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HomeMy WebLinkAbout03-10 BZA Staff Report - March41c� coo APPEAL APPLICATION #03-10 BRAD POLLACK, APPLICANT Staff Report for the Board of Zoning Appeals w l� Prepared: March 5, 2010 Staff Contact: Mark R. Cheran, Zoning Administrator 1]JP 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: February 16, 2010 — Postponed by Applicant March 16, 2010 —Pending February 16, 2010 Summary: This appeal application was not heard by the Board of Zoning Appeals at their meeting on February 16, 2010. Mr. Cheran informed the Board at the beginning of their meeting that the applicant had requested this application be postponed until the March 16, 2010 meeting due to his illness. LOCATION: The subject property is located at 2032 Martinsburg Pike. MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 43-A-130 PROPERTY ZONING & USE: Zoning: Land Use ADJOINING PROPERTY ZONING & USE: North: RP (Residential Performance) East: RA (Rural Areas) South: RP (Residential Performance) West: RP (Residential Performance) RP (Residential Performance) District Public Utility Land Use: Residential Land Use: Vacant Land Use: Residential Land Use: Residential APPEAL: To appeal the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance in determining compliance and permitted uses in the RP (Residential Performance) Zoning District. Appeal Application #03-10, Brad Pollack, Applicant March 5, 2010 Page 2 REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to permitted uses in the RP (Residential Performance) Zoning District under Section 165-402.02 of the Frederick County Zoning Ordinance. STAFF COMMENTS: The applicant does not having standing to pursue an appeal to the Board of Zoning Appeals (BZA) regarding alleged zoning violations on the property located at 2060 Martinsburg Pike. The applicant's address on the appeal application and complaint lists his address at 148 N. Main Street, Woodstock, VA 22664. This location is approximately 35 miles from the subject property of this appeal. This applicant has no personal nexus with the subject property nor is he an adjoining property owner, or located within the viewshed of the subject property. As noted on the application of this appeal, the applicant is not acting on behalf of any person or corporation. The BZA is appointed by the Circuit Court as set forth and in accordance with the Code of Virginia 1950 as amended (Code), to hear and decide appeals from decisions of the Zoning Administrator. Furthermore, the Code requires that a person making an appeal of the Zoning Administrator's decision to the BZA must be a "person aggrieved". The Supreme Court of Virginia has held that an aggrieved person is a person that is eligible to petition the Circuit Court for review of a BZA decision. The Supreme Court held in Virginia Beach Beautification Commission v Board of Zoning Appeals, (Commission) 231 Va. 415, 419-20 (1986), that the Commission had no standing in the lower court, as the Commission had no ownership or occupied any real property within or in close proximity to the property at issue. Therefore, the Commission had no specific property interests to be damaged. The Court, in its ruling on a person aggrieved, was to allow localities some protection from overzealous appeals of decisions of a Zoning Administrator from citizens who do not have standing or property interest in those decisions. The BZA would have to hear appeals of the Zoning Administrator's decision from any citizen within the Commonwealth if the threshold of a person aggrieved was not adhered to. Based upon the holding in the above -referenced case, the applicant's appeal before the BZA has no indication of owning or any interest in property proximate to the property in question. As noted on the applicant's appeal application, the applicant is not acting on behalf of any person or corporation. Therefore, the applicant is not a "person aggrieved" and the appeal application is moot and cannot be heard. (Staff requested that the County Attorney review the case law regarding standing in this appeal; memo is included.) Section 165-402.02 of the Frederick County Zoning Ordinance provides for permitted land uses in the RP (Residential Performance) Zoning District. Subsection (B) of Section 165-402.02 states: Structures are to be erected or land use for one or more of the following uses - Number 6 of this sub- section states: Utilities necessary to serve residential uses, including poles, lines, distribution transformers, pipes and meters. The property subject to this appeal has been used as a utility use since 1986 and has an approved site plan. The site was modified in 1996 and 2008 with approved site plans. The property has been, and is currently, in conformance with the requirements of the Appeal Application #03-10, Brad Pollack, Applicant March 5, 2010 Page 3 Frederick County Zoning Ordinance. Past Zoning Administrators and the current Zoning Administrator have determined that utilities set forth by the Zoning Ordinance are permitted in all of its residential districts. STAFF CONCLUSIONS FOR THE MARCH 16 2010 MEETING: Staff is requesting that the BZA deny this appeal due to the applicant's lack of standing, or in the alternative, that the BZA affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Chapter 165, Section 165-402.02 that utilities are an allowed use in the RP (Residential Performance) Zoning District.