Loading...
HomeMy WebLinkAbout02-15 BZA Staff Report VARIANCE APPLICATION #02-15 PHILIP SMITH Staff Report for the Board of Zoning Appeals Prepared: July 9, 2015 Staff Contact: Mark 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: July 21, 2015 Public Hearing Action Pending LOCATION: The property is located at 122 Cherry Hill Circle. MAGISTERIAL DISTRICT: Redbud PROPERTY ID NUMBER: 54C-2-4-42B PROPERTY ZONING & USE: Zoned: RP Land Use: Residential ADJOINING PROPERTY ZONING & USE: North: RP (Residential Performance) Use: Residential South: RP (Residential Performance) Use: Residential East: RP (Residential Performance) Use: Residential West: RP (Residential Performance) Use: Residential VARIANCE REQUESTED: The applicant is requesting a 7 foot left side yard variance to a required 10 foot left side setback resulting in a 3 foot left side setback. REASON FOR VARIANCE: To accommodate addition to an existing dwelling. The addition was built over left side setback, without a building permit. Variance #02-15 – Philip Smith Page 2 July 9, 2015 STAFF COMMENTS: The applicant applied for a building permit in July 2014 to construct an addition and was required to provide a setback survey. A setback survey dated August 24, 2014 was provided to the County which showed that the addition was in violation of the setbacks, yet the applicant continued to construct the addition without a building permit. In accordance with Section 165-101.07A of the Frederick County Zoning Ordinance, all structures shall meet the requirements set forth in the Frederick County Zoning Ordinance and be in compliance with the current Building Code. Therefore, the addition to this structure constitutes a violation of Section 165-101.07A of the Frederick County Zoning Ordinance. Staff cited the applicant for constructing an addition without a building permit by certified letter on September 23, 2014 and another letter was sent on March 11, 2015. A criminal complaint was filed on May 11, 2015. The setbacks for this dwelling on building permit #1209-2014 were: front: attached, right 50 feet, left 10+ feet, and 43 feet rear. Section 165-201.02 H of the Frederick County Zoning Ordinance requires survey standards to establish the location of primary structures located five (5) feet or less from the minimum setback requirement of the zoning district in which the property is located. The setback survey revealed a seven (7) foot encroachment into the left side yard setback. The property is zoned RP (Residential Performance) and has a lot square footage of 9,172 sq. ft., with a single-family dwelling built in the1960’s prior to Frederick County adopting zoning. The recorded plat for the Green Acres Subdivision Section 4 has a 20 foot front setback on the properties, and delineated no side or rear setbacks. The property is vested with the front setback of 20 feet. Frederick County adopted zoning in 1967, the Frederick County historical zoning map shows this property zoned R-2 (Residential, Limited). The property setback lines at the adoption of the zoning ordinance were 35 feet for the front and 15 feet for the side yards and 25 feet rear. Frederick County amended its Ordinance in 1989 and changed the R -2 Zoning District to the current RP (Residential Performance) Zoning District. Frederick County Zoning Ordinance allows for lots in the RP Zoning District to range in size from 100,000 sq. ft. to 3,000 sq. ft. Section 165-402.09 C of the Frederick County Zoning Ordinance, requires setbacks of this housing type to be: 35 feet front, 10 feet sides, and 25 feet rear. Therefore, the setbacks for this property are: 20 feet front, 10 feet sides and 25 feet to the rear. The original dwelling appears to be in compliance; the illegal addition does not comply with setbacks. This application for a variance does not meet the requirements as set forth by The Code of Virginia 15.2-2209 (2), and the Frederick County Zoning Ordinance. The setback requirements of the RP Zoning District do not produce an unreasonable restriction on the property. The applicant should have applied for a building permit that would ultimately require an application for a variance. Therefore, staff would recommend denial of this variance application, as the violation of the setback requirements was self-inflicted. Variance #02-15 – Philip Smith Page 3 July 9, 2015 STAFF CONCLUSIONS FOR THE JULY 21, 2015 MEETING: The applicant is seeking a 7 foot left side yard variance. Should this variance be granted, the building setbacks for this property would be 20 feet in the front, 25 feet in the back, 10 feet right side, and would change to 3 feet on the left side. It appears that this variance does not meet the intent of the Code of Virginia, Section 15.2- 2309 (2). This request from the current setbacks of the RP Zoning District may not be justified. Staff would recommend denial of this variance application, as the violation of the setback requirements was self-inflicted. The strict application of the Frederick County Zoning Ordinance did not produce an unreasonable restriction on the property as required by the Code of Virginia 15.2- 2309 (2). The Code of Virginia 15.2-2309 (2), states that no variance shall be granted unless the application can meet the following requirements: 1) The property interest for which the variance is being requested was acquired in good faith. 2) The granting of the variance will not be a substantial detriment to adjoining property or nearby properties in the proximity of that geographical area. 3) The condition or situation of the property concerned is not of so general or recurring as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance. 4) The granting of the variance does not result in a use that is otherwise permitted on such property or a change in the zoning classification of the property. 5) The relief or remedy sought by the variance is not available through a special exception or the process for modification of a zoning ordinance.