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Home My WebLink About06-07 ApplicationVARIANCE APPLICATION #06 -07 LORI ROBERTS Staff Report for the Board of Zoning Appeals Prepared: June 7, 2007 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: June 19, 2007 Action Pending LOCATION: 107 Gainesboro Road (Route 684) MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 29 -A -60 PROPERTY ZONING USE: Zoned: RA (Rural Areas) Land Use: Residential ADJOINING PROPERTY ZONING USE: North: RA (Rural Areas) Use: Residential South: RA (Rural Areas) Use: Vacant East: RA (Rural Areas) Use: State Road (Route 684) West: RA (Rural Areas) Use: Residential VARIANCE REQUESTED: The applicant is requesting a 20 foot rear yard variance, which would result in a 30 foot rear yard setback line. REASON FOR VARIANCE: The applicant constructed a dwelling four (4) feet over the rear setback of the property. Variance #06 -07, Lori Roberts June 7. 2007 Page 2 STAFF COMMENTS: This application is a variance to allow for a twenty (20) foot rear yard variance. This proposed variance would result in a thirty (30) foot rear setback. Section 165 -55 of the Frederick County Zoning Ordinance requires properties zoned RA (Rural Areas) to have setbacks of 60 feet front, and 50 feet sides and rear. On February 16, 2007, the applicant applied for a building permit #278 -2007) for a replacement dwelling. This new dwelling was to be placed in the same general foot print of the old dwelling with setbacks of: front 74 feet, right side 65 feet. left side 75 feet, and 56 feet rear. Section 165 -23 H of the Frederick County Zoning Ordinance requires survey standards to establish the location of primary structures located five (5) feet or Tess from the minimum setback requirement ofthe district in which the property is located. This building permit was not required to provide setback surveys as the dwelling was not within five (5) feet or less from the minimum setback requirenient of the zoning district. The applicant, during the construction phase, placed the rear of the dwelling 4.6 feet over the rear setback. On May 10, 2007, the Zoning Administrator received a complaint regarding the setback violation, and requested a stop work order from the Frederick County Building Official. On May 15, 2007, the property owner was contacted by Frederick County via telephone as to the setback violation and stop work order. The applicant applied for a variance after receiving the stop work order. Staff would note this application for a variance of twenty (20) feet to allow for a rear deck is far greater than the violation of four (4) feet of the rear setback. This application for a variance does not meet the requirements as set forth by The Code of Virginia 15.2 -2209 (2) (See below). The Code of Virginia 15.2 -2209 (2), states that no variance shall be granted unless the application can meet the following requirements: 1) The strict application of the Ordinance will produce an undue hardship. 2) The hardship is not generally shared by the properties in the same zoning district and vicinity. 3) That the authorization of such variance will not be a substantial detriment to the adjacent property and the character of the district will not be changed by the variance. Variance #06 -07, Lori Roberts June 7, 2007 Page 3 STAFF CONCLUSIONS FOR THE JUNE 19, 2007 MEETING: Staff would recommend denial of this variance application, this violation of the setback requirements set forth in Section 165 -55 of the Frederick County Zoning Ordinance, is self inflicted and does not produce an undue hardship as required by the Code of Virginia 15.2 -2309 (2). o rt ye el 29 A 113 ADAMS, CHARLES D 29 A 55 EATON, ELWOOD W. EVELYN 29 A 58 MCDONALD, BOYD R 30 A 16 EATON, BARRYA SR 30 A 45F COUNTY SCHOOL BOARD OF FREDERICK Frederick County, VA Location in the County Map Features O Hamlets 4 Future R137 Bypass Q Application O Airport O Lakes/Ponds Streams Streets Primary Secondary Tertiary S Urban DevelopmentArea SSW SWSA Map Document: (N:\Planning_And_Development1 1_ Locator_ MpslLoriRoberts _VAR0607_052907.mxd) 5/29/2007 10:04:56 AM Variance VAR 06 07 Application Lori Roberts Parcel ID: 29 A 60 Location in Surrounding Area 0 50 100 20Peet Case Planner: Mark Frederick County, VA Location in the County Map Features O Hamlets 0 41s Future Rt37 Bypass Application O Airport D lakes /Ponds Streams Streets Primary Secondary Terciary Urban Development Area SWSA Map Document: (N:1Planning_And_Development1 1_ Locator_ MpslLoriRoberts _VAR0607_052907.mxd) 5/29/2007 10:04:56 AM Variance VAR 06 07 Application Lori Roberts Parcel ID: 29 A 60 Location in Surrounding Area 0 50 100 20peet Case Planner: Mark Inty of Frederick, Virginia North Kent Street ichester, Virginia 22601 1 Agent: BUTLER, BEN 540- 662 -3486 112 SOUTH CAMERON STREE WINCHESTER, VA 22601 RTH 1ST FREDERICK PIKE PRESERVATION WEEMS LN JCHESTER, VA 22601 )NE: 540 -539 -8313 :ion: ling ccount 1: 5393 Number. 29 A 60 !ctions To Site: SIZE 32 E 77 SO FT F 1600 i wner I nfo rma tlotl 15? LED SITE PLAN REQUIRED 1 107 Gainesboro Road WINCHESTER VA 22603 De of Construction Locat on Health Permit li: Flootlplain: Area: WhltacrefCrDSS Junction, District: Sub Division: G AINES BO RO Zone: Rural Areas s/E Cup NO Site Plan. Use Group: Use Grpup "R &e5ideptial Use code: Single Family Oweli(ng Rt. 522N left on Gainesboro Road at the road side park make an immediate left on old Gravel Rd., oniylot on road, dead end. SETBACK SURVEYS REQUIRED Map Book 83 D -4 It STORIES 1 TOTAL it RM 7 GARAGE 932 S0. FT. NOTE NOTE 'eby agree to caoply with all provisions of the Virginia inn Statewide Building Code and the Ealing z Subdivision lances as adopted by the County of Frederick. Ereedan of Inf. Act plans can be secured opal request. Y SCANS REQUIRED YES ([u INITIAL Penult information: BUILDING PERMIT -iU ®ROOMS DECK Re pate J, L ,/J l/mod 7 ?�aj/t'� .Applicant (please Pr Intl i_� //1 YCS Appllcah (S r 4 j 7 c7 ATERO 2 soft sat FT FORCE Fres— OWNER Coast Type: t Replacement Natue of Work :enlacement dwelling sq. Peet: -9,600-1 b 2 2 Set•Backs: Front: 74 Back: Right: 65' Left: I HERMIT FEE: 'Surcharge TOTAL Permit Number: 0000278 2( USBC: 2003 Application Date: 2/16/2007 Issuance Date: Renewal Date: III \;i Date: 2/28/2007 PHONE: 000 000 0000 OB VALUE: Contractor lnfon`n1at10 Penult Cos 56' Center 75' Frontage: 150,000.00 FEES: 179.64 -rG9 9U.. May 10, 2007 Frederick County Inspections Department Attn: John Trenary Frederick County Building Official 107 North Kent Street Winchester, VA 22601 RE: Stop Work Order for Zoning Violations Dear John: This letter is to inform you that a building permit has been issued for a replacement dwelling (Permit 278 -07). This property is in violation of the Frederick County Zoning Ordinance in regards to setback requirements. 1 am requesting a Stop Work Order be issued for this permit to clear up this issue. Please contact me at (540) 665 -5651 regarding any questions that you may have. Sincerely, G ark R. Ch Zoning Administrator MRC/bhd 107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000 COUNTY of FREDERICK Department of Planning and Development 540/665 -5651 FAX: 540/ 665 -6395 Winchester, Va 22601 APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA Variance Application h]o. O( 0 "7 Submittal Date�1 /6 70 Fee Paid: Nes initials: Sign Deposit OFFICE USE ONLY- Submittal Deadline: For the meeting of MUST BE TYPED OR FILLED OUT IN INK PLEASE PRINT I. The applicant is the owner other X (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: Lori Roberts, Trustee NAME: ADDRESS 4 Weems Lane 207 ADDRESS: TELEPHONE: 540 539 -8313 TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): 107 Gainsboro RD. 522 N to rt 684 first house on left Frederick County ADC Map Book Map 12 C1 4. The property has a road frontage of 30 /b feet and a depth of X 73 25 feet and consists of 1.4201 acres (please be exact). 6 Lori Roberts, Trustee of the 5. The property is owned by North Frederick Pike Preservation Tr as evidenced by deed from Thomas Angela Tucker recorded (previous owner) in deed book no. 06 on page 23450 of the deed books of the Clerk of the Court for Frederick County. Please attach a copy of the recorded deed. 6. Magisterial District: Gainsboro 7. Property Identification No.: map 29A 60 8. The existing zoning of the property is; RA 9. The existing use of the property is: Residential: Single Family Home 10. Adjoining Property: USE North Residential East Residential South Residential West Route 522 Please see attachment Please see attachment 7 RA ZONING RA RA 11. Describe the variance sought in terms of distance and type. (For example: "A 3.5' rear yard variance for an attached two -car garage. 12. List specific reason(s) why the variance is being sought in terms of: exceptional narrowness, shallowness, size or shape of property, or exceptional topographic conditions or other extraordinary situation or condition of property, or the use or development of property immediately adjacent thereto Boyd McDonald A N. Frederick Pike. Winrhester.VA 7260 Property ID Map 29A 58 Ronald Alma Carter Address 131 Cainesboro Road, Winchester, VA 226 Property ID �C 63 Address Property ID Address Property ID Address Property ID Address Property ID Address Property ID 13. Additional comments, if any: Please see attachment 14. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the variance is being sought, including properties at the sides, rear and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notified by mail of this application: NAME 8 Please see attached 15. Provide a sketch of the property (you may use this page or attach engineer's drawing). Show proposed and/or existing structures on the property, including measurements to all property lines and to the nearest structure(s) on adjoining properties. Please include any other exhibits, drawings or photographs with this application. 9 11. Describe the variance sought in terms of distance and type: 20' Rear Yard Variance: 5' Variance for the Dwelling and 15' Variance for the deck. 12. List specific reason(s) why the variance is being sought in terms of: A. Due to the shallowness of the lot and the set back restraints of the road and BRL of the adiacent property, we were forced to place the house in close proximity to the BRL. B. The concrete labors poured the house footers and walls 3' beyond the pegs as a bonafide error. We did not realize this until the surveyor did a wall check to record a proper plat. 13. Additional Comments: Due to the planning and zoning BRLs not being listed on the plat, we tried to adhere to the current set back of 50'. The shallowness of the lot dictated the placement of the home in close proximity to the current set back rule of 50'. The footers and the basement were inspected and zoning was called on site to verify set backs; at which time the concrete contractor believed he was within the setback allowance and was told to proceed with pouring the basement. Unfortunately, this is an honest error on the part of a subcontractor. AGREEMENT VARIANCE 'U (Number to be assigned by the Planning Dept) I (we), the undersigned, do hereby respectfully make application, and petition the Frederick County Board of Zoning Appeals (BZA) to grant a variance to the terms of the Frederick County Zoning Ordinance as described herein. I agree to comply with any conditions for the variance required by the BZA. I authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I understand that the sign issued to me when this application is submitted must be placed at the front property line at Least seven (7) days prior to the BZA public hearing and maintained so as to be visible from the road or right -of -way until the hearing. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF APPLICANT ,,771(51e2._ DATE e"' 5:16-07 SIGNATURE OF OWNER APPROVAL (if other than applicant) OFFICE USE ONLY- BZA PUBLIC HEARING OF 6// q/07 ACTION: DAT SIGNEur-- DENIAL DATE: (o 1�76 10 DATE BZA CHAIRMAN Pu H .F U CHRISTOPHER FURSTENAU o. Fl 2727 Y( 0.11G 4ND sua\id DF i Pc Z D. v 70d7 O� CHRISTOPHER D. FURSTENAU, L.S. PC 133 WEST BOSCAWEN STREET SUITE 2 WINCHESTER, VIRGINIA 22601 540 542 -1164 FAX 540 542 -1183 SERVICES @CDFSURVEYS.COM MEMBER VIRGINIA ASSOCIATION OF SURVEYORS DATE: MAY 15, 2007 THIS IS TO CERTIFY THAT ON MAY 15, 2007 THAT I MADE AN ACCURATE SURVEY OF THE PREMISES SHOWN HEREON AND THAT THERE ARE NO EASEMENTS OR ENCROACHMENTS VISIBLE ON THE GROUND OTHER THAN THOSE SHOWN HEREON SCALE: 1 60' TAX MAP: 29 A 59,00 W.O. 07 00 0000 •OUNDATION LOCATION SURVEY LAND OF LORI ROBERTS, TRUSTEE NORTH FREDERICK PIKE PRESERVATION TRUST GAINESBORO DISTRICT FREDERICK COUNTY, VIRGINIA IPE FD. 1.4201 ACMES 5 4505'44 E 78.49' as NORTH FREDERICK PIKE WIDTH VARIES NO TITLE REPORT FURNISHED Fur w att l 2267 5 5555 2 POST POST GAINESBORO ROAD WIDTH VARIES CHRISTOPHER D. FURSTENAU, L.S. PC 133 WEST BOSCAWEN STREET SUITE 2 WINCHESTER, VIRGINIA 22601 540 542 -1164 FAX 540 542 -1183 SERVICESCCDFSURVEYS.COM MEMBER VIRGINIA ASSOCIATION OF SURVEYORS DATE: MAY 15, 2007 THIS IS TO CERTIFY THAT ON MAY 15, 2007 THAT I MADE AN ACCURATE SURVEY OF THE PREMISES SHOWN HEREON AND THAT ITHERE ARE NO EASEMENTS OR ENCROACHMENTS VISIBLE ON THE GROUND OTHER THAN THOSE SHOWN HEREON. 60' SCALE: 1 60 TAX MAP: 29 A 59,60 W.O. 07 00 0000 FOUNDATION LOCATION SURVEY LAND OF LORI ROBERTS, TRUSTEE NORTH FREDERICK PIKE PRESERVATION TRUST GAINESBORO DISTRICT FREDERICK COUNTY, VIRGINIA PIPE FD. r I� co N a fa 3 I i. 0 PI 1.4201 ACRES N s COI 1S 4' NORTH FREDERICK PIKE WIDTH VARIES o S 43 78.49' au NO TITLE REPORT FURNISHED anti? 08 3 •70101" os �e• 1 P. 27 7 42' IInLIN LINES S 53 .55 20 '0 POST Ory M i 0 M POST o1» cw GAINESBORO ROAD WIDTH VARIES Z CHRISTOPHER D. v FURSTENAU o. 2727 al IOW -1N SURNC( Page 1 of 4 THIS DI by and bet Wa CKER and ANGELA M. TUCKER, his wife; first part. hereinaft s called the Grantors, and LORI ROBERTS, Trustee FREDERICK PIKE PRESERVATION TRUST, a Virginia Land Trust under Code of Virginia, 1950, as amended, party of the second part, hereinafter called II' RECITALS: WHEREAS, by Deed dated December 15, 2006, by and Angela M. Tucker, his wife, as Grantors and North Frederick trust, and which Deed failed to name the Trustee of said Trust and which Deed is of record in E ti Clerk's Office of the Circuit Court of Frederick County, Virginia, as Instrument No. 06- 002345k and, ON made and dated as of the 15 day of WHEREAS, it is the desire of the parties to correct said Deed to provide for the Trustee of the North Frederick Pike Preservation Trust to acquire the title. NOW, THEREOFRE, in consideration of the benefits to accrue thereby and other good valuable consideration, receipt of which is hereby acknowledged, the Grantors do hereby grant and convey with general warranty and English Covenants of title unto Lori Roberts, Trustee of the North Frederick Pike Preservation Trust (Grantee), in fee simple absolute, all of the following described tract or parcel of land: All of that certain tract or parcel of land, lying and being situate in Gainesboro Magisterial District, Frederick County, Virginia, containing 1.4201 acres as shown on the plat of survey drawn by Christopher D. Furstenau, L.S., dated October 3, 2006, attached to Instrument in the Clerk's Office of the Circuit Court of Frederick County, Virginia, as No. 06- 0021940, and which is by this reference made a part hereof as if set out in full; AND BEING the same land conveyed to Thomas W. Tucker and Angela M. Tucker, his wife, by Instrument Nos. of record in the aforesaid Clerk's Office, as follows: 05- 0028149, 05- 0028150, 06- 0017141, and 06- 0017142. Page 2 of 4 0 0 CO 01 The Trustee of the North Frederick Pike Preservation Trust joins in the execution of is Deed to acknowledge correction of the aforesaid Deed as set forth in the recitals hereinabove set forth. Full power and authority is hereby granted to the Trustees and their successors to protect and conserve the Property; to sell, contract to sell and grant options to purchase the Property and any right, title or interest therein on any terms; to exchange the Property or any part thereof for any other real or personal property upon any terms; to convey the Property by Deed or other convt Convey to any grantee, with or without consideration; to mortgage, execute a Deed of Trust on, pledge or otherwise encumber the Property or any part thereof; to lease, contract to lease, grant options to lease and renew, extend, amend and otherwise modify leases on the Property or any part thereof from time to time, for any period of time, for any rental and upon any other terms and conditions; and to release, convey or assign any other right, title or interest whatsoever in the Property or any part thereof. No party dealing with the Trustees in relation to the Property in any manner whatsoever, and (without limiting the foregoing) no party to whom the Property or any part thereof or any interest therein shall be conveyed, contracted to be sole, leased or mortgaged by the trustees, shall be obliged (a) to see to the application of any purchase money, rent or money borrowed or otherwise advanced on the Property, (b) to see that the terms of the trust have been complied with (c) inquire into the authority, necessity or expediency of any act of Trustees, or (d) be privileged to inquire into any of the terms of the Trust Agreement creating said trust. Every Deed, mortgage, lease or other instrument executed by the Trustees in relation to the Property shall be conclusive evidence in favor of every person claiming any right, title or interest thereunder; (e) that at the time of the delivery thereof the said trust was in full force and effect, (f) that such instrument was executed in accordance with the trust, terms and conditions thereof as it may have been amended from time to time and of the said Trust Agreement and is binding upon all beneficiaries thereunder, L (SEAL) 0 0 0 Cn (g) that the Trustees were dully authorized and empowered to execute and deliver every such instrument, and (h) if a conveyance has been made to a successor to successors in trust, that such successor or successors have been properly appointed and are fully vested with I all the title, estate, rights, powers, duties and obligations of its, his or their predecessor in trust. The Trustees shall have no individual liability or obligation whatsoever arising from Trustees' ownership as Trustees of the legal title to the Property, or with respect to any act done or contract entered into or indebtedness incurred by said Trustees in dealing with said Property or in otherwise acting as Trustees, except only so far as said Property and any trust funds in the actual possession of the Trustees shall be applicable to the payment and discharge thereof. The interest of every beneficiary under the Trust Agreement and of all persons claiming under any of them shall be only in the earnings, avails, and proceeds arising from the rental, sale or other disposition of the Property. Such interest is hereby declared to be personal property, and no beneficiary hereunder shall nave any right, title, or interest, legal or equitable, in or to the Property, as such, but only in the earnings, avails and proceeds thereof as provided in the Trust Agreement. This Deed is govemed by and is to be read and construed with reference to Section 55 -17.1 of the Code of Virginia, 1950, as amended, and in force. This conveyance is made subject to all easements, conditions and restrictions of record insofar as they lawfully affect the Property. WITNESS the following signatures and seals. THOMAS W. TUCKER (-J ANGEL AJM.TUCKER NORTH FREDERICK PIKE PRESERVATION TRUST By. O/« 77/119P L oberts, 'trustee Page 3 of 4 (SEAL) OF VIRGINIA CITY OF WINCHESTER, TO -WIT I, 710,7` a Notary Public in and for the State and jurisdiction oresaid, do hereby certify that Thomas W. Tucker and Angela M. Tucker, his wife. whose names are signed to the foregoing DEED OF CORRECTION dated the 15th day of December, 2006, have personally appeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand this/! day of -74 .i.u 2007. My Commission expires l, o10// 12582 N Fred Pike A: \Deed of Correction.doc My Commission expires 3/ q 7() NOTA "UBLIC 0 0 CO J STATE OF VIRGINIA CITY OF WINCHESTER, TO -WIT 1, I dg.61.1 =RITE QUEIHAY a Notary Public in and for the State and jurisdiction aforesaid, do herelsertify that Lori Roberts, Trustee of the North Frederick Pike Preservation Trust, whose name is signed to the foregoing DEED OF CORRECTION dated the 15th day of December, 2006, has personally appeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand thiso? —t day of „kb, 2007. 1 f;xm 2b V z 0 4 a~