrial zoning districts. Fitness centers/gyms are classified as SIC-79 Amusement and Recreation Services operated indoors. This use is only permitted within the B-2 (General Business) and B-3(Industrial Transition) Zoning Districts. The SIC-79 classification use is not listed under the M-1 Zoning District and is therefore not a permitted use in the M1 Zoning District. The Applicant contends that the use is permitted in the M-1 Zoning District. For this use to be allowed in the M-1 Zoning District the use must be identified under the list of permitted uses within the zoning district. Attached is Section 165-606.02 which clearly lists the allowed M-1 uses. This property being used as a fitness center/gym is in violation of the Frederick County Zoning Ordinance. The question to the BZA is whether or not indoor recreation (SIC 79) is a permitted use in the M1 Zoning District. The zoning ordinance lists the permitted uses, and SIC 79 is not included and therefore is not a permitted use. STAFF CONCLUSIONS FOR THE AUGUST 18, 2015 MEETING: Staff is requesting to the Board of Zoning Appeals to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-606.02 that SIC-79 Amusement and Recreation Services operated indoors is not a permitted use within the M-1 Zoning District. STAFF CONCLUSION FOR THE SEPTEMBER 15, 2015 MEETING: On August 18, 2015, the BZA tabled action for 30 days to allow staff to consult with the County Attorney, as to time limitations for BZA action and the placement of conditions on the ultimate BZA action. The Applicant during the public hearing stated that the County allowed the prior tenant at this location to operate as a business known as East Coast Hobbies remote car track. This use was and is classified as SIC-79 and is not allowed in the M-1 District. The tenant was improperly issued a business license by the Commissioner of the Revenue Office without a securing zoning approval. Because of the improper issue of the business license the County worked with East Coast Hobbies to allow this use to occur at this property with the understanding that once East Coast Hobbies vacated the site, the use would no longer be permitted on the property. The next tenant (FASST Training) failed to apply for and secure approval of a business license. However, FASST Training did apply for a business license after the property was cited for an illegal business. The business license was reviewed by staff and denied for a fitness center/gym, as the use is not permitted within the M1 Zoning District. Staff would note the Winchester Soccer Academy does not have a business license to operate from this property, yet is currently a tenant. Appeal Application #03-15 – James W. Loveless, Jr. September 30, 2015 Page 3 The County Attorney advised that the BZA needed to take action within 60 days of the first hearing date (August 18, 2015) and that it was inappropriate to place conditions on a BZA action. Therefore, the BZA must take action no later than October 20, 2015, and the BZA’s action is to either affirm or overrule the decision of the Zoning Administrator. STAFF CONCLUSION FOR THE OCTOBER 20, 2015 MEETING: Staff gave an overview to the Board of Zoning Appeals during the September 15, 2015 meeting. The County allowed the prior tenants at this location to operate as a business know as East Coast Hobbies. This use was and is classified as SIC-79 and is not allowed in the M-1 District. The tenant was improperly issued a business license by the Commissioner of the Revenue Office without securing zoning approval. The County worked with East Coast Hobbies to allow this use to occur at this property with the understanding that once East Coast Hobbies vacated the site, the use would no longer be permitted on the property. The next tenant (FASST Training) failed to apply for and secure approval of a business license. However, FASST Training did apply for a business license after the property was cited for an illegal business. The business license was reviewed by staff and denied for a fitness center/gym, as the use is not permitted within the M1 Zoning District. Staff would note the Winchester Soccer Academy does not have a business license to operate from this property. Mr. Williams, the County Attorney, stated the County’s position on this is very clear. The Board of Zoning Appeals is to review and uphold the decision of the Zoning Administrator and if the ordinance is clear there is no room for interpretation of the ordinance. If the Board of Zoning Appeals decides to overturn the decision of Zoning Administrator, than it would be advisable for the Board of Supervisors to file a petition with the Circuit Court. The Board Zoning Appeals voted to allow the FASST Training and Winchester Soccer Academy to remain at this location for an additional 30 days. The Board hopes that within 30 days the two tenants would be able to relocate to a new location with proper zoning. The Board of Zoning Appeal and the Applicant are aware that a decision will be made at the next meeting of the Board of Zoning Appeals. The question to the BZA is whether or not indoor recreation (SIC 79) is a permitted use in the M1 Zoning District. The zoning ordinance lists the permitted uses, and SIC 79 is not included as a permitted use.