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Home My WebLink About03-05 Comments 2WILBUR C. HALL (1892 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. HALL, MONAHAN, ENGLE, MAHAN MITCHELL A PARTNERSHIP OF PROFESSIONAL CORPORATIONS 7 E 307 EAST MARKET STREET LEESBURG, VIRGINIA TELEPHONE 703 7771050 ATTORNEYS AT LAW July 14, 2006 Mr. Mark Cheran, Zoning Administrator Frederick County Department of Planning and Development 107 North Kent Street, Suite 202 Winchester, VA. 22601 -5000 Dear Mark: B EAST BOSCAWEN STREET WINCHESTER, VIRGINIA TELEPHONE 540-662-3200 FAX 540 662-4304 E MAIL lawyers @hallmonahan.com Re: Frederick County Board of Zoning Appeals ads. Beatty PLEASE REPLY TO: JUL 1 7 2006 P. 0. Box 848 WINCHESTER, VIRGINIA 22604 0848 As I previously advised you, the Beattys have nonsuited the above case, and it has been dismissed from the Court docket. You will find enclosed a copy of the Order granting the motion for a nonsuit With kind regards, I am RTM /ks Enclosure CC: Eric Lawrence Robert T. Mit ours, LAW OFFICE THOMAS J. CHASTER EAST BOSCAWEN STREET CHESTER, VIRGINIA 22601 (540) 662 -1203 VIRGINIA: IN THE CIRCUIT COURT OF FREDERICK COUNTY ROY R. BEATTY PATRICIA G BEATTY Petitioners V. AT LAW NO.: L -05 -69 FREDERICK COUNTY BOARD OF ZONING APPEALS Respondent ORDER On this day came the Petitioners, by Counsel, upon the Motion filed herein. It appearing to the Court that the Petitioners have requested that this matter be nonsuited, it is hereby ADJUDGED and DECREED that the motion for nonsuit is hereby granted, this matter shall be dismissed without prejudice in the Court's active docket. ENTER this day of 2006. JUDGE Thomas J Chasler, Esquire Cou .el for Complainant Robert T. Mitchell, quire Counsel for BSI ent A Copy Attest: Frederick County Circuit Court Rebecca P. Hogan le Deputy lerk 203 EAST BOSCAWEN STREET WINCHESTER, VIRGINIA 22601 Telephone: (540) 662 -1203 E -MAIL: Facsimile: (540) 665 -9615 tchasler®email.com January 26, 2005 Zoning Administrator and Board of Zoning Appeals Frederick County 107 North Kent Street, Suite 202 Winchester, VA 22601 LAW OFFICE 1 11 THOMAS J. CHASLER Re: Zoning. Determination for Deer Ridge Estates Property ID No.: 59 -A -34 Zoning District: RA Date of Decision: December 28, 2004 Gentlemen: Please be advised that an appeal is filed to the determination of the Zoning Administrator in reference to the above parcel. I have enclosed a check payable to Frederick; County for $250.00 as the filing fee. The parcel in question consists of 48.7452 acres. The Final Plat for Rural Preservation Subdivision dated July 18, 2002 is attached. It is the landowner's intention to 'do a boundary line'adjustment with Lots 3 and 4 which are owned by third parties. The Boundary Linn Adjustment would consist of approximately 5 -7 acres North of each lot. The Parent Tract would be reduced by approximately 10 -14 acres to approximately 35 -38 acres. The original Parent Tract was 65.94 and the 40% Rural Preservation Tract minimum would be 26.38. Currently, the rural Preservation current tract is 48.7452 which is nearly 22 acres in excess of the 40% requirement. The Plat and Boundary Line Adjustment Agreement would provide that Lot 3 and Lot 4 could not subdivided further. The Zoning Administrator's determination that the proposed use is not in compliance with the Zoning Ordinance is incorrect. By letter of December 28, 2004, the Zoning Administrator, denied the request citing 165- 54D(c) for the proposition that no further changes of the preservation is allowed. Section 144 -2 under Definitions Boundary Line Adjustments provides: "A change in the boundary line between adjoining lots, tracts or parcels which does not create new lots or reduce the number of existing lots.' (144 -2) The term subdivision is defined: "The division of a lot, tract or parcel of land into two or more lots, tracts, parcels or other divisions of lands of land for sale, development or lease; or the tracts or parcels of land resulting from the division of property." (144 -2) It is clear that a Boundary Line adjustment is not a subdivision of land. The Subdivision ordinance defines land division as follows: The subdivision of one parcel of land into two or more parcels or any changes to the boundary of any lot, tract or parcel of land." (144 -2) The Subdivision ordinance provides that a boundary line adjustment is not a division of land provided it does not create new lots or reduce the number of lots and then under land division it states: any changes to the boundary of any lot." The two definitions conflict and the only reasonable interpretation is that a boundary line adjustment cannot be a division if no new lots are created, therefore, there is no division of the Qand under 165.54(1)(4). Further, the landowner's position is that a Boundary Line Adjustment between the lots does not constitute a division of the lots as provided in 165- 54(D)(1)(c) of the Ordinance since the Preservation Tract will still be in excess of 40% of the original Parent tract. The total of the seven (7) lots after the boundary line adjustment will still be less than 60% of the original Parent Tract. The provisions in paragraph D (1) (a) that 40% must remain intact is still in compliance. It is apparent that if the ordinance is given a literal interpretation then only Preservation Tracts that are exactly 40% of the Parent Tract would be in compliance. The ordinance does not state a minimum of 40 Therefore, anything in excess of 40% would not be in compliance. The "no future division" is a reference only to the 40% requirement since a division of a Parent Tract that is at 40% would reduce the Preservation Tract below 40 To illustrate the consequences of a literal interpretation consider the following: Landowner owns 100 acres in R.A. and subdivides 4 lots at 2 acres per lot and designates 92 acres as Preservation Tract. Since 92% is not 40 the development should not be permitted. The literal interpretation is not within the intent of the ordinance. The ordinance should provide a minimum of 40% for the rural Preservation Tract. If not, then many of the plats already approved including the current one do not meet the 40% standard of 165.54(D)(a) since they are in excess of 40% The appellant is aggrieved since they cannot do a Boundary Line Adjustment on the property in question and, therefore, are unable to sell the additional acreage. Based upon the above, it is the landowner's request that he be permitted to enter into the Boundary Line Adjustment provided he meets the 40% requirement. Respectfully Submitted, Thomas J. Chasler TJC:wls n.r LAW OFFICE THOMAS I. CHASLER i.1 1, 203 EAST BOSCAWEN STREET .I WINCHESTER. VIRGINIA 32601 15101652 -1203 /1RGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF FREDERICK ROY R. BEATTY PATRICIA G. BEATTY Petitioners FREDERICK COUNTY BOARD OF ZONING APPEALS Respondent 11 PETITION FOR WRIT OF CERTIORARI COMES NOW the Petitioners, and petition this Court to issue a Writ of Certiorari to the I !Frederick- County Board of Zoning Appeals and prays this Court to review the Final Decision of I the Board.made on.March 15, 2005 regarding Appeal Application No. 03 -05 of Roy Beatty and I !Patricia Beatty. II I I I I amended. II 1 1 CASE NO L -05- As Grounds therefore, the Petitioners state as follows: 1 The Petition is filed pursuant to Virginia Code Section 15.2 -231 for 1950, as The.Petitioners are the property owners of 483452 acres identified as Tax Map I No. 59 -A -34 (Preservation Tract). 3. The Frederick County Board of Zoning Appeals applied erroneous principals of I i law in reaching their decision and misinterpreted the Frederick County Zoning Ordinance, in I I I.. particular Section 165 -54(D) as well as the Subdivision Ordinance. The Petitioners requested a Boundary Line Adjustment involving the Preservation tract, by adjusting the property line of Lot 3 and Lot 4 of Deer Ridge Estates. The emaining acreage of the Preservation Tract after the Boundary Line Adjustment would remain more than forty percent (40 of the Parent Tract. The Frederick County Board of Zoning Appeals (the Respondent herein) Ruled that the Rural Preservation Tract could not be reduced I by a Boundary Line Adjustment even though the remaining Preservation tract would be in I I excess of the forty percent (40 set aside requirement as provided under the Ordinance. il i 5. The Frederick County Board of Zoning Appeals committed plain error m I I I caking this decision and violated the purposes and intent of the Zoning Ordinance and that the I I Board's discretion is plainly wrong and to constitute arbitrary and capricious conduct constituting clear abuse of discretion. ,STATE OF VIRGLNIA City of Winchester, to -wit: Subscribed and sworn to before me this 24 day of March, 2005, by ROY R. BEATTY r and PATRICIA G. BEATTY. My Commission expires: 10 3/-06 Thomas J. Chasler VSB 14569 1 203 East Boscawen Street Winchester, Virginia 22601 i, (540) 662 -1203 j 1(540) 665 -9615 (facsimile) Counsel for Petitioners ROY R. BEATTY I�G PATRICIA G. BEATTY I certify that on this r day of March, 2005, a true copy of the foregoing was mailed to Robert T. Mitchell, Esquire, 9 East Boscawen Street, Winchester, Virginia 22601, Counsel for Frederick County Board of Zoning Appeals; and Lawrence Ambrogi, Esquire, 107 North KentStreet, Suite 202, Winchester, VA 22601, Commonwealth Attorney for Frederick County. .?r CERTIFICATE Thomas I. Chasler CERTIFIED MAIL December 28, 2004 Thomas J. Chasler 203 E. Boscawen Street Winchester, VA 22601 RE: Zoning Determination for Deer Ridge Estates Property Identification Number (s) (PIN): 59 -A -34 Zoning District: RA (Rural Areas) Dear Mr. Chasler: Sincerely, ik R. Ch- an Zoning Administrator MRC /dlw 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 letter is in response to your correspondence dated December 17, 2004, to the Zoning Administrator requesting a zoning determination on the above referenced property. In the correspondence, you indicated that this property is a rural preservation subdivision. This subdivision has been recorded and any changes to the preservation tract will not be allowed. In accordance with Section 165 -54 D (c) of the Frederick County Zoning Ordinance, the preservation tract will stay intact as recorded. Therefore, the proposed use in your correspondence will not be allowed. 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 decisionlshall 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. 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. August 12, 2002 Mr. Darren Foltz Greenway Engineering 151 Windy Hill Lane Winchester, VA 22602 RE: Deer Ridge Estates Rural Preservation Subdivision PIN: 59 -A -34 Dear Darren: This letter is to confirm that the preliminary sketch plan and final plats for Deer Ridge Estates Rural Preservation Subdivision have been approved. This subdivision allows for the development of seven residential lots containing a minimum of two acres each and a rural preservation parcel containing approximately 49 acres. The final plats were collected by you for recordation. Thank you for returning a copy of the recorded plats to our office. If you have any questions, please feel free to call. Sincerely, Patrick T. Davenport, CZA Zoning and Subdivision Administrator PTD /rsa cc: Jane Anderson, Real Estate Margaret Douglas, Back Creek District Supervisor Greg L. Unger, Back Creek District Commissioner Cordell Watt, Back Creek District Commissioner U: \Patrick \Common \S_D Reviews\Rural S_Ds\Deer Ridge Estates_final apprv.wpd 107 North Kent Street Winchester, Virginia 22601 -5000 COUNTY of FREDERICK Department of Planning and Development 540/665 -5651 FAX: 540/665-6395