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HomeMy WebLinkAbout15-05 Comments2Telephone: (540) 662 -1203 Facsimile: (540) 665 -9615 May 26, 2005 Frederick County Planning Dept. 107 N. Kent St. Winchester, VA 22601 RE: Oak Hill Grocery Appeal Dear Sir/Madam: Sincerely, Thomas J. Chasler TJC: afc Enclosures LAW OFFICE THOMAS J. CHASLER 203 EAST BOSCAWEN STREET WINCHESTER, VIRGINIA 22601 E -MAIL: tchasler@email.com Enclosed please find the Affidavit of Tina M. Geary to be added to the above referenced tile. 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: STATE OF KAY TRENT City /County of to -wit: Subscribed and sworn to before me this day of 2005, by KAY TRENT. My Commission expires: Notary Public Date: STATE OF City /County of AFFIDAVIT I, Tina M. Geary, do hereby state the following: 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. TINA M. GEARY Subscribed and sworn to before me this day of May, 2005, by Tina M. Geary. My Commission expires: Notary Public Telephone: (540) 662 -1203 Facsimile: (540) 665 -9615 May 19, 2005 Frederick County Planning Dept. 107 N. Kent St. Winchester, VA 22601 Thomas J. Chasler TJC: afc Enclosures LAW OFFICE THOMAS J. CHASLER 203 EAST BOSCAWEN STREET WINCHESTER, VIRGINIA 22601 'Ty PLE' MAIL:, tchasler©email.com RE: Oak Hill Grocery Appeal Dear Sir /Madam: Enclosed please find the Affidavit of Kay 'I rent to be added to the above referenced file. r 1 1 LAW OFFICE 2005 THOMAS J. CHASLER nUtq iY Telephone: (540) 662 -1203 Facsimile: (540) 665 -9615 May 18, 2005 Gentlemen: 203 EAST BOSCAWEN STREET WINCHESTER, VIRGINIA 22601 Frederick County Board of Zoning and Appeals 107 North Kent Street Winchester, Virginia 22601 This is an appeal of the Decision of Zoning Administrator dated April 19, 2005, in reference to the above. E -MAIL: tchasler ®email.com Oak Hill Grocery is in a rural agricultural area. The current business includes groceries, miscellaneous retail sales and adult oriented videos and novelties. By letter of April 4, 2003, the above uses were recognized as a legal nonconforming use. The building consists of an upstairs and downstairs. The entire upstairs and a portion of the downstairs have been used for business purposes. Two Affidavits in blank form are attached and Affidavit 1 is to be executed by the prior owner who is out of state. Affidavit 2 will be executed. When received, they will be filed with the Planning Department. The store has requested permission to expand the downstairs from two (2) rooms to the entire lower level. I have attached a schematic drawing of the store which indicates in hatch marks fi the prior owner which parts were used primarily for business. The expanded portion would have the same intensity of nonconformity of use as the rest of the nonconforming use. On the lower level, 424 square feet had primarily been used for business in the past and the expansion requested is 675 square feet which is the balance less 60 square feet for the bathroom. Section 165- 151(c) of the Frederick County Code permits a nonconforming use not described in either 165- 151(A) or 165- 151(B) to expand one time provided that the degree of nonconformity is not increased nor that the expansion results in more than fifty percent (50 of the current square footage but not to exceed 2,000 square feet. The square footage requested is far less than fifty percent (50 and the degree of nonconformity is the same. On this basis, the applicant appeals the decision of the Zoning Administrator and his failure to permit the expansion. Sincerely, hom. J. Chaster TJC:wls j MAY 8 2005 1-°' 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 16683 ZONING 165 -153 gross floor area for structures and total land 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 gyyn no nconforming use or structure was destroyed or damaged if requested by the er. All legally nonconforming signs that are destroyed or damag r., any Tanner may be repaired or restored only if all work is completed within six 911 from the date the legally nonconforming sign was destroyed or 9 20 2002 CERTIFIED MAIL April 19, 2005 Thomas J. Chasler 203 E. Boscawen Street Winchester, VA 22601 RE: Zoning Determination 2708 Berryville Pike (Oak Hill Grocery) Property Identification Number (s) (PIN): 55 -A -169 Zoning District: RA (Rural Areas) Dear Mr. Chaster: RECf•'ED AP? 2 0 2005 COUNTY of FREDERICK Department of Planning and Development 540/665 -5651 FAX: 540/665 -6395 This letter is in response to your correspondence dated April 5, 2005 to the Zoning Administrator requesting a zoning determination on the above referenced property. In the correspondence, you indicated the owner would like to expand this non conforming use to add individual viewing booths associated with the 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; however, 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, the continued operation of 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. Any change of this use may result in a zoning violation being issued. 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. Once the appeal application is accepted, it will be scheduled for public hearing and decision before the BZA. 107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000 Page 2 Thomas J. Chasler Re: Zoning Determination 2708 Berryville Pike April 19, 2005 Contact me regarding any questions you may have at (540) 665 -5651. Sincerely, Mark R. Cheran Zoning Administrator MRC /dlw