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Home My WebLink About01-05 Comments 2WILBUR C. HALL (1892 -1972) THOMAS V. MONAHAN (1924 -1999) SAMUEL D. ENGLE 0. LELAND MAHAN ROBERT T. MITCHELL, JR. JAMES A. KLENKAR STEVEN F. JACKSON DENNIS J. MCLOUGHLIN, JR. Dear Mark: HALL, MONAHAN, ENGLE, MAHAN MITCHELL) A PARTNERSHIP OF PROFESSIONAL CORPORATIONS 1 s 7 EAST MARKET STREET 9 EAST BOSCAWEN STREET LEESBURG, VIRGINIA TELEPHONE 703 777 -1050 ATTORNEYS AT LAW March 24, 2005 Mr. Mark Cheran, Zoning Administrator Frederick County Department of Planning and Development 107 North Kent Street, Suite 202 Winchester, VA. 22601 -5000 WINCHESTER, VIRGINIA TELEPHONE 540 665-3200 FAX 540 -662 -4304 E 13WyeRe4N1311T011ahan. con PLEASE REPLY TO: P. 0. BOX 848 WINCHESTER, VIRGINIA 22604 0848 Re: Frederick County Board of Zoning Appeals ads. Colleen McDonough At Law No. L -05 -61 I obtained from the Clerk's office a copy of the Appeal filed in the Circuit Court by Colleen McDonough. In the event that you do not have a copy, I am enclosing a copy. In accordance with the Certiorari entered by the court, we will need to file a copy of the complete BZA record in this case within 30 days of March 16, 2005. Accordingly, I would appreciate your having three copies of the complete BZA record made and forwarded to me, so that I can file one with the court, provide one copy to the Plaintiff, and have one copy for my file. In the meantime, I would like to have as soon as possible, if you have these items in your file, a copy of the original plat recorded in 1966, a copy of the Deed of Dedication or other document recorded with the plat, and a copy of any plat submitted by the current owner of the property showing the proposed location of the dwelling on the lot. After I have a chance to review these three items, I will want to discuss this case with you further and before I file my written response. RTM /glh Enclosure HALL, MONAHAN, ENGLE, MAHAN MITCHELL Mr. Mark Cheran, Zoning Administrator March 24, 2005 Page 2 If there are any questions concerning the foregoing, please contact me. With kind regards, I am —Very my yours, Robert T. Mitchell, J MEMORANDUM TO: Robert T. Mitchell, Jr., Esq. FROM: Mark Cheran, Zoning Administrator dicif RE: Writ of Certiorari DATE: March 22, 2005 Attachment 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 This is a copy of the Writ of Certiorari for the McDonough Appeal received March 17, 2005. The BZA did not want to change its motion on this matter. They felt the case should be appealed to the Circuit Court. Ms. McDonough has a copy of the minutes of the February 15, 2005 meeting. VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF FREDERICK: COLLEEN MCDONOUGH Petitioner VS. FREDERICK COUNTY BOARD OF ZONING APPEALS. Respondent JOHN PROSSER, JUDGE A Copy Attest Frederick County Circuit Court Rebecca R Hogan, Clerk puty Clerk AT LAW NO. L -05 -61 WRIT OF CERTIORARI Upon the Petitioner:•motion, the Court does hereby issue this writ of certiorari to review the decision of the Frederick County Board of Zoning Appeals and does hereby order the return, within thirty days of the date of this Order, and the return shall be served upon the Petitioner. The return shall include all 'pertinent papers, documents and transcripts of testimony in the possession and control of the Board of Zoning Appeals concerning any and all matters that came before the Board concerning the request(s) by Colleen McDonough to approve variances in this matter. Enter this`L. day of March, 2005. ENTE 05 January 18, 2005 Ms. Colleen McDonough 174 Hopewell Road Clearbrook, VA 22624 RE: Zoning Determination for Building Setbacks Property Identification Number (s) (PINs):32 -5 -5; 8; and B -4 Zoning District: RA (Rural Areas) Dear Ms. McDonough: This letter is in response to your correspondence dated January 14, 2004 to the Zoning Administrator, requesting a zoning determination on the above referenced properties. In the correspondence, you indicated that you wanted the setbacks for the properties located on Hopewell Road. Research of County records shows that the above subject properties were recorded in 1966, with recorded setbacks of 50' front and 10' sides on lots 5 and 8. Lot B -4 has no recorded setbacks. These recorded setbacks run with the recorded subdivision of Welltown Heights. Frederick County adopted comprehensive zoning in 1967; therefore, the recorded setbacks for lots 5 and 8 are correct and lot B- 4 would have to meet the current setbacks of the RA zoning district of the Frederick County Zoning Ordinance, which is 50'. You may have the right to appeal this zoning determination within thirty (30) days of the date of this letter in accordance with Section 15.2 -2311 of the Code of Virginia. This decision shall be final and unappealable if it is not appealed within thirty (30) days. Should you choose to appeal, the appeal must be filed with the Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with Article XXI, Section 165- 155A(1) of the Frederick County Zoning Ordinance. This provision requires the submission of an application form, written statement setting forth the decision being appealed, date of decision, the grounds for the appeal, how the appellant is an aggrieved party, any other information you may want to submit and a $250.00 filing fee. If you are going to appeal this decision you will need to file three (3) separate filing fees. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. Please do not hesitate to contact me regarding any questions you may have at (540) 665 -5651. Zoning Administrator MRC/bhd Hand Delivered 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 January 14, 2005 Mr. Mark Cheran /Zoning Administrator Department of Planning and Development 107 N. Kent Street Suite 202 Winchester, VA. 22601 Regarding: Zoning Approval for Lots 5, 8 and B -4 in 'RA' area of Tax Map 32. Dear Mark, Please provide the Zoning Approval and setback requirements approved by your office for the construction of new homes and garages on lots 5, 8 and B -3 on Hopewell Road, Clearbrook, VA. Colleen McDonough Owner of Lots 6, 7 and B -3. Cc: Tom Chasler; File FREDERICK COUNTY PLANNING DEVELOPMENT Colleen McDonough 174 Hopewell Road Clearbrook, VA. 22624 Hm- 540 -667 -0189 Wk- 703 692 -7393 Hopewell Road Lot 5, TAX ID Map 32 February 15, 2005 Introduction: The purpose of this meeting today, is to determine or verify the following: LL That the Frederick County Zoning Administrator correctly determined the setback requirements for the building of new homes on adjacent properties (to my home), in the "Rural Area" of Hopewell Road. Specifically, Lot 5 TAX ID map 32. If the FC Zoning Commission (and /or ZA) has the "Authority" to enforce Deeds. Where setback requirements are NOT SHOWN or illustrated on land plates, can the ZA determine setbacks based on language, mentioned in a Deed. BZA Meeting Continued Hopewell Road To confirm that Welltown Heights is currently considered "Rural Area" even though it was parcelled out, or "Subdivided" in 1967. To confirm setback requirements for "RA" Areas within Subdivided Parcels. To confirm that Deeds are "Civil" issues and Not Zoning issues. To illustrate adjacent properties which have also been approved at 10' -0" where the Deed does not have any mention of "Setbacks" (i.e. Lot B -4). Lot B -4 (2) Acres McDonough Lot B -3 (2) Acres Lot 8 (1) Acre McDonough Lots 6 7 (2) Acres Please refer to the diagram below for an overview of the Stonewall District area under discussion. Shaded Areas indicate currently under Construction 8 Acres total Area under discussion today Impact of approved 10'-0" setbacks from adjacent Lot 6 Property line. Safety '2 Potential Neighbor disputes Tr Current and Future Financial Impacts Future Adjacent Property development Environmental Impacts No alternate Drain field location Please refer to the following photographs that illustrate the proximity of the new construction to the existing property line. Existing Home w Lot 8 tfh J3f. 4 .ate 111:g4• F T7 The following diagram shows the impact on adjacent properties with a Setback of 10' -0" specifically, SAFETY, Future Neighbor disrupts and Future Development of McDonough's Lot B -3. Driveway sting Drain d New Driveway to exceed 320' from road frontage. New Home Approx. Location Of Future House Future Driveway To rear 2 Acres that Are currently Land Locked. New Drain field location Appeal Summary Based on the fact that the existing Deeds for Lots 5 and 8 do not show Setback requirements on the Original plat -see attached, and the Deed only references (2) sides of the subject property; it is my concern that the ZA has not correctly enforced the Zoning requirements for this Area. It was my understanding at the time I purchased my home that this Area was Zoned "RA" and that Setback requirements are 50' on all 3 sides, regardless of any Grandfather clause and regardless of Welltown Heights "Subdivided" parcels of 1966. Appeal Summary Cont'd. Additionally, since Lot B -4 was also approved with a 10' -0" Setback where the Deed NOR the plat indicate any setback requirements, and since that Lot should have met current setbacks of 50' -0" setbacks from adjacent property lines; it raises doubt about the Zoning Approval for Lot 5 The approved 10' -0" setback for Lot 5 Directly and Negatively impacts the adjacent property due to the proximity of the house to a future driveway, which will have to be installed to access Lot B -3 which is currently Land Locked. The following diagram shows the location of a newly approved Garage to be built with 10' -0" setback as approved by the ZA which appears to be in violation of the Land Deed, Book 437 page 720. New Garage Additional New Construction on adjacent Lots B -4 and 8. oposed ?w Home Lot B -4 Lot 8 Lot 5 New Home