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HomeMy WebLinkAbout07-10 BZA Staff ReportCO APPEAL APPLICATION #07-10 HISTORIC JORDAN SPRINGS a Staff Report for the Board of Zoning Appeals w 1� Prepared: November 8, 2010 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 HEARING DATE: November 16, 2010 - Pending LOCATION: The property is located at 1160 Jordan Springs Road. MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER(S): 44-A-294 and 44 -A -294A PROPERTY ZONING & USE: Zone: B-2 (Business General) and HA (Historic Overlay) Land Use: Historic and Office ADJOINING PROPERTY ZONING & USE: North: R4 (Residential Planned) East: RA (Rural Areas) South: RA (Rural Areas) West: R4 (Residential Planned) Land Use: Vacant Land Use: Vacant Land Use: Vacant and Residential Land Use: Vacant APPEAL: Applicant is appealing the decision of the Zoning Administrator pertaining to the proffered uses on this property, as well as violations committed under Sections 165-101.07D and 165-102.06 of the Frederick County Zoning Ordinance. REASON FOR APPEAL: Applicant states the properties are not in violation of approved proffers. Appeal Application #07-10, Historic Jordan Springs November 8, 2010 Page 2 STAFF COMMENTS: The property has been utilized in the past as a resort, a hotel, a seminary by the Missionary Servants of the Holy Trinity, a rehabilitation center by Shalom et Benedictus, and more recently as offices for County Court Reporters, Inc. In 2001, the Frederick County Board of Supervisors approved Rezoning #10-01 for Jordan Springs (County Court Reporters, Inc.) which rezoned the 10.33 acre site from the RA (Rural Areas) District to the B2 (Business General) District with proffers, and with the HA (Historic Area) Overlay Zone. The voluntary proffered conditions associated with Rezoning #10-01 restricted the site usage to: • Health Services • Legal Services • Engineering, accounting, research, management, and related services • General business offices • Public buildings • Residential use, which are accessory to allowed business uses Since the property had not been utilized for more than one year prior to the approval of Rezoning #10-01, the property would not have any legally nonconforming uses and all future use of the property would be guided by the proffered conditions associated with Rezoning #10-01. In the summer of 2009, the property owners were informed that certain activities being conducted on the property (special events such as weddings, dinners and other similar events) were not permitted and were in violation of the proffered conditions associated with Rezoning #10-01. It was further explained that in order to remedy this violation, the property owner needed to either cease the uses or secure a proffer amendment to include the new uses (i.e., special events such as weddings, dinners and other events). The submission of a proffer amendment application (i.e., Rezoning Application) and gaining its approval by the Board of Supervisors would be the initial step towards resolving the violations on the property. Staff had several discussions and meetings with the owners in an attempt to rectify the situation. The applicant submitted a Rezoning Application, #06-09, in order to revise proffers associated with the previously approved Rezoning #10-01 and to expand the property's permitted uses. The Planning Commission heard this application on January 6, 2010, and recommended approval to the Frederick County Board of Supervisors. The application was scheduled for public hearing before the Board of Supervisors three times; the applicant requested the hearing be tabled on two occasions and finally withdrew the application on August 11, 2010. Therefore, the Board of Supervisors has not approved a subsequent zoning amendment on the property to permit the commercial activities occurring on this property (i.e., special events such as weddings, dinners and other events). Without a pending rezoning application seeking to amend the property's proffer, yet the illegal uses Appeal Application #07-10, Historic Jordan Springs November 8, 2010 Page 3 were continuing to be operated on the property, the applicant was cited on August 25, 2010 for violations of the Frederick County Zoning Ordinance with regards to the Board of Supervisors approved proffers associated with Rezoning # 10-01. (See Letter of Violation.) The applicant is appealing the decision of the Frederick County Zoning Administrator regarding the enforcement of proffers assigned to Rezoning #10-01, to include the following: The applicant has stated that the hair salon on the property is not operated by the owners, and that the salon is used in conjunction with events hosted at the property. Staff Response: The property owner is responsible for adhering to zoning ordinance requirements applicable to the property, regardless of who might be operating the use or business. A business license was submitted for a hair salon located within an accessory structure on the property; the business license was denied for the reason that Section 165-101.07D of the zoning ordinance requires that no structures be occupied unless the requirements of the Frederick County Zoning Ordinance are met. A hair salon is not a permitted use depicted by the approved proffers associated with Rezoning #10-01. This building was occupied by the salon, yet the building was never issued a Certificate of Occupancy (CO) for a change of use to enable a hair salon. 2. The applicant states the property has hosted events such as weddings and wedding receptions, special events and corporate events, charity pub nites with live entertainment, and other corporate events on the property. The applicant further states that the property has been used for events since 1949 and has had commercial activities since 1972. The applicant states that the "Public Buildings" use permits these various uses. Additionally, the applicant states that the Frederick County Zoning Code does not define a "Public Building", and historical usage of the building on the property is, therefore, exempt from the requirements of obtaining a Certificate of Occupancy (CO). Staff Response: In the past, the property may have operated with the uses the applicant stated in the appeal application. However, the owners of the property requested the property be rezoned with proffers, and upon granting approval of the rezoning application, the Board accepted the applicant's list of the uses which would be permitted on the property - these proffered uses are the only uses that can be conducted on this property. It is important to note that proffers are conditions that a property owner voluntarily offers to be placed on the property when the owner asks the County to rezone the property. When a rezoning is approved with proffers, the proffers provide restrictions on the property beyond the regulations of the zoning district in which the property is located. Additionally, uses which are discontinued for more than one year are no longer deemed legally nonconforming and must cease to operate. Appeal Application #07-10, Historic Jordan Springs November 8, 2010 Page 4 Therefore, events being held on the property listed with this application, and the events noted on the applicants' website and flyer (See attached Web pages and flyer), are not permitted uses by the proffers approved with Rezoning # 10-01. The property is in violation of Section 165-102.06 of the Frederick County Zoning Ordinance. This section of the ordinance sets forth the procedures for conditional rezoning, proffered conditions, and enforcement of rezoning conditions. Furthermore, this section requires that when a proffered condition is accepted as part of an amendment to the Frederick County Zoning Ordinance, the conditions shall remain in effect and be held in compliance until a subsequent amendment changes the zoning on the properties covered by the conditions. All properties located within Frederick County's commercial and industrial zoning districts (such as the B2 District in which the subject property is located) are identified by their use(s), i.e., restaurants, medical offices, retail stores, etc., and are considered public ptaces, only in the sense that they are open to the public. They are not public buildings as suggested by the applicant; a public building would be owned or occupied by a government entity as referenced in the above paragraph. The reference to public building(s) in the context of the rezoning of this property was to allow the property owner to lease office space for government services or agencies, i.e., social services, satellite office for local government, sheriff s office sub -station. This use would apply to state and federal government services as well. The uses and events that are currently occurring on the property are not specifically identified as permitted uses in the proffer approved with Rezoning #10-01, and are violations of the associated proffers. As to the applicants' contention that a CO is not required for the property based on the historical usage for ongoing activities, this is simply not the case. These buildings are required to be in compliance with the Frederick County Zoning Ordinance and have a CO to operate. STAFF CONCLUSIONS FOR THE NOVEMBER 16 2010 MEETING: The decision of the Zoning Administrator, with regards to the interpretation and enforcement of the proffered conditions associated with Rezoning # 10-01, is correct. Rezoning # 10-01 specifically listed the permitted uses for the property, and said list clearly did not include the activities in question such as: special events such as weddings, dinners and other similar events. Any changes to the proffers or uses on this property are beyond the scope of the Board of Zoning Appeals, and is a legislative action involving the Frederick County Board of Supervisors not the Board of Zoning Appeals. Staff is requesting the Board of Zoning Appeals to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance regarding the violations of the proffered uses on this property.