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HomeMy WebLinkAbout13-07 ApplicationVARIANCE APPLICATION #13 -07 RICHARD LINEBERG Staff Report for the Board of Zoning Appeals Prepared: September 20, 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: August 21, 2007 Action Tabled by Applicant September 18, 2007 Action Tabled, New Application Required October 16, 2007 Action Pending LOCATION: 1 164 Purcell Lane (Route 721) MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 53A -A -111 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 an existing wooden deck. REASON FOR VARIANCE: The builder built a deck without a building permit over the rear setback. Variance #13 -07, Richard Lineberg September 20, 2007 Page 2 This application was postponed from the meeting of August 21, 2007 and September 18, 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 builder 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 builder applied for a building permit #2097) 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 builder's building permit had building setbacks of front 38 feet, sides 10.5 feet and rear 26 feet. The builder 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 builder has sold this property to Richard Lineberg and Mr. Lineberg is now applying 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 OCTOBER 16, 2007 MEETING: 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 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- 2309(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 by the builder, as the deck was constructed without a building permit. AR #13 -07 1 p p m PI Aerial M Location in the County Map Features O Hamlets o!r Future R137 Bypass Application LakesfPonds Streams Streets 'N. Primary Secondary Tertiary .I Brim, Development Area SWSA Map Document: N:1Planning_And_Development1 1_ Locator_ Mpsi EaglePlacelndlnc _VAR1307_072307.mxd) 7/23/2007 9:30:09 AM Frederick County, VA Variance VAR 13 07 Application Richard Lineberg Parcel ID: 53A -A -111 Location in Surrounding Area 0 25 50 Case Planner: Lauren '.beet A R 13 07 4141100110.0.111100 Location 41 Q r 7 Q �t 441e0:1Plifj.. STAR FO T V Location in the County Map Features o Hamlets A!• Future Rt37 Bypass Application Lakes /Ponds Streams Oa Buildings Streets Primary Secondary ti Tertiary L* Urban Development Area Ai SWSA Map Document: (N:IPlanning_And_Development1 1_ Locator_ Mps\ EaglePlacelndlnc _VAR1307_072307.mxd) 7/23/2007 9:30:09 AM Frederick County, VA 25 50 Case Planner: Lauren Variance VAR 13 07 Application Richard Lineberg Parcel ID: 53A -A -111 Location in Surrounding Area tUreet R #13 -07 I I A N Zoning 40 LAUD $TA• FO T Frederick County, VA Location in the County Map Features O Hamlets Zon 4 Future Rt37 Bypass Application tS Lakes/Ponds Streams e Buildings Streets Primary 'V Secondary Tertiary Urban Development Area Map Document: (N: \Planning And_Development1 1_ Locator_ Mps\ EaglePlacelndlnc _VAR1307_072307.mxd) 7/23/2007 9:30:09 AM Ogg Location in Surrounding Area 0 25 50 Case Planner: Lauren Variance VAR 13 07 Application Richard Lineberg Parcel ID: 53A A 111 ing B1 (Business, Neighborhood District) B2 (Business, General Distnst) B3 (Business, Industrial Transition District) EM (Extractive Manufacturing District) HE (Higher Education District) MI (Industrial, Light District) M2 (Industrial, General District) MH1 (Mobile Home Community District) MS (Medical Support District) R4 (Residential Planned Community District R5 (Residential Recreational Community Di: RA (Rural Area District) RP (Residential Performance District) SWSA 1 .1-eei a 0 CN J ID CD f) N. 0 r a a n a) a N oo CN1 8 RI rcCr '-0 hi hi m 4-4 cn C5 CU C5 C5 ED 0020 C Z 0 ;l as 0:1 E c cc E 0 a 4. c 0 0 0 (5 ca 63 (1) 0 0 0 c 0 u 4.; co 0 9 0 1\1 Lei v'zi ra co 0 ci Pi 15 5. PI Cz, EA H (l b) IT1 }4 1-1 0 r4 5.■ c] 0 F-1 'a 6 4 it 0 r 41 41 E 0 0 z z 41 41 9 0 0 NI r CN hi m 4 mo2 2 2 2 k) ;La )t( a D. 0 ifa an a El 0 0 CU in Si bp cri 1E m riq rri ƒ 4- E tr CU in a o co I- a ql 3 l i x INI APPLICATION FOR VARIANCE /3 -0 7 IN THE COUNTY OF FREDERICK, VIRGINIA MUST BE TYPED OR FILLED OUT IN INK PLEASE PRINT 1. The applicant is the owner other /K (Check one) 2. APPLICANT: OCCUPANT: (if different) f NAME: PI NAME: c1� L�rueDLeR J ADDRESS‘?-0 ADDRESS: 1 ((vy PO "WE (0 V€ 22 V 2-2-603 Page 5 of 9 TELEPHONE: 6(oZ 0 90- TELEPHONE: 6C, 4435 3. The property is located at (give exact directions and include State Route numbers): Lnia E) U0 04kul I --s ,zz N a M p_ a.o a 3 k blSt -b �Z coece LSE- k&uts e. kk 4. The property has a road frontage of to feet and a depth of 9 feet and consists of acres (please be exact). ,j yYj 5. The property is owned by e% by deed from .E, book no. orfoctf }on page Court for Frederick County. Please as evidenced 'es recorded (p ious owner) in deed of the deed books of the Clerk of the attach a copy at the recorded deed. 6. Magisterial District: tie (el 7. Property Identification No.: 53» 8. The existing zoning of the property 9. The existing use of the property is: 10. Adjoining Property: USE North V4t.IAnr East South 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.") 6 k West r< ti1 nig e V a A-1 -S Page 6 of 9 n the use or developrrient of property immodia ly adjacent thereto 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 zeta 344 s See Lxitet 13. Additional comments, if any: we- n age Mh +t 1 c 4 eetpt& araiD )e &DO-C (1 Lkk, okL ;711 (nom is >v mow. Up 1- kk \o c 4 `m m e 1 �OIaN y 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 ivy PIS Ne4 'Act 4<5 RA I rk R A y rn c G6 bole AeAh;11 Address 1.&, 1 1 S4€ Property ID 5 4- /07 Address Y e Pee/ e 4- A Property ID 53 .4 83 F V Address /0 t3 Fti tt -cj L4425 GY u.c. Iii z Property ID 53,4 /1 Address 116 fZzhee/(CN. do h& c. fri �zbc Property ID S3� i _4 7-6 Address Property ID Address Property ID Address Property ID Address Property ID 3 Page 7 of 9 u3 l-1 o3 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 9 895'± TO INTX RTE. 522 39.1 FRAME SPLIT FOYER DWELLING WITH BRICK FACADE F.F.E. (508.51) G.F.E. (498.27) 39.2' 499 IRS CIO f7- sse.1O09 qa' 498 D� k (y'D Ib 0 LEGEND: IRF 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 61 q e, BRICK Q STOOP 't 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: 11/29/2006 m 9" STRIP OF LAND N 30 °35'00" E 60.00' 5 30 °35'00" W 60.00' PIN 5JA -A -//8 N/F DAVIS 05 959 PG 450 HOUSE LOCATION AS -BUILT TOPOGRAPHIC SURVEY OF THE LAND OF EAGLE PLACE INDUSTRIES, INC. INSTRUMENT NO. 060014375 STONEWALL MAGISTERIAL DISTRICT FREDERICK COUNTY, VIRGINIA SCALE: 1 =20' PURCELL LANE VA. SEC. RTE. 721 (Variable Width R/Wt 9 ,q.°� 35' BRL .IRF 10.5 SHEET 1 OF 1 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 2 Ail.? ee Litz..✓_^ 498 o a J3 rn W W CD �a kcc 0 co O FLOOD NOTE: ZONE: C COMMUNITY NO.: 510063 PANEL: 01058 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. DRAWN BY CAJ DWG NAME: ID7826 -HLS -111 AGREEMENT VARIANCE /3-0 (Number to be assigned by the Planting 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 B7A 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 OWNER 7/447 DATE (if other than applicant) DATE BZA PUBLIC HEARING OF APPROVAL SIGNEII 1 It DENIAL -OFFICE USE ONLY- BZA CHAIRMAN DATE: 10 [Ile (0 Page 9 of 9 ACTION: BOUNDARY LINE ADJUSTMENT BETWEEN THE LANDS OF NORMAN L. NANCY DEED BOOK 963 PAGE 728 R STONEWALL MAGISTERIALDISTRICT FREDERICK COUNTY, ND SCALE: 1 20 SHEET: 2 OF 2 DATE: 1/3/07 Mars Legge Lan d =yors, P.L.C. .r 560 NORTH LOUDOUN STREET WINCHESTER, VIRGINIA 22601 ra, PHONE (540) 667 -0468 FAX (540) 667 -046 DAME of6ce0marshandlegge.com DRAWN BY: MBB DWG NAME: —BLA PLAT IRF IRS I IRS ASPHALT DRIVEWAY LEGEND IRF IRON ROD FOUND IRS IRON ROD SET 53,4-A -109 EAGLE PLACE INDUSTRIES INC. INST /050074375 ZONED: RP USE: RESIOEN 17AL S 5925'00" E N co 70" BRL 7 I 1 Im co "I h IN 1 53A —A 708 5,719 SOFT (ORIGINAL) 5,404 SO. FT. (ADJUSTED) ZONED: RP USE RESIDEN EX. PROP. LINE I HEREBY VACATED L N 5828'18 W 53- A -104 GEORGE N. MARY JANE CARTER INST. /030017527 PLAT D8 799 PG 7352 ZONED: RP USE: RESIDE,N TIAL 90. 10' BRL (PROP. LINE HEREBY CREA TED) S 5925'00" E 90.14' 10 BRL 53A —A -707 5,814 SO. F7. (ORIGINAL) 5,529 SOFT. (ADJUSTED) ZONED: RP USE: RESIDENTIAL 20' 0 I J Im IN EX PROP. LINE HEREBY VACATED 90.30' WOODEN FENCE Q J W IRS o me V ?a U W 01 L4 CN W UN a Q co I h QO�C I POINT ON ROCK SCALE 20' 7 /NCH 20 FEET 40' if154 TO '1 MAY, ET UXDEED �'r !..�(1 k L_ L� CECIL C. AFFLECK JJ THIS DEED made and dated this 24th day of October, 1958, by 'and between Curtis W. May and Sue V. May, his wife, parties of the first part; and i�. Cecil C. Affleck, party of the second part. WITNESSETH: That for and in consideration of the sum of $10.00 and other good and valuable consideration, the receipt of all of which is n .11, hereby acknowledged, the said parties of the first part do hereby grant and convey, 'N 7 with general warranty of title, unto the said party of the second part, in fee simple, \5 all of that certain lot of land, together with the improvements thereon and the c y\ ;appurtenances thereunto belonging, lying and being situate about 1 mile north of 'Winchester in Stonewall Magisterial District, Frederick County, Virginia, containing ;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- Iference 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 r 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. REVENUE STAMPS $7.7 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 SHIPE ary e OLD ROADWAY RT. 7 LINE LOTS 768' 800.4' 3 n r I- 1- O in ow-I 2 W 0 ze iw OR 12 52 FRONTING PURCELL 3r ft; CURTIS W. MAY (SEAL) SUE V. MAY (SEAL) N IRON PIN P T. SEO. r -60.1' N 32 04 E 322 IIN4 9,952 SQ, FT. 324' s 24 56' 12 je DRIVE 5 53° 27'E 11 0 rr (1 CERTIFIED CORRECT LEE A. EBERT. C.LE. 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 5 24 58' W 324 ft. 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. 7.FF A. EBERT Surveyed October 20, 1958. Certiiie0 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 CO 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" r) U) Z Q. w 0 o co rn co co N w N \IRS N h PURCELL LANE 30' R/W HOUSE LOCATION SURVEY LAND OF CHARLES 0. DENNY WILL BOOK 80 PAGE 543 STONEWALL DISTRICT FREDERICK COUNTY, VIRGINIA 28.3' THIS LOT IS LOCATED IN HUD FLOOD ZONE C, AREA OF MINIMAL' FLOODING AS SCALED FROM FIRM MAP 510063 0:05 B EFFECTIVE JULY 17, 1978 TRITON DB 791 P. 1383 W 40.00' 1 STORY FRAME d: 1112 N z IRS TM 53A -A -98 3,502 SQ. F. 03 0 0 1n to to O —J Ql 262.5' TO N. FREDERICK PK. IRS N 30'35'09" E 40.00 CHRISTOPHER D. FURSTENAt1 No. 2727 toot '1A, ,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: SEPT. 25, 2006 SCALE: 1 20' THIS IS TO CERTIFY THAT ON SEPTEMBER 25, 2006 THAT 1 MADE AN ACCURATE SURVEY OF THE PREMISES TAX MAP: 53A A 98 SHOWN HEREON AND THAT THRRR APR THIS IS TO CERTIFY THAT ON APRIL 17, 2002 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. aD n TRITON 791/1383 S 30°01•38"W 40. 5.6' pow.VIf. 11/2 story 10.6 PORCH 23.5' frame 41108 3,518+ DECK 0 12.9' N 30 °95'26 "E 40.00' PURCELL LANE 30' WIDE GRAVEL DRIVEWAY okl STINE w. I 222' s 10 North Frederick Pik. HOUSE LOCATION SURVEY FURSTENAU SURVEYING 111 SOUTH LOUDOUN STREET WINCHESTER, VIRGINIA (540) 662 -9323 THIS LOT IS LOCATED IN FLOOD ZONE C, AREA OF MINIMAL FLOODING AS SHOWN ON FIRM NAP b 510063 0105 B EFFECTIVE JULY 17, 1978 LAND OF T. P. AND SUSAN M. GOODMAN STONEWALL DISTRICT FREDERICK COUNTY. VIRGINIA DATE: APRIL 17, 2002 SCALE: 1" 15' fax map 53A -A -97 DEED REF. BB. 836 P. 1157 Y' C c s DID o CERTIFICATE NO. U DATE: JUNE 29. 1993 SURVEY DATE: JUNE 17. 1993 BUILDING LOCA DON SURVEY of PREMISES LOCATED AT 1144 PURCELL DRIVE STONEWALL MAGISTERIAL DISTRICT FREDERICK COUNTY, VIRGINIA 1 '0 S 6S ;2 44.1/4 e FGFND IRF Iron Rod Found o h .al C i I. The lot represented by this plot was conveyed to Fronk V. Sherwood, Jr. and Beverly J. Sherwood. his wile, by deed doled 25 May 1990 and recorded among the land recarde of Frederick County, Virginia in Deed Book 745 of Poge 736. 2. No title report furnished. Th,n lot does not lie within a H.U.D. designated 100 year flood zone. IM U. 6w.wkd Dim rro wortro,c magma 22401 (tm) 090 VIRG NIA: FREDFRICKCOUNTY. SCT. Tens Minus d0l we> produced to mean die Jo dyer 199 ntther 'n3t 1 old with certifies tac TeX w mpzsed nt thereto was dmitted to lmpased by Sea.58.543 5656.1 Of IT -SUdnd 5654 have been paid. It assessable. V IU. CLERIC 61(799PG1392 F p si29 .9 F A SURVEYOR'S CERTIFICATE 1 hereby certily that the information shown on this plat Is based on o actual held survey mode under supervision and no y mere re n encroachments or visible easement- unless shown cjuq /ad C 'C' Douglas e. Legge. LS. glhart w. cllllord associates. ENGINEERS LAND PLANNERS SURVEYORS doe North Cmrm Strnt WnGnls. W 0,l 73641 (703) 667-2130 PLAT HLP01146.GWG /0[/ �C' a> SCULLY C GLASS ATTORNEYS AT LAW 20 SOUTH KENT STREET WINCHESTER, VIRGINIA 22601 070009947 N r THIS DEED, made and dated this 18 day of June 2007, by and between EAGLE PLACE INDUSTRIES, INC., party of the first part, hereinafter called the Grantor; and RICHARD F. LINEBERG, party of the second part, hereinafter called the Grantee. WITNESSETH: That for and in consideration of the sum of Ten Dollars ($10.00), cash in hand paid and other good and 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, all of the following realty: All of that certain lot or parcel of land, together with the improvement thereon and the appurtenances thereunto belonging, lying and being situate in Stonewall District, Frederick County, Virginia, described as PIN #53A -A -111, containing 5,400 square feet, more or less, as shown on plat entitled "Plat of Consolidation of the Land of James G. Gibson prepared by S. W. Marsh, L.S., dated July 13, 2006, attached to the Deed of record in the Office of the Clerk of the Circuit Court, Frederick County, Virginia, as Instrument No. 060014375; AND BEING a portion of the same property conveyed to Eagle Place Industries, Inc., by Deed dated July 27, 2006, from James G. Gibson, of record in the aforesaid Clerk's Office as Instrument No. 060014375. Reference is here made to the aforesaid instruments, the attachments thereto and the references therein contained for a further and more particular description of the property hereby conveyed. This conveyance is made subject to all legally enforceable restrictive covenants and easements of record affecting the aforesaid realty. SCULLY a GLASS ATTORNEYS AT LAW 20 SOUTH KENT STREET WINCHESTER, VIRGINIA 22601 VIRGINIA: FREDERICKCOUNTY.SCT. This instrument of writing was produced to me on o?D -,20D 7 at I 1 P m and wish certificate acknowledgement thereto at nexer9 was admitted to record. Tax imposed he Sec. 5S.I4802ot S -250.°° and 5S.I -SO I have been paid, if assessable. Clerk WITNESS the following signature and seal: Eagle Place Industries, Inc. 0 N) 01 STATE OF VIRGINIA COUNTY OF FREDERICK, to -wit: I, Tina R. Ladd, a Notary Public in and for the State and jurisdiction aforesaid, do hereby certify that Mows (7. i 7r bSDr) whose name is signed to the foregoing Deed, bearing date of the 18 day of June 2007, has this day personally appeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand this 18 day of June 2007. NOTARY My commission expires January 31, 2011. VARIANCE APPLICATION #13 -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 he useful to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: September 18, 2007 Action Pending LOCATION: 1164 Purcell Lane (Route 721) MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 53A -A -111 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 #113 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 #2097) 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 BRI_ 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 SEPTEBER 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. August 21, 2007 LOCATION: 1164 Purcell Lane (Route 721) MAGISTERIAL DISTRICT: Stonewall PROPERTY ID NUMBER: 53A -A -111 VARIANCE APPLICATION #13 -07 EAGLE PLACE IND., INC. Staff Report for the Board of Zoning Appeals Prepared: August 6, 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. 11 may also he usefid to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: Action Pending PROPERTY ZONING USE: Zoned: RP (Residential Performance) District Land Use: Residential ADJOINING PROPERTY ZONING USE: North: RP (Residential Performance) South: RP (Residential Performance) East: RP (Residential Performance) West: RP (Residential Performance) Use: Residential Use: Residential Use: Residential 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 #13 -07, Eagle Place Ind., Inc. August 6, 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 #2097) 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 Mark R. Cheran, Zoning Administrates 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 Dear Mr. Cheran: I represent James Gibson and Eagle Place Ind., Inc., and have been asked by Mr. Gibson to appear with him 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 on 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. I will look forward to hearing from you. RAF:kbj With kind regards, 1 am 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: rfowlerwinchesterlaw.com. August 10, 2007 Very truly yours, *izadde Q. cu/ 5 Russell A. Fowler Please Reply To: Post Office Box 444 Winchester, Virginia 22604 7563 -8039 EBY /cmj r 4 N h b 7 ckt 00 00 o X 0 m z V O C v> t: o; T -o -o `n o V 6 N c o .c m E g 2 m. m z y .G c 5 c 3 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 ‘OPY 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 0 43 o OPGOOFY P. HYTCHINSON AITTORNeY AT LAW 12473 ePACOOC 6i. 030011527 THIS DEED, made and dated this day of Reference is hereby made to the aforesaid instruments and the attachments and the references therein contained, for a more particular 2003, by and between JOSE S. AYALA, hereinafter called the Grantor; and GEORGE N. CARTER and MARY JANE CARTER husband and wife, hereinafter called the Grantees. WITNESSETH: That for and in consideration of the sum of Ten Dollars, and other valuable consideration, the receipt of which is hereby acknowledged, the Grantor does hereby grant and convey with General Warranty and English Covenants of title unto the Grantees, as tenants by the entireties, with common law right of survivorship, the following property: All that certain lot or parcel of land, together with all rights, rights of way, and appurtenances thereunto belonging and improvements thereon, lying and being situate in Sunnyside, Stonewall Magisterial District, Frederick County, Virginia, fronting sixty (60) feet on Purcell Drive and extending eastward with a uniform width of sixty (60) feet for a distance of ninety (90) feet to its rear boundary and more particularly described by plat and survey of Douglas C. Legge, C.L.S., dated June 17, 1993, of record in the Office of the Clerk of the Circuit Court of Frederick County, Virginia in Deed Book 799, at Page 1392; AND BEING the same property conveyed to Jose S. Ayala by deed dated January 7, 2002, from Darryl G. Willis and Alicia S. Willis of record in the aforesaid Clerk's Office as Instrument No. 020000344. owvoonv P. 14 JTCFm,OON ATTR.CVaT LAW +va a sanmooc m. description of the property hereby conveyed. This conveyance is made subject to all easements, rights of way and restrictions of record, if any, affecting the subject property. WITNESS the following signature and seal: Soo S 1 1 4-ycu t JOSE S. AYALA to The foregoing instrument was acknowledged before me in my aforesaid jurisdiction this S day of 2003, by Jose S. Ayala. My Commission Expires: Lapi t) 30, a VIRGINIA: FREDERICK COUNTY, SCT. This instrument of writing was produced to me on o3/J. „Rm.? at 9,' o l AM and t certificate of acknowledgement thereto annexed wasmitted to record. T imposed by See. 58.1 -802 of 5 2 OD and 58.1 -801 have been paid, if assessable E/74st'o Clerk (SEAL)