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HomeMy WebLinkAbout02-09 BZA Staff Report - NovemberAPPEAL APPLICATION #02-09 ROYSTON ESHELMAN PROPERTIES, LC �- Staff Report for the Board of Zoning Appeals w Prepared: November 4, 2009 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 17, 2009 - Pending LOCATION: The subject property is located at 3700 Stonewall Jackson Highway (Route 277) near the intersection with Front Royal Pike (Route 522 South). MAGISTERIAL DISTRICT: Opequon PROPERTY ID NUMBERN: 87-3-B and 87-3-B1 PROPERTY ZONING & USE: Zoning: RA (Rural Areas) District Land Use: Illegal Outdoor Commercial Activities ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) East: State Route 522 South: RA (Rural Areas) West: RA (Rural Areas) Land Use: Residential Land Use: State Highway Land Use: Residential Land Use: Vacant 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 RA District. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to undocumented structures under Section 165-101.07 Compliance required; required permits, and the presence of commercial activities, under Section 165-401.02 Permitted uses. Appeal Application #02-09, Royston Eshelman Properties, LC November 4, 2009 Page 2 STAFF COMMENTS: Section 165-401.02 of the Zoning Ordinance provides for permitted land uses in the RA Zoning District. Outdoor commercial activities, i.e., flea markets, are not included as a permitted use in the RA Zoning District. The applicant was cited under the above -referenced section of the Frederick County Zoning Ordinance for operating a business not permitted in the RA (Rural Areas) Zoning District as well as under Section 165-101.07, for constructing structures without approved building permits. The applicant concedes that the term "flea market' is not defined in the Zoning Ordinance as a permitted use in the RA Zoning District. However, the applicant contends that any definition not specifically listed within the definitions of the Zoning Ordinance will be determined by the most recent edition of Merriam -Webster's Dictionary. The Merriam -Webster's Dictionary describes a flea market as: "open air marketfor second hand articles and antiques." The applicant believes that a flea market is an umbrella concept that includes several different vendors selling a variety of goods, i.e., antiques, wayside stands, and grocery items, to the public and that it mirrors Frederick County's definition of a country store, which is an allowed use in the RA Zoning District with an approved Conditional Use Permit (CUP). Therefore, the applicant believes that the Zoning Administrator's interpretation of Section 165- 401.02 of the Zoning Ordinance is incorrect as the interpretation does not take into account that the activities occurring on this property would be permitted with an approved Conditional Use Permit in the RA Zoning District. STAFF CONCLUSIONS FOR THE NOVEMBER 17, 2009 MEETING: Section 165-401.02 of the Zoning Ordinance provides for permitted uses in the County's RA Zoning District. Flea markets are not listed within this section of the ordinance and are not a permitted use. The term flea market does not appear anywhere in the Frederick Zoning Ordinance. The applicant contends that the uses occurring at this flea market mirror a county store, and would be allowed with a Conditional Use Permit as an avenue to resolve this violation and allow this use to occur. A Conditional Use Permit (CUP) is a land use action approved by the Board of Supervisors, and allows for a variety of uses within the County's zoning districts. An application for a CUP is granted only for the allowed uses in a specific zoning district. A CUP applies to only one use on a particular property, not multi -uses or uses that are not listed. Therefore, Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Chapter 165, Section 165-101.07 and Section 165-401.02, undocumented structures and the presence of commercial activities as an allowed use in the RA zoning district. The use shall be discontinued and the illegal structures removed.