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Home My WebLink About15-05 ApplicationAPPEAL APPLICATION #15 -05 OAK HILL GROCERY, INC. Staff Report for the Board of Zoning Appeals Prepared: July 11, 2005 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: July 19, 2005 Pending LOCATION: The property is located at 2708 Berryville Pike MAGISTERIAL DISTRICT: Red Bud PROPERTY ID NUMBER(S): 55 -A -169 PROPERTY ZONING USE: Zone: RA (Rural Areas) District Land Use: Miscellaneous Retail (Country Store) ADJOINING PROPERTY ZONING USE: Zone: RA (Rural Areas) Land Use: Residential Zone: RA (Rural Areas) Land Use: Residential Zone: RA (Rural Areas) Land Use: Residential Zone: RA (Rural Areas) Land Use: Residential DE AD APPEAL: To appeal the decision ofthe Zoning Administrator in the administration ofthe Frederick County Zoning Ordinance pertaining to legal non conforming land use in the RA (Rural Areas) District. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator pertaining to non conforming land uses in the RA District. The applicant contends that the store has not exceeded the ordinance requirement allowing a non conforming use to expand fifty (50 percent of the original store square footage. Appeal Application #15 -05. Oak Hill Grocery, Inc. July 11, 2005 Page 2 STAFF COMMENTS: The applicant is appealing the decision of the Zoning Administrator regarding expansion of this non conforming use to add individual viewing booths associated with adult- oriented videos. This property currently operates miscellaneous retail sales, adult- oriented videos, and novelties. The RA (Rural Areas) Zoning District generally does not allow these types of businesses; research of County records indicates that the current business functions existed prior to the adoption of the applicable zoning regulations that would have prohibited this current use. Therefore, this business constitutes a legal non conforming land use. The adult oriented videos and novelties function of the existing store is not permitted to expand beyond its current floor area. Any expansion from the current floor area devoted to adult- oriented videos, novelties, and or adding viewing booths, will not be allowed. This proposed expansion is beyond what the ordinance allows of fifty (50 percent (165 -151 (c)). Staff research has concluded that the original structure was used as a store (2 level) and a residence (1'' level). The 2 level is approximately 1,000 sq. ft. in area. Therefore, the fifty (50 percent that is allowed by Section 165 -151 would limit the storage on the lower level to 500 sq. ft as presently used. The Frederick County Zoning Ordinance has allowed country general stores in the RA Zoning District since the adopted zoning in 1967. The ordinance clearly defines country stores to sell groceries and a variety of retail goods. This definition does not include adult video viewing booths for private viewing. The 1967 and current definitions ofa country store are included in your agenda (Exhibit #1 #2) Adult- oriented businesses are allowed in the B -2 (General Business) Zoning District with a Conditional Use Permit (CUP). Should the owner want to expand this use on the property, a request to rezone the property to the B -2 (General Business) Zoning District with a Conditional Use Permit (CUP) would be appropriate. STAFF CONCLUSIONS FOR THE JULY 19, 2005 MEETING: Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance regarding legal non- conforming land use in the RA (Rural Areas) Zoning District; that this expansion to add private video booths for adult oriented videos is not allowed in the RA Zoning District. 165 -150 FREDERICK COUNTY CODE 165 -151 165 -150. Reestablishing discontinued legally nonconforming use. Any use that was legally nonconforming under the provisions of this article and that was discontinued due to abandonment may be reestablished by obtaining a conditional use permit. Such conditional use permit shall be granted only for a use that is of equal or lesser nonconformity than the original use in relation to intensity, type of use, dimensional requirements or other requirements. Such requests to reestablish an abandoned use shall be considered following the procedures for conditional use permits in this chapter. 165 -151. Expansion and modifications. A. Legally nonconforming uses, structures, and signs listed below may not expand. These uses and structures may be modified if the result decreases the degree of nonconformity. (1) Landfills. (2) Junkyards. (3) Trash heaps. (4) Automobile graveyards. (5) Signs. B. Legally nonconforming uses listed below may expand or modify one time if the expansion or modification does not increase the degree of nonconformity and does not expand beyond 3,500 square feet or 50 whichever is less. Measurements shall be based on gross floor area for structures and total land area for uses. (1) Parking lots. (2) Driveways. (3) Loading areas. (4) Outdoor storage and processing areas. (5) Outdoor display areas. C. All legally nonconforming uses and structures not specified in §165 -151A or §165 -151B may expand or modify one time if the expansion or modification does not increase the degree of nonconformity, and does not result in an overall expansion of more than 2,000 square feet or 50 Measurements shall be based on 16682 9 20 2002 165 -151 ZONING 165 -153 gross floor area for structures and total and area for uses. Legally nonconforming residential structures may expand beyond 2,000 square feet or 50% if the expansion or modification does not increase the degree of nonconformity. The Zoning Administrator may allow the expansion of legally nonconforming structures and the construction of new structures with the same setback of the existing legally nonconforming structure, provided that all other conditions of the Frederick County Zoning Ordinance are met. D. Whenever a nonconforming use is changed to another use, it shall only be changed to a use that is of equal or less nonconformity in terms of the type or intensity of the use. E. A legally nonconforming use or structure that is located within the floodplain districts may be expanded one time, provided that they meet the conditions set forth in this article as well as Article XV, 165 -116, of this chapter. 165 -152. Legally nonconforming lots of record. Any lot of record at the time of the adoption of this chapter, which is less in area or frontage than the requirements of this chapter, may be used for uses allowed by this chapter when yard and setback requirements are met. The current setbacks for the particular Zoning District in question are to be applied for all lots, unless the most recent legally approved and recorded plat of the property clearly depicts all appropriate terminology and numeric information for different setbacks. 165 -153. Restoration or replacement. If a legally nonconforming use or structure is destroyed or damaged in any manner, it may be repaired or restored, provided any such repair or restoration is completed within 12 months from the date the legally nonconforming use or structure was destroyed or damaged. The Planning Commission may approve a waiver to allow an extension up to 18 months from the date the legally nonconforming use or structure was destroyed or damaged if requested by the owner. All legally nonconforming signs that are destroyed or damaged in any manner may be repaired or restored only if all work is completed within six months from the date the legally nonconforming sign was destroyed or damaged. 16683 9 20 2002 gl EXHIBIT 1 area of one hundred (100) square feet or more tying witnin one tnousand (1, 000) feet of a State highway, a residence, a dairy barn or food handling establishment d e r e deposite trash, garbage or other waste or scrap material is dump without being covered by a sanitary fill. 16 -25. FAMILY: One or more persons occupying a premises and living in a single dwelling unit, as distinguished from an un elai ted grovel. occupying a boarding house, lodging house, 16 -26. FRONTAGE: The minimum width of a lot measured from one side lot line to the other along a straight line an which no p oint shall be farther away from the street upon which the lot fronts than the build- ing setback line as defined and required herein. 16 -27. GARAGE, PRIVATE: Accessory building designed or used for the storage of not more than three (3) automobiles owned and On used by private the occupants of the building to which it is a c c garage may occupied by a multiple -unit dwelling, the p times as many automobiles as storage of one are dwellingunits. one-half (1-1/2) 16 -28. GARAGE, PUBLIC: A building or portion thereof, other thequipping, private garage, designed or used for servicing, repairing, renting, selling, or storing motor- driven vehicles. GENERAL STORE, COUNTRY: A single store, the ground floor 16-29 GENERAL 000) square feet or less and which `�q area of which is four thousand (4, offers for sale primarily, most of the following articles: boeadoducts, milk, cheese, canned and bottled foods and drinks, candy, papers and magazines, and general hardware articles. Gaso- line may also be offered for sale, but only as a secondary activity of a country general store. 16 -30. GOLF COURSE: Any golf course, publicly or privately owned, on which the game of golf is played, including accessory uses and build- ings customary thereto, but excluding golf driving ranges as defined herein. 16 -31. GOLF DRIVING RANGE: A limited area on which golf players do not walk, but onto which they drive golf balls from a central driving tee. 16 -32. GOVERNING BODY: The governing body of Frederick County, Virginia. 16 -33. GUEST ROOM: A room which is intended, arranged or designed to be occupied, or which is occupied, by one or more guests paying direct or indirect compensation therefor, but in which no provision is made for cooking. Dormitories are excluded. 40 Vi tiate 16. Definitions 16 -34 16 -3! 16 -3 16- 16 11 1 EXHIBIT 2 165 -156 FREDERICK COUNTY CODE 16692 165 -156 CONICAL SURFACE A surface extending horizontally 20 feet for every one foot vertically from the periphery of the horizontal surface. CONTIGUOUS Next to, abutting, or touching and having a boundary, or portion thereof, that is coterminous. [Added 9 12 20011 CONTRIBUTING STRUCTURE OR SITE A structure or site within an HA District, at least 50 years of age, which possesses historical, architectural or cultural significance and has not been physically altered enough to substantially detract from its historical integrity. In addition, structures or sites at least 50 years of age which might not possess significant merit when considered alone may be considered contributing if they have significance relative to their patterns of development and /or their relationships with landmarks, buildings, structures or sites determined to be of historical, cultural and /or architectural significance. CONVALESCENT AND NURSING HOMES An extended- or intermediate -care facility licensed or approved to provide full -time convalescent or chronic care to individuals who, by reason of advanced age, chronic illness or infirmity, are unable to care for themselves. COTTAGE OCCUPATION An occupation or profession customarily carried on in a dwelling unit or an accessory building, which: A. Actually is carried on wholly within the principal residential building or an accessory building or structure; B. Is carried on by no more than one person other than members of the family residing on the premises; and C. Is clearly incidental and secondary to the use of the dwelling unit for residential purposes. COUNTRY GENERAL STORE— A retail business allowed where 'specified in the rural zoning districts which sells groceries along with a variety of other retail goods. DAIRY A commercial establishment for the manufacture and sale of dairy products. DAY -CARE FACILITY A facility in which more than five children, not including children who are related by blood, marriage or adoption to 10 -25 -2001 ERSHIP 55 A 170 BRAGG, DAVID Map Features Bricges B APPIic on Culverts Lakes/Ponds Dams 55 A 174E BLUE RIDGE ASSOCIATES O Parcels Agricultural Forestral Districts Streams Retaining Wells Double Church I.I Buildings Road Centerlines Refuge Church Tanks South Frederick Trails 0 25 50 Feet Appeal 15 05 Oak Hill Grocery (55 -A -169) 100 55 A 167 BLUE RIDGE ASSOCIATES 1 55 A 174p ns ur ntnnr a nnrl, 9 Ape licabon Lakes/Ponds r..— Streams Buildings Map Features N Bridges Culverts Darns Agricultural Forostral Districts Retaining Wells IN Double Church Road Centerlines Refuge Church U South Frederick N Trais Appeal 15 05 Oak Hill Grocery (55 -A -169) 0 25 50 100 Feet APPLICATION FOR APPEAL IN THE COUNTY OF FREDERICK, VIRGINIA MUST BE TYPED OR FILLED OUT IN INK PLEASE PRINT 1. The applicant is the owner X other (Check one) and President of Corporation which manages the business. OCCUPANT: (if different) 2. APPLICANT: Myron L. Ace NAME: Lorie M. Ace NAME: Oak Hill Grocery, Inc. ADDRESS 197 NE 3rd Street Bend, Oregon 97701 TELEPHONE: (541) 322 0240 TELEPHONE: (540) 678 0156 3. The property is located at (give exact directions and include State Route numbers): Route 7 East 2708 Berryville Pike, on right hand side 4. Magisterial District: Red Bud 5. Property Identification No.: 55 -A -169 ADDRESS: 2708 Berryville Pike Winchester, VA 22602 NW a r YAPS 6. The existing zoning of the property is: 7. The existing use of the property is: 8. Adjoining Property: North East South West USE Raw land Residence Raw land Rental /Residence See attached letter. 11. Additional comments, if any: RA Grocery and Video Upstairs Downstairs Part business /Part resideiittal ZONING RA RA RA RA 9. Describe the decision being appealed. (Attach a copy of the written decision.) See attached letter and attached letter of April 19, 2005. 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) David Bragg Address P.O. Box 174, Clearbrook, VA 22624 Property ID 55 170 Brian Scott Williamson Address 2718 Berryville Pike, Winchester, VA 22603 Property ID 55 A 168A Phyllis B. Holtkamp, et al Addres 8225 Cambourne Ct, Gaithersburg, MD 20877 Property ID 55 174 Willi A Maria H. Balling Address 111 Burnt Factory Rd., Stephenson, VA 2265 Property ID 55 147 Blue Ridge Associates Address 2430 -3 Berryville Pk., Winchester, VA 2260` Property ID 55- A -174E George G. Bradfield John G. Bradfield Philip Bradfield Address 8225 Cambourne Court, Gaithersburg MD 2087; Property ID 55 -A -174 Address Property ID Address Property ID Address Property ID Address Property ID Address Property ID 12. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the appeal 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: (Please list Property Identification Number.) NAME AGREEMENT APPEAL a5J I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions 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 hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF APPLICANT 4 /L ti Li DATES s D 3 SIGNATURE OF OWNER LO•IE M. ACE (if other than applicant) BZA PUBLIC HEARING OF APPEAL OVERRULED File. 0.uand Use Applications Application Forms APPEAL Acvised 01 /14103 OFFICE USE ONLY- //o i4Bckb ACTION: DATE- 7 APPEAL SUSTAINED SIGNED,' BZA CH RMAN DATE: q I Ig o5 ATE Department of Planning Development, County of Frederick, Virginia, 107 North Kent Street, Winchester, Virginia 22601 Phone 540 -665 -5651 Facsimile 540 665 -6395 Know All Men By Those Present: That I (We) (Name) Myron L. Ace and Lorie M. Ace (Address) 197 NE 3rd Street, Bend, Oregon 97701 the owner(s) of all those tracts or parcels of land "Property") conveyed to me (us), by deed recorded in the Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by Instrument No 63 2 2 on Page cb (b and is described as y2 ttejle-'" `u`'LT-/' fir' araP S4-✓mA as, pd 914. cv Parcel: Lot: Block: Section: Subdivision: do hereby make, constitute and appoint: (Name) Aroa 5 5 646 S tec (Phone)PC- 6 6 L- 2 (Address) 0 A 4 7 6 S 4 3 e ST: t.O 1/0(11.05 -7 7 4 (J To act as my true and law ul attorney -in -fact for and in my (our) name, place, and stead with full power and authority I (we) would have if acting personally to file planning applications for my (our) above described Property, including: [7/ Rezoning (including proffers) m Conditional Use Permits Master Development Plan (Preliminary and Final) Subdivision Site Plan Notary Public 111 005 OUNTY VELOPMENT Special Limited Power of Attorney County of Frederick, Virginia rederick Planning Web Site: www.co.frederick.va.us My attorney -in -fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modified. In witness thereof, I (w- a eto set my (our) hand and seal this /S day of/0/4, 200 S�, °)77 C c 2 sion Expires: l HYDE NOTARY PUBLIC- OREGON 'Q' COMMISSION NO. 381050 O MY COMMISSION EXPIRES JUNE 20 2008 �.1 (Phone) (541) 322 -0240 ON L. ACE ORIE M. ACE State ofa a, City/County of I "79- Slh o t, a Notary Public in and for the jurisdiction aforesaid, certify that the person(s) who signed to the foregoing instrument personally appeared before me an .'has acknowledged the same before me in the jurisdiction aforesaid this day of fig• 200r To- ev\Spccial Limited POA.wpd q r), -O 0 V 00 0 CC Lti R .6l 0 Q „9 /6 9 S— 0 0 r 1 „8/9 9 DNS AS NA/11/80 .90 /11 /30S/0 Nb7d 73A37S3dd/7)U30O6' /HXVO 111 W0 Z/t Y.5— .o 6 U3 /HSI 7 OE Ltl 11 AFFIDAVIT I, Kay Trent, the prior owner of Oak Hill Grocery, Inc. used two of the rooms downstairs for business purposes related to the store. In my downstairs office, I had my computer /stored videos and did my record keeping. In the room east of this room which was made into a kitchen area I stored videos and materials. I have marked with cross hatches the areas used for the business. Date: 1 STATE OF City /C- ettnty of Subscribed and sworn to before me this day of My Commission expires: 2005, by KAY TRENT. Notary Public My Commission expires: 0 AFFIDAVIT I, Tina M. Geary, do hereby state the following: v That I have been employed by Oak Hill Grocery, Inc. for seven (7) years.' During that time, we have portions of the lower level that were used for business purposes. The Owner had her computer and business records and merchandise stored in one room. The kitchen area was used primarily for inventory storage. J Date: \.—i i TINA M. GEARY STATE OF 'litany A City/C-ePaty of jthindirda,_ Subscribed and sworn to before me this Qs day of May, 2005, by Tina M. Geary. Notary P lic 171 ARTNERSHIP 3E ASSOCIATES 55 A 170 BRAGG, DAVID e Applicalion Lakes/Ponds Steams Frrtr) Buildings in Tanks Map Features Bridges A/ Culverts Dams ,^ve Retaining Walls Road Centerlines 140 Trails Agricultural Forestal Districts 1.1 Double Church II B Refuge Church South Frederick Appeal 15 05 Oak Hill Grocery (55-A-169) 0 25 50 100 Feet 55 A 167 BLUE RIDGE ASSOCIATES Map Features S Bridges �Plica culverts LakesfPonds A/ Dams Streams Retaining Walls l y Buildings Road Centerlines A O In Tanks 0 Trails 0 Parcels Agricultural 0. Forestral Districts Double Church Refuge Church South Frederick Appeal 15 05 Oak Hill Grocery (55 -A -169) 0 25 50 Feet 100