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Home My WebLink About07-10 CommentsRTM/ks 12/14/10 VIRGINIA: IN THE CIRCUIT COURT OF FREDERICK COUNTY IN RE: NOVEMBER 16, 2010 DECISION OF THE BOARD OF ZONING APPEALS OF FREDERICK COUNTY, VIRGINIA BOARD OF SUPERVISORS OF FREDERICK COUNTY, VIRGINIA Petitioner GREIG D.W. AITKEN TONIE M. WALLACE AITKEN Respondents. CASE NO. (100-100q WR[T OF CERTIORARI TO: THE BOARD OF ZONING APPEALS OF FREDERICK COUNTY THIS matter came on this day upon the Petitioner's request for a Writ of Certiorari, pursuant to its Petition to Review the decision of the Board of Zoning Appeals of Frederick County ("BZA") rendered on November 15, 2010. IT APPEARING TO THE COURT that the request for a Writ of Certiorari is properly filed pursuant to Virginia Code § 15.2-2314, which provides that the Court shall issue a Writ of Certiorari upon the presentation of such request. It is therefore ORDERED that the Petitioner is hereby granted a Writ of Certiorari, and that the BZA shall return to this Court, with a copy to counsel for Petitioner and Respondents, on or before January 7, 2011, a copy of the complete file and record of the BZA in this matter, certified as a true and accurate copy. This Writ of Certiorari shall be served on Bev Dellinger, Secretary of the BZA, at 107 North Kent Street, Winchester, VA 22601_ . ENTER this day of 2010 Judge IFOR THIS: Robe t T. Mitc Zell, J., E quire VSB No. 003190 Hall, Monahan, Engle, Mahan & Mitchell 9 East Boscawen Street P. O. Box 848 Winchester, VA 22604-0848 Phone: 540-662-3200 Fax: 540-662-4304 Email: rmitchell@hallmonahan.com 2 Roderick B. Williams, Esquire VSB No. 34310 County Attorney of Frederick County 107 North Dent Street Winchester, VA 22601 Phone: 540-722-8383 Fax: 540-667-0370 Email: rwillianco.frederick.va.us Co -Counsel for Board of Supervisors of Frederick County S Step1 e `" Pf7er, Jr., Iksquire VS13T0. 44436 21 South Lotidoiul Street Winchester,,", 22601 P. O. Box 8809 Winchester, VA 22604 Phone: 540-667-1266 Fax: 540-545-8582 Counsel for Respondents 3 B, ARD GIF ZONING APPEALS 107 N. Kent Street Winchester, VA 22601 540/665-5651 FAX: 540/665-6395 MEMORANDUM TO: Frederick County Board of Zoning Appeal FROM: Beverly Dellinger, BZA Secretary -#�Y SUBJECT: Appeal of November 16, 2010 BZA Decision DATE: December 22, 2010 On November 16, 2010, the Board of Zoning Appeals (BZA) sustained the appeal of the Zoning Administrator's decision pertaining to the proffered uses on the Historic Jordan Springs property. The Board of Supervisors has filed an appeal in the Circuit Court of Frederick County regarding the BZA's November 16, 2010 decision. The appeal process does not appear to require the BZA's direct involvement beyond providing copies of the Jordan Springs appeal file and a draft copy of the BZA's November 16, 2010 meeting minutes, by January 7, 2011. Staff will provide copies of the file and draft meeting minutes by the January 7, 2011 deadline. In order to formalize the BZA's November 16, 2010 meeting minutes, the BZA will hold its meeting on January 18, 2011. The January meeting agenda will be distributed about a week prior to the meeting date. Please place the January 18, 2011 BZA meeting on your calendar so that we have a quorum to act on the meeting minutes. Please contact me should you have questions. Thank you. cc: Mark Cheran, Zoning Administrator ERL/bad Frederick County, Virginia 21 South Loudoun Street Winchester, Virrninia 22601 P.U. Box 809 Winchester, Virginia 22604 Telephone 540.667.1266 September 30, 2010 VIA EMAIL Mark Cheran Zoning Administrator County of Frederick Department of Planning and Development 107 North Kent Street Winchester, Virginia 22601 Stephen L Pettler, Jr. Facsimile 540.667.1312 pettle � harrisun-johnston.cum Mobile 540.664.5134 In Re: Appeal Application; Proffer Amendment RZ#06-09•Historic Jordan Springs; Tax Man Parcels 444-294 and 44 -A -294A; 10.33 Acres Zoned B2 (Business General) and Historic Area Overlay Zone Mark: This letter will confirm that the above -referenced appeal has been rescheduled for November 16, 2010 instead of October 24, 2010. Should you require anything additional, please do not hesitate to contact me. Ve truly yours, St h L. Pettler, r. SL mag cc: Clients CERTIFIED MAIL August 25, 2010 COUNTY of FREDERICK Department of Planning and Development 540/665-5651 LETTER OF VIOLATION FAX: 540/665-6395 Greig D. W. Aitken and Tonie W. Wallace 1160 Jordan Springs Road Stephenson, Virginia 22656 RE: 1160 Jordan Springs Road Property Identification Number (PIN): 44-A-294 & 44 -A -294A Zoning District: RA (Rural Areas) / B-2 (Business General) /HA (Historic Area) Overlay Zone Dear Mr. Aitkens and Ms. Wallace: This letter is to inform you that the above -referenced properties are in violation of the proffered conditions approved with Rezoning 410-01. This rezoning was approved by the Board of Supervisors on December 12, 2001. The properties were rezoned from Rural Area (RA) Zoning District to Business General (B-2) Zoning District and Historic Area (HA) Overlay Zone, and were limited by proffer to the following uses: • 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 The properties are currently in violation of the approved proffers as a variety of commercial activities including but not limited to the following are occurring on the properties: • Hosting weddings and wedding receptions on site • Hosting dinner theatre on site • Hosting charity pub nites with live entertainment on site • Hosting holiday dinners on site • Hosting special events and corporate events on site • A business (hair salon) that is not proffered to be on site • A business sign that is not of a monument -type for which there is no record of a building permit, for the sign 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 Page 2 Greig D. W. Aitkens and Tonie W. Wallace Re: 1160 Jordan Springs Road August 25, 2010 The above -referenced commercial activities were listed on the Historic Jordon Springs' web site, flyer, and press release; which listed all the past and future activities occurring on the properties. These activities have had from eight (8) to four hundred (400) guests at any given event. Research of County records indicates that a Certificate of Occupancy (CO) for the aforementioned commercial activities on the properties has not been issued. Therefore, this property is in violation of Section(s) 165-101.07 D and 165-102.06 of the Frederick County Zoning Ordinance. Section 165-101.07 D requires that no structure(s) be occupied until a CO has been issued by the Director of Code Administration (Building Official). No CO shall be issued unless all of the requirements of the Zoning Ordinance have been met. The requirements of the Frederick County Zoning Ordinance have not been met with regards to Rezoning #10-0 1. Section 165-102.06 of the Frederick County Zoning Ordinance 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 complied with, until a subsequent amendment changes the zoning on the properties covered by the conditions. The Frederick County Board of Supervisors has not approved a subsequent zoning amendment on the properties to allow the ongoing commercial activities occurring on these properties. This office will allow thirty (30) days from receipt of this letter to resolve these violations. Specifically, resolution of these violations may be accomplished by amending the proffers via a rezoning approved by Frederick County allowing for additional uses to occur on the properties. Failure to comply with the Code of Frederick County will result in a criminal complaint being filed against you. You may have the right to appeal the above notice of violation within 30 days of the date of this letter in accordance with Section 15.2-2311 of the Code of Virginia. This decision shall be final and unappealable, if it is not appealed within 30 days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165-1001.02, of the Frederick County Zoning Ordinance. This provision requires the submission of an application form, a written statement setting forth the decision being appealed, the date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information you may want to submit, and a $300.00 filing fee ($250.00 filing fee and a $50.00 refundable sign deposit). Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. I have included a copy of the proffers for Rezoning #10-01 for your review. Page 3 Greig D. W. Aitkens and T onie W. Wallace Re: 1160 Jordan Springs Road August 25, 2010 Contact me regarding any questions that you may have at (540) 665-5651. Sincerely, f Mdrk R. Ch ran Zoning Administrator Enclosure MRC/dlw cc: Charles DeHaven, Stonewall District Supervisor Stanley Crockett, Gary R. Oates, Stonewall District Planning Commissioners Scott Fincham, Environmental Health Manager, Lord Fairfax Health District John Trenary, CBO, Building Code Official Dennis Limburg, Deputy Chief, Fire Marshal AMENDMENT RESOLUTION & PROFFERS FOR REZONING #10-01 Action: PLANNING COMMISSION: December 5, 2001 - Recommended Approval BOARD OF SUPERVISORS: December 12, 2001 - ❑ APPROVED ❑ DENIED AN ORDINANCE AMENDING THE ZONING DISTRICT MAP REZONING #10-01 OF JORDAN SPRINGS (COUNTY COURT REPORTERS, INC.) WHEREAS, Rezoning # 10-01 of Jordan Springs was submitted by Triad Engineering, Inc. to rezone 10 acres from RA (Rural Areas) to B2 (Business General) with the HA (Historic Area) Overlay Zone. This property is located at 1160 Jordan Springs Road and identified with Property Identification Number 44-A-294 in the Stonewall Magisterial District; and WHEREAS, the Planning Commission held a public hearing on this rezoning on December 5, 2001; and WHEREAS, the Board of Supervisors held a public hearing on this rezoning on December 12, 2001; and WHEREAS, the Frederick County Board of Supervisors finds the approval of this rezoning to be in the best interest of the public health, safety, welfare, and in conformance with the Comprehensive Policy Plan; NOW, THEREFORE, BE IT ORDAINED by the Frederick County Board of Supervisors that Chapter 165 of the Frederick County Code, Zoning, is amended to revise the Zoning District Map to change 10 acres from RA (Rural Areas) to B2 (Business General) with the HA (Historic Area) Overlay Zone, as described by the application and plat submitted, subject to the attached conditions voluntarily proffered in writing by the applicant and the property owner. PDRes #28-01 This ordinance shall be in effect on the date of adoption. Passed this 12th day of December, 2001 by the following recorded vote: Richard C. Shickle, Chairman -Ay-e- Sidney A. Reyes AWP W. Harrington Smith, Jr. Aye Margaret B. Douglas Aye Charles W. Orndoff, Sr. Aye Robert M. Sager Aye A COPY ATTEST John R. ley, Jr. Frederick County Administrator PDRes. #28-01 O:\Agmdas\COMMENTS\RFZONRdG\RESOLUTNUordan Springs.wpd REZONING REQUEST PROFFER Property Meentifieatio:: I'-,Tu.-.ibe.-AA-it ll -101 Stonewall Magisterial District Page 1 of 2 Preliminary Matters Pursuant to Section 15.2-2296 et. sea., of the code of Virginia, 1950, as amended, and the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the undersigned applicant hereby proffers that in the event the Board of Supervisors of Frederick County, Virginia, shall approve Rezoning Application #10-01 for the rezoning of 10.33 (+/-) acres from Rural Area (RA) Zoning District to Business General (B-2) Zoning District and Historic Area (HA) Overlay Zone. Development of the subject property shall be done in conformity with the terms and conditions set forth herein, except to the extent that such terms and conditions may be subsequently amended or revised by the applicant and such be approved by the Frederick County Board of Supervisors in accordance with Virginia law. In the event that such rezoning is not granted, then these proffers shall be deemed withdrawn and have no effect whatsoever. The undersigned, that owns the above described property, hereby voluntarily proffers that if the Board of Supervisors for the County of Frederick, Virginia approves the rezoning for the 10.33 (+/-) acres the undersigned will: Transportation Conduct detailed traffic studies and analysis at the site planning stage in accordance with the Virginia Department of Transportation (VDOT) standards. Provide necessary right of way along Route 644 for road improvements per VDOT. Entrances shall be limited to two (2) commercial entrances onto Route 644. All entrances shall be constructed in accordance with VDOT standards and Frederick County standards. Allowed Uses Limit the allowed uses to: Health Services Legal Services Engineering, accounting, research, management and related services. General business offices Public buildings Residential uses which are accessory to allowed business uses REZONING REQUEST PROFFER Property Identification Number 44-((A+294 Stonewall Magisterial District Page 2 of 2 Signage Limit the allowed business sign to one sign. The sign shall be of monument -type construction and limited to fifty (50) square feet in size or a placard. Off-site Improvements to Lagoon Sewerage System Pond Provide security -type fencing along the parameter of the lagoon sewerage system pond that services the 10.33 (+/-) acres. The conditions proffered above shall be binding upon the heirs, executors, administrators, assigns and successors in interest of the Applicant and Owner. In the event the Frederick County Board of Supervisors grant said rezoning and accepts these conditions; the proffered conditions shall apply to the land rezoned in addition to other requirements set forth in the Frederick County Code. Respectfully submitted, PROPERTY OWNER Missionary Servants of the Most Holy Trinity By: (Signature) SIGNATURE ON NEXT PAGE (Print name) Jordan Baxter, S. T. Date: STATE OF MARYLAND, AT LARGE MONTGOMERY COUNTY, To -wit: The foregoing instrument was acknowledged before me this day of December 2001 by: My Commission expires: Notary Public: DEC -07-2001 13:19 TEI WINC P.03 REZONING REQUEST PROFFER Ljgrayga- Lariit `,mac allowed business sign to one sign. The sign shall be of monuTlent-type _:!-)j truCtlor, and liallte' to fifty (50) s:.ii:3rL f", t . 7 slz ct_' a p+aC.i!r , "�--r t, gents to k19 ; 2vvzralr tcs P.;ILA —1A no,, :'_t; s�.cLrr:+V-tr- a fi'nGing alone the parameter of the pond that services the 10.33 (+1-) acres. Th -,t cordttans prryf ored .ebove shall be bind;ng upcan the ileirs, executers, adniinish-awrs, �'^n in inwi-est of the A., hicant and Owner. In the eveni the FrederiCk of Supervisors grant said rezoning and accepts these conditions; the nrcff ^o'J "k, '.3:'y --I:` ' 7— "'f..ian to other rogt6rements set ;fie Frpderirk 'r_ruty ,r PROPERTY OWNER Mj,-Oviwoazy Sei.-rauiu of:. w Most Ha;y'J-.An;t+f t?: ;SiER�aiilre (Priv 'rim. STATE OF MARYLAND, A-1 JLA-R iE N. O TW M hKY COUNTY, Tu -wit: The foregoing instrument was acknowledged before nie this 11th day of December, 2001. — • - r. , ., i*✓iv i .mm�ZiSSi.CJ[i riCYiii.n: .3111 V 1 , Notwy Public: Revised 12/05/2001 per Frederick County S and Plannia(_wfircnssion i ununwus. l CTAL P.03