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Home My WebLink About12-07 ApplicationVARIANCE APPLICATION #12 -07 EAGLE PLACE IND., INC. Staff Report for the Board of Zoning Appeals Prepared: August 30, 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 September 18, 2007 Action Pending LOCATION: 1160 Purcell Lane (Route 721) MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 53A -A -109 PROPERTY ZONING USE: Zoned: RP (Residential Performance) District 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 14 foot rear yard variance, resulting in a rear yard setback of 11 feet, for the construction of a wooden deck. REASON FOR VARIANCE: The applicant built a deck without a building permit over the rear setback. Variance #12 -07, Eagle Place Ind., Inc. August 30, 2007 Page 2 This application was postponed from the meeting of August 21, 2007 at the request of the applicant. STAFF COMMENTS: The Frederick County Building Department received a complaint on May 29, 2007, reporting a deck built on this property. The deck was failed because a building permit was not applied for. The applicant applied for a building permit for a deck on July 7, 2007, but was not issued the permit due to a rear setback violation. The applicant applied for a building permit #2102) for a single family dwelling with no deck on the permit on property that is zoned RP (Residential Performance). The minimum building setbacks within the RP Zoning District are front 35 feet, sides 10 feet and rear 25 feet. The applicant's building permit had building setbacks of front 38 feet, sides 10.5 feet and rear 26 feet. The applicant was required to submit a house location survey, as required by the zoning ordinance for any primary structure located five (5) feet or less from any minimum setback. The setback survey placed the single family dwelling at 25.3 feet at the rear BRL as shown. The applicant has applied for a 14 foot variance that, if approved, will result in a rear setback of 11 feet. to allow for this deck. (See attachments) STAFF CONCLUSIONS FOR THE SEPTEMBER 18, 2007 MEETING: 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. 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 and staff would recommend denial of this variance application. The strict application of the Frederick County Zoning Ordinance does not produce an undue hardship as required by the Code of Virginia. This violation of the setback requirements was self inflicted, as the deck was constructed without a building permit. R #12 -07 rir on Aerial Location in the County Map Features O Hamlets '•M. Future Rt37 Bypass Application 13 Lakes /Ponds Streams Streets Primary *Nt. Secondary Terciary Urban Development Area SWSA Map Document: (N: \Planning_And_Development\ 1_ Locator_ Mps\ EaglePlacelndlnc _VAR1207_072307.mxd) 713/2007 9:11:40AM Frederick County, VA Location in Surrounding Area 0 25 50 Case Planner: Mike Variance VAR 12 07 Application Eagle Place Ind., Inc. Parcel ID: 53A -A -109 1 ;Peet Land a e ace rrt10. Frederick County, VA Location in the County Map Features o Hamlets +Ns Future Rt37 Bypass III Application Lakes/Ponds Streams Buildings Streets Primary e■e. Secondary Terciary (Ea 'Z$ Urban Development Area SWSA Map Document: (NAPlanning And_Development1 1_Locator_MpsEaglePlacelndInc_VAR1207_072307.nnxd) 7/Z3/2007 9:11:40 AM Variance VAR 12 07 Application Eagle Place Ind., Inc. Parcel ID: 53A A 109 g Range Land Use Rural Community Center Residential Business Industrial Institutional Recreation Historic Mixed-Use Planned Unit Development Location in Surrounding Area 0 25 50 1 21 Case Planner: Lauren 10peet R #12 -07 c WM. OW WM Zoning M, STAR FORT Frederick County, VA Location in the County Map Features O Hamlets 4 Future Rt37 Bypass Application LS Lakes/Ponds Streams ale Buildings Streets Primary ti Secondary Map Document: (N: \Planning And Development\ 1_Locator Mps \EaglePlacelndInc VAR1207_072307.mxd) 712 9:11:40AM Variance VAR 12 07 Application Eagle Place Ind., Inc. Parcel ID: 53A A 109 Zoning f: B1 (Business, Neighborhood District) B2 (Business, General District) O D B3 (Business, Industrial Transition District) ale EM (Extractive Manufacturing District) alb HE (Higher Education District) OD M1 (Industrial, Light District) M2 (Industrial, General District) MH1 (Mobile Home Community District) Tertiary r MS (Medical Support District) :11 Urban Development Area ®m R4 (Residential, Planned Community District E. R5 (Residential Recreational Community Dis RAZ (Rural Area Zone) RP (Residential Performance District) AB SWSA Location in Surrounding Area 0 25 50 Case Planner: Lauren 10ileet MR 12 07 Locator 53A A 73 YMONS, DEXTER 1NNYSIDE 53A A 74 KELCHNER, LINDA P 53A A 80A HENKEL, LESLIE GAYB HOOVER BARB qRA H 53A A 76 MERRILL, NALDA B GEORGE L JR 53 PRIESTER, BREN TAMMY L LPUCK LO VEACH, PHIL E W A DA GAI 53 MILLER, MITCHELL W'& ERICAE STAR FORX Location in the Count Map Features O Hamlets 4 1 1,+ Future Rt37 Bypass is Application Cs Lakes /Ponds Streams s Buildings Streets Primary Secondary Tertiary .4f Urban Development Area SWSA Map Document: (N:1Planning_And_Development1 1_Locator_Mps\EaglePlacelndlnc VAR12O7_0723O7.mxd) 7/23/2007 9:11:40 AM Frederick County, VA Variance VAR 12 07 Application Eagle Place Ind., Inc. Parcel ID: 53A -A -109 Location in Surrounding Area 0 25 50 Case Planner: Lauren 1 Feet co 0 0 CD 0 CA •w #k E �2222 z o �fp cie D. 2 ce a k cu '5 N c3 su CD w -e4c 4 t CD W 7 C 0 5 0 0 CNI CD Pri 0 ID IN De 0 R CD 9 Ln 0- 0. c 0 cn 0 9 0 -1 0 Ln rri rri rzi co cri 0 cZ Hey c 0 a VI C g N ra Ln to L- o to L. 4 2f 0) s. LL §W og 1. c N c 0 r co 0 0 CA 0C•1 CO k# kk E 0000 2 %s `2 3_ 0. 0. con C kƒ ce J 0 CO o to f En Page 5 of 9 APPLICATION FOR VARIANCE it "2 IN THE COUNTY OF FREDERICK, VIRGINIA MUST BE TYPED OR FILLED OUT IN INK PLEASE PRINT I. The applicant is the owner V other (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: E4 k Plaep. <bat ...rhic NAIME: ADDRESS P.. 0 O2c, (c) ADDRESS: 't+-..c.t, 60-1 TELEPHONE: Co 62, 0 ct TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): Le4ie, FO:u.ekes h 6 Nti\ trfry, petix ify ft., or ovaa 3-2,1 ki Lffrik..Z k e skpalsit_a_cc) 4. The property has a road frontage of C0 feet and a depth of 90 feet and consists of acres (please be exact). S3'a0 5eb )677 1 5. Theproperty is owned by o eE q i Wt. by deed from 1GS as ev y �z i �e-o. recorded (previous owner) in deed book no.6 c6 `i4'i9on page t i z of the deed boob of the Clerk of the Court for Frederick County. Please attach a copy of the recorded deed. 6. Magisterial District: 10. Adjoining property: North R c.1c2N East ,c South West ti �i. fpt-C_ 4- 2eit.° Page 6 of 9 7. Property Identification No.: 5-3 8. The existing zoning of the property e=� 9. The existing use of the property is :_a SK' l CAP) If it u 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. rc 4 12. List specific reason(s) why the variance is being sought in terms of: exceptional narrowness, shallowness, size or shape ofproperty, or exceptional topographic conditions or other extraordinary situation or condition of property, or the use or developme o property immediately adjacent ther s -14-..s c,\__ Rave seQ_. ale 1 Sgtegi 13. Additional comments, if any: ID )p 11/3xe t® 4a4 C p% _e c� 40 CJte i duo6(a k�1 t kQ. Nbest ce Nc;(\ be) A -kcal °I- 't Z 184- e ke I deisaK S, z 1 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 E/txt k P I r4 ticS Address PO Dart (sedo to Property m s 4- /o.0 RIct i f iA d2 R 3 Ci L Address co' ftaee(1 ra is1O€ J PropertyID# S3�- 4 /11 /J1 /in R.gy /none, ,J.v Address /D t3 fc”empit-) /N, We. V� Property lD 5-3/9 r fi Geo?e Address /l 7 ,ic CPute ad/ 14. Property ID S 34 4 Address (G Property ID Address Property ID Address Property ID Address Property ID Page 7 of 9 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. Page 8 of 9 835'± TO INTX. RTE. 522 IRF LEGEND: WM WATER METER CO SANITARY CLEAN OUT FFE FINISHED FLOOR ELEV. GFE GARAGE FLOOR ELEV. WPP WOODEN POWER POLE WP WOOD POST IRF IRON ROD FOUND IRS IRON ROD SET .(494.5) EXISTING SPOT ELEVATION 495 EXISTING CONTOUR NOTES: 1. NO TITLE REPORT FURNISHED. 2. EASEMENTS MAY EXIST THAT ARE NOT SHOWN ON THIS PLAT. 3. NO STREET ADDRESS POSTED AT TIME OF SURVEY. DATE: 1 1129/2006 SANITARY NH ,-Ex SANITARY PURCELL LANE VA. SEC. RTE. 721 (Variable Width Ft/W) 5, i h C rIS N 30 °35'00" E 60.00' 3 1 I o I BRICK 9 °prl a STOOP 13z` v CO L35 BRL k" io 5• o FRAME SPLIT FOYER DWELLING co WITH BRICK FACADE F.F.E. 08.09) G.F.E. (497.76) 10.4' 1 392' IRF S 30 °35'00" W 60.00' SCALE: 1 =20' 39.1 rn W co ID 0 PIN 5YA -A -118 N/F DAVIS 0B 959 PG 950 H 25' BRL G (TYP:) 1 •t?/ PIN 53 r -A -109 beck_ Iy D 4 9 5 -,,t- OO SQ. FT. b' W -1/7 0 H UTIL Y LINE WPP IRS HOUSE LOCATION AS -BUILT TOPOGRAPHIC SURVEY OF THE LAND OF EAGLE PLACE INDUSTRIES, INC. INSTRUMENT NO. 060014375 STONEWALL MAGISTERIAL DISTRICT FREDERICK COUNTY, VIRGINIA SHEET 1 OF 1 vg 497 IRF Marsh Legge Land Surveyors, P.L.C. 560 NORTH LOUDOUN STREET WINCHESTER, VIRGINIA 22601 PHONE (540)667 -0468 FAX (540) 667.0469 EMAIL office @marshandlegge.com //0 /Z�/( FLOOD NOTE: ZONE: C COMMUNITY NO 510063 PANEL: 0105 B DATE: 7/17/1978 SURVEYOR'S CERTIFICATE I HEREBY CERTIFY THAT THE INFORMATION SHOWN ON THIS PLAT IS BASED ON AN ACTUAL FIELD SURVEY MADE UNDER MY SUPERVISION ON NOVEMBER 28, 2006 AND THAT TO THE BEST OF MY KNOWLEDGE AND BELIEF THERE ARE NO ENCROACHMENTS OR VISIBLE EASEMENTS UNLESS SHOWN. Marsh (N. 001843 2 /o�D SU �E J DRAWN BY: CAJ DWG NAME: 107826 -HLS -109 SIGNATURE DATE -2- DENIAL AGREEMENT VARIANCE /02-09 (Number to be assigned by the Plarvung 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. CANT (if other than applicant) -OFFICE USE ONLY- DATE: Page9of 9 ACTION: DATE 2/3/09 SCALE l 20 SHEET.' 2 OF 2 DATE 1/3/07 `f Mars_ Legge LanSurveyors, P.L.C. y1. 560 NORTH LOUDOUN STREET WINCHESTER. VIRGINIA 22601 PHONE (540) 667 -0468 FAX (540) 567 -046 EMAIL office9norshondlegge.com DRAWN BY: MBB DWG NAME: 7985 -BLA PLAT BOUNDARY LINE ADJUSTMENT BETWEEN THE LANDS OF NORMAN L. NANCY L. TfS/NGER DEED BOOK 963 PAGE 728 STONEWALL ERICK V7RGl DISTRICT /RF /RS IRS EX. PROP. LINE HEREBY VACATED ASPHALT DRIVEWAY CONCRETE BASEMENT ENT. 53A -A -109 EAGLE PLACE INDUSTRIES, INC. INST. 0060014375 ZONED RP USE: RES /DEN77AL S 5925'00" E 90.00' I N co 10" BRL _o o— r I I Q Q co I 1 1m N1 h IN 1 53A -A -108 1 5,119 SO.FT (ORIGINAL) 5,404 SO.FL (ADJUSTED) ZONED: RP USE: RESIDENTIAL 70' BRL J (PROP. LINE HEREBY CREATED) 5 5925'00" 90.14' 10 BRL 53A -A 10 7 5814 SO. FT (ORIGINAL) 5,529 SOFT (ADJUSTED) ZONED: RP USE RESIOEN DAL Im IN 110' BRL 30.5' 2 5 LEGEND IRE IRON ROD FOUND IRS IRON ROD SET r N 5828'18" W 90.30' EX. PROP. LINE HEREBY VACATED 53- A -104 GEORGE N. MARY JANE CARTER INST. 003001152 PLAT DB 799 PG 7392 ZONED: RP USE: RESIDENTIAL 20 '0 WOODEN FENCE POINT ON ROCK SCALE 20' 7 /NCH 20 FEET 40' CURTIS W. MAY, ET DX 1E2 TO DEED ;CECIL C. AFFLECK 7 **Rill! THIS DEED made and dated this 24th day of October, 1958, by kand between Curtis W. May and Sue V. May, his wife, parties of the first part; and Cecil C. Affleck, party of the second part. i 4 WITNESSETH: That for and in consideration of the sum of 510.00 and other good and valuable consideration, the receipt of all of which is hereby acknowledged, the said parties of the first part do hereby grant and convey, general warranty of title, unto the said party of the second part, in fee simple, 5'18.11 of that certain lot of land, together with the improvements thereon and the l appurtenances thereunto belonging, lying and being situate about 1 mile north of 'Winchester in Stonewall Magisterial District, Frederick County, Virginia, containing 1,9,952 square feet, more particularly described by that certain plat and survey dated ,October 20, 1958, prepared by Lee A. Ebert, C.L.S., hereto attached and by this re- ference made a part of this deed, being the same property conveyed to the said par- ties of the first part by deed of Jackson DeHaven, et ux, dated January 22, 1955, •of record in the Clerk's Office of the Circuit Court of Frederick County, Virginia in Deed Book 235, page 24, to which deed and the references therein, reference is made for a further description of the said property. The said parties of the first part covenant that they have the right to convey the said property; that the said property is free of any encum- brances; that the said party of the second part shall enjoy quiet possession to the said property and the said parties of the first part will execute such further assur- !ances of title as may be requisite. Witness the following signatures and seals this date first 'above written. 1********************* CURTIS W. MAY (SEAL)' 'REVENUE STAMPS $7.70 SUE V. MAY (SEAL) CANCELLED 'State of Virginia County of Frederick, to -wit: I, Eula Shipe, a Notary Public in and for the County of Frederick, State of Virginia, do hereby certify that Curtis W. May and Sue V. May, his wife, whose names are signed to the foregoing writing bearing date the 24th day of October, 1958, have personally appeared before me and acknowledged the same in my County and State aforesaid. My commission expires October 19, 1960. Given under my hand this 24th day of October, 1958. EULA SHIFE Notary Public I OLD ROADWAY RT. 7 LINE LOTS S 53 1 I N S 800.4 788' PT eEC. m -1- 7- CO N 4 J 2 0 zz iW FRONTING RUR OELL e DRIVE os• t 522 12 R_ O CERTVIEO CORRECT F! LEE A EPERT C.L4. 0 r 0 0 J C 0. Se The above Plat is a Survey of the Curtis W. May Lot. The said Improved Lot fronts the western line of a 12 Ft. Right -of -Way (Foreman Drive) extending northwardly from the North Frederick Grade -U. S. #522, at Sunnyside, in Stonewall District, Frederick County, Virginia. Beginning at an iron pin at the southwestern corner of the Lot, a corner to the Frye Lot, which pin is located by measuring 788 ft. northeastwardly along the original Patton Stotler Line from a point in the northern line of the Old Roadway (Old Rt. #7), also by measuring 800.4 Ft. northeastwardly along the said line from a point in the northern line of the North Frederick Grade U. 5. #522, running with a line of the Lots fronting Purcell Drive N 32 04' E 322 ft. to an iron pin in a line of the Price Lot; thence with the said line 5 53 27' E 11 ft. to an iron pin in the western line of the 12 Ft. Right -of -Way; thence with the said line S 24 58' W 324 £t. to a stake corner to the said Frye Lot; thence with a line of the said Lot N 57° 30' W 51 ft. to the beginning. Containing 9,952 Sq. Ft. TFF A. EBERT Surveyed October 20, 1958. Uertii ied Land Surveyor, Comm. of Virginia 484. VIRGINIA FREDERICK COUNTY, (SCT. This instrument of writing was produced to me on the 24th day of October 1958 at 1:55 P. M. and with certificate of acknowledgment thereto annexed was admitted to record. ,CLERK I'D \IRS O OH g6o re) Fn 0 Ago Z 00 a 0.7 cv. o o W TM 53A —A -98 DRIVEWAY EASEMENT FOR THE BENEFIT OF TM 53A -A -98 99 HEREBY DEDIC' 1 NO TITLE REPORT FURNISHED N/F DICK S 30'01'38" m I r) 0 HOUSE LOCATION SURVEY LAND OF CHARLES 0. DENNY WILL BOOK 80 PAGE 543 STONEWALL DISTRICT FREDERICK COUNTY, VIRGINIA 3,502 SQ. FT. co o z 1 STORY FRAME 1112 28.3' N N 30'35'09" E 40.00 PURCELL LANE 30' RAN THIS LOT 15 LOCATED 111 HUD FLOOD ZONE C, AREA OF MINIMAL' FLOODING AS SCALED FROM FIRM MAP 510063 0105 B EFFECTIVE JULY 17, 1978 TRITON DB 791 P. 1383 W 40.00' IRS 0 rn 262.5' TO N. FREDERICK PIZ. IRS CHRISTOPHER D. FURSTENAU, L.S. PC 133 WEST BOSCAWEN STREET SUITE 2 WINCHESTER, VIRGINIA 22601 540 542 -1164 FAX 540542 -1183 SERVICES@CDFSURVEYS.COM MEMBER VIRGINIA ASSOCIATION OF SURVEYORS DATE: SEPT. 25, 2006 SCALE: 1 20' THIS IS TO CERTIFY THAT ON SEPTEMBER 25, 2008 THAT I MADE .4N ACCURATE SURVEY 01' THE PREMISES TAX MAP: 53A -A -9R SHOWN HEREON AND THAT THRRA' AAR HOUSE LOCATION SURVEY FURSTENAU SURVEYING III SOUTH LOUDOUN STREET WINCHESTER, VIRGINIA (540) 662 -9323 DATE: APRIL 17, 2002 SCALE: r 15' 10x map 53A -A -97 DEED REF. BB. 836 P. 1157 THIS IS TO CERTIFY THAT ON APRIL 17, 2 THAT I MADE AN ACCURATE SURVEY OF THE P SES SHOWN HEREON AND THAT THERE ARE NO EASEMENTS OR ENCROACHMENTS' VISIBLE ON THE GROUND OTHER THAN THOSE SHOWN HEREON. D n TRITON 791/1383 17R "W d�__,ev1s 5.6' 10.6 PORCH 29.5 1 1/2 story frame 01108 3,518+ DECK 12.9' N 30°35 "E 40.00' PURCELL LANE (30' WIDE Ia GRAVEL PH• r) t o- 1I V Ab DRIVEWAY STINE n a] OJ 0 0 N 0 N Z Wa 222' f to North Fr.d.rkk P&. THIS LOT IS LOCATED IN FLOOD ZONE C, AREA OF MINIMAL FLOODING AS SHOWN ON FIRM MAP 0 510063 0105 H EFFECTIVE JULY 17, 1978 LRNO OF T. P. FIND SUSRN M. G00DMflN STONEWALL DISTRICT FREDERICK COUNTY. VIRGINIR 2. I NITRO IRF Iran Rod Found 0 CERTIFICATE ND. CE R� 9 0� LAND SURVEYOR DATE: JUNE 29. 1993 SCALE: 1 =20' SURVEY DATE: JUNE 17. 1993 L The lot represented by this plot was conveyed to Fronk V. Sherwood. Jr. and Beverly J. Sherwood. his wife, by deed doted 25 May 1990 and recorded onving the land records of Frederick County. Virginlo in Deed gook 745 of Page 736. 2. NO title report furnished. 3. this lot does not re within c H.U.U. designated IW yeor flood zone. BK7991'61392 e �A SURVEYOR'S CERTIFICATE 1 hereby certify that the information shown on this p lat Is based on s a octuol field survey mode under sisi supervision and there cot no ewer ochrnents or ble easements unless shown. Douglas C. Legge, L.S. BUILDING LOCATION SURVEY of PREMISES LOCH TED AT 1144 PURCELL DRIVE STONEWALL MAGISTERIAL DISTRICT FREDERICK COUNTY, VIRGINIA I'A-0 ode Renwl0r Mre rrwouwur9. v gha (103) a96-2115 VIRGINIA FTEOERICIOCOUN1Y. SGT. Instrument This Inal of Ins was prod an the as my posad by t9dJ.V`tipr'd end e with artifice t eNn x im thereto was dmlttod t for Tv lmpesod by Sec. ac. 5 5654.1 el S 'Uend 5654 have bean paid it a'.onsable. <i CLERK gitb ert w, cliffard associates. inc. ENGINEERS LAND PLANNERS SURVEYORS 200 North Conran Stre 1 Z24,01 Moce.ster. YryNla 22601 (703) 561 -0t39 PLAT q: NLPD1144.DWC y f/ J 4 N w �y F4 Y Q u�wvs?�.eazux, Asa "mod 7563 -8039 EBY /cmj 0 0 0 0 0 THIS DEED, made and dated this 27"' day of July, 2006 by and between JAMES G. GIBSON, hereinafter called the Grantor, and EAGLE PLACE INDUSTRIES, INC., a Virginia Corporation, hereinafter called the Grantee. WITNESSETH: That for and in consideration of the sum of Ten Dollars ($10.00), cash in hand paid and other valuable consideration, receipt whereof is hereby acknowledged, the Grantor does grant and convey, with General Warranty and with English Covenants of Title, unto the Grantee, in fee simple, together with all rights, rights of way, privileges improvements thereon and appurtenances thereto belonging, all of the following realty: All of those two (2) certain lots or parcels of land together with all improvements and appurtenances thereto belonging, lying and being situate along the Eastern side of Purcell Drive at Sunnyside, about one mile Northwest of Winchester, in Stonewall District, Frederick County, Virginia, fronting on said Purcell Drive a distance of 120 feet, and extending back Eastward between parallel lines a distance of 90 feet, described as PIN #53A -A -109, containing 5,400 square feet and PIN #53A -A -111, containing 5,400 square feet, and further more particularly described by plat and survey drawn by S. W. Marsh, L.S., dated July 5, 2006 attached hereto and made a part hereof as if set out in full. AND BEING the same property conveyed to James G. Gibson by Deed from Daisy L. Peacemaker, by her Guardian and Conservator, Pam Peacemaker, dated June 29, 2006 of record in the Office of the Clerk of the Circuit Court of Frederick County, Virginia, as Instrument Number 060012443. Reference is hereby made to the aforesaid instruments and the references contained therein for a further and more particular description of the property conveyed herein. This conveyance is made subject to all legally enforceable restrictive covenants and easements of record affecting the aforesaid realty. The Grantor does hereby covenant that he has the right to convey to the Grantee; that the Grantee shall have quiet and peaceable possession of the said property, free from all liens and copy encumbrances; and he will grant such further assurances of title as may be requisite. WITNESS the following signature and seal: (SEAL) JAMES G. GIBSON STATE OF. VIRGINIA COUNTY OF FREDERICK, To -wit: I, Cathy M. Jewell, a Notary Public in and for the State and jurisdiction aforesaid, do hereby certify that James G. Gibson, whose name is signed to the foregoing Deed, dated this 27 day of July, 2006 has personally appeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand this 26 of July, 2006. My commission expires: 12/31/08. 2 Notary Public VARIANCE APPLICATION #12 -07 EAGLE PLACE IND., INC. Staff Report for the Board of Zoning Appeals Prepared: August 1, 2007 Staff Contact: Mark R. Cheran, Zoning Administrator This report is prepared by the Frederick County Planning Staffto provide inforniation to the Board of Zoning Appeals to assist them in making a decision on this request. It may also be usefid to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: August 21, 2007 Action Pending LOCATION: 1160 Purcell Lane (Route 721) MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 53A -A -109 PROPERTY ZONING USE: Zoned: RP (Residential Performance) District 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 14 foot rear yard variance, resulting in a rearward setback of 11 feet for the construction of a wooden deck. REASON FOR VARIANCE: The applicant built a deck without a building permit over the rear setback. Variance #12 -07, Eagle Place Ind., Inc. August 1, 2007 Page 2 STAFF COMMENTS: The Frederick County Building Department received a complaint on May 29, 2007, reporting a deck built on this property. The deck was failed because a building permit was not applied for. The applicant applied for a building permit for a deck on July 7, 2007, and was not issued the permit due to a rear setback violation. The applicant applied for a building permit #2102) for a single family dwelling with no deck on the permit on property that is zoned RP (Residential Performance). The minimum building setbacks within the RP Zoning District are: front 35 feet, sides 10 feet and rear 25 feet'. The applicant's building permit had building setbacks of: front: 38 feet, sides 10.5 feet and rear 26 feet. The applicant was required to submit a house location survey, as required by the zoning ordinance, for any primary structure located five (5) feet or less from any minimum setback. The setback survey placed the single family dwelling at 25.3 feet at the rear BRL as shown. The applicant has applied for a 14 foot variance that, if approved, will result in a rear setback of 11 feet. to allow for this deck. (See attachments) 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. STAFF CONCLUSIONS FOR THE AUGUST 21, 2007 MEETING: 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 and staff would recommend denial of this variance application. The strict application of the Frederick County Zoning Ordinance does not produce an undue hardship as required by the Code of Virginia. This violation of the setback requirements was self inflicted, as the deck was constructed without a building permit. Russell A. Fowler James R. Larrick, Jr. J. David Griffin James A. Drown Beth M. Coyne Dear Mr. Cheran: RAF:kbj With kind regards, I ant cc: Mr. James G. Gibson WINCHESTER LAW GROUP, P.C. Attorneys and Counselors at Law 29 North Braddock Street Winchester, Virginia 22601 Telephone (540) 667 -6400 Facsimile 540) 722 -0654 E -Mail: rfnwler(rilwinchesterlaw.com. August 10, 2007 Mark R. Cheran, Zoning Administrator Frederick County Department of Planning Development 107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000 RE: Variance Request #13 -07 of Eagle Place Ind., Inc. Request to Continue Hearing Date Very truly yours, ‘x-?/./kfdliavapety, Russell A. Fowler A U G 1 3 2007 Please Replr To Post Office Box 444 Winchester, Virginia 22604 I represent James Gibson and Eagle Place Ind.. Inc., and have been asked by Mr. Gibson to appear with hint at the public hearing to consider the above referenced variance request. I have received a notice of hearing for Tuesday, August 21, 2007, at 3:25 p.m. Mr. Gibson is scheduled to be out of town 011 that date and cannot alter his plans and I will be in a trial in the Circuit Court of Frederick County that afternoon. Both Mr. Gibson and I would sincerely appreciate it if this matter could be moved to the September, 2007 docket at which time both of us will be able to attend. Thank you for your consideration of this request. 1 will look forward to hearing from you. EXAMPLES Example I #53A A 107 Purcell Lane House not in approved area Example II #53A A 118 Foreman Lane Property borders the rear of 53A A 109 and 53A A 111 Example III #53A A 98 Purcell Lane note front and right set backs Example IV #53A A 97 Purcell Lane note location of driveway, Front and left setbacks of house Example V 53A A 104A Purcell Lane note location of driveway, front and right setbacks of house PICTURES 1. Old barn at end of Purcell Lane Feb. 2007 2. Old barn at end of Purcell Lane May 2007 3. Rear view of Example II 53A A 118 (Foreman Lane) Against the rear of 53A A 108 109 111 (1.45' see plat) 4. Rear view of lot 53A A 109 Purcell Lane 5. Rear view of lots 53A A 109 111