HomeMy WebLinkAbout17-05 Comments Attorney letterHALL, MONAHAN, ENGLE, MAHAN 'MITCHELL
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
WILBUR C. HALL (1892
7 6 307 EAST MARKET STREET 9 EAST BOSCAWEN STREET
THOMAS V. MONAHAN (1924 -1999)
SAMUEL D. ENGLE LEESBURG, VIRGLNLA WINCHESTER, VIRGINIA
0. LELAND MAHAN TELEPHONE 703-777 -1050 TELEPHONE 540.662.3200
ROBERT T. MITCHELL, JR. FAN 540-662 -4304
.JAMES A. KLENKAR E MAIL lawyers@hallmonahan.mm
STEVEN F. JACKSON March 22, 2006
DENNIS J. MCLOUGHLIN, JR.
Mark R. Cheran, Zoning Administrator
County of Frederick
Department of Planning and Development
107 North Kent Street, Suite 202
Winchester, VA 22601 -5000
Dear Mark:
ATTORNEYS AT LAW
Re: Jeffrey and Peggy Howell ads. Board of Zoning Appeals of
Frederick County, Virginia, et al.
PLEASE REPLY TO:
R 0. Box 848
WINCHESTER, VIRGINIA 22604-0848
You will recall that Phillip Griffin, counsel for the Howells, filed a Notice
of Appeal to appeal the Circuit Court decision in favor of the BZA to the Supreme
Court of Virginia.
Griffin has now notified the Clerk that he will not be pursuing the appeal.
Accordingly, the Circuit Court Order in the case can now be considered final and
the case ended.
With kind regards, I am
RTM /ks
CC: Eric Lawrence, Director of Planning
John Riley, County Administrator
y
yours,
Robert T. Mitchell, Jr.
WILBUR 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.
HALL, MONAHAN, ENGLE, MAHAN MITCHELL
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
1 8 7 EAST MARKET STREET
LEESBURG, VIRGINIA
TELEPHONE 703 777-1050
ATTORNEYS AT LAW
January 11, 2006
O EAST BOSCAWEN STREET
WINCHESTER, VIRGINIA
TELEPHONE 540602-3200
FAX 540.662.4304
E -MAIL lawyers@hallmonahan.com
P. 0. Box 848
WINCHESTER, VIRGINIA 22604
Mark R. Cheran, Zoning Administrator
County of Frederick
Department of Planning and Development
107 North Kent Street, Suite 202
Winchester, VA 22601 -5000
Re: Jeffrey and Peggy Howell ads Board of Zoning Appeals of
Frederick County, Virginia, et al.
JAN 7 2 2005
PLEASE REPLY TO:
Dear Mark:
Counsel for the Howells have filed a Notice of Appeal in the Circuit Court
case dismissed by Judge Prosser on my motion. You will find enclosed a copy of
the Notice of Appeal which has been filed.
The Petitioners will have to file a Petition for Appeal with the Supreme
Court of Virginia within 90 days of December 6, 2005. Thereafter, I will file a
brief in opposition to the Petition for Appeal, after which the Supreme Court of
Virginia will decide whether to take the case on appeal.
If there are any questions concerning the foregoing, please contact me.
Mark R. Cheran
January 11, 2006
Page 2
HALL, MONAHAN, ENGLE, MAHAN MITCHELL
With kind regards, I am
RTM/ks
Enclosure
CC: Eric Lawrence, Director of Planning
John Riley, County Administrator
r Vzryyl y yours,
11, Jr.
Robert T. Mite
v.
VIRGINIA: IN THE SUPREME COURT OF THE COMMONWEALTH OF VIR €NI 2006
FROM THE CIRCUIT COURT FOR THE COUNTY OF FREDERICK
JEFFREY PEGGY HOWELL,
FREDERICK CO. CIRCUIT COURT
Petitioners /Appellants, AT LAW NO.: CL -05 -181
BOARD OF ZONING APPEALS OF FREDERICK
COUNTY, VIRGINIA, et. al.
Respondents /Appellees.
NOTICE OF APPEAL
The Petitioners /Appellants, Jeffrey and Peggy Howell, by counsel, Phillip S. Griffin, II,
Esquire, hereby appeals to the Supreme Court of Virginia, pursuant to Rule 5:9, from the Order of
this Court entered on December 6, 2005 under docket number CLO5 -181.
A transcript or written statement of facts, testimony, and other incidents of this case will be
Cc
U presented to the Clerk of the Frederick County Circuit Court within fifty -five (55) days after the
entry of final Judgment pursuant to the Rules of the Supreme Court 5:10 and 5:11, if necessary.
CERTIFICATE
The undersigned certifies as follows:
1. The name and address of the appellants are Jeffrey and Peggy Howell, 128 Deep
Pine Court, Gore, VA 22637 in Frederick County.
2. The name, address, and telephone number of Counsel for appellants is
Phillip S. Griffin, II, Esquire, Phillip S. Griffin, P.C., 102 South Kent St.,
Winchester, VA 22601, and the telephone number is (540) 667 -4647.
3. The name, address and telephone number of Counsel for appellees is Robert T.
Mitchell, Esquire; Hall, Monahan, Engle, Mahan, Mitchell, P.C.; 9 East Boscawen
Street, P.O. Box 848; Winchester, VA 2204 -0848, and (540) 662 -3200.
4. Counsel for Appellants will file, with the Frederick County Circuit Court Clerk, a
written statement of facts, testimony, and other incidents of the case within fifty-Five
and
Phillip S. Griffin, II, Esquire
Phillip S. Griffin, II, P.C.
VSB# 34576
102 South Kent Street
Winchester, VA 22601
T: (540) 667 -4647
F: (540) 667 -4711
Counsel for Petitioners /Appellants
(55) days after entry of judgment, or a copy of the proceedings transcribed by a court
reporter according to Rule 5:9.
5. A copy of this Notice of Appeal has been mailed or delivered to
opposing counsel and the Supreme Court of Virginia, and filed with the Frederick
County Circuit Court Clerk, on this 4 day of January, 2006.
Via Fed Ex to:
The Supreme Court of Virginia
Office of the Clerk, 5 Floor
100 N. 9` Street
Richmond, VA 23219
JEFFREY PEGGY HOWELL
By:
Certificate
I, Phillip S. Griffin, Counsel for Petitioners /Appellants, do hereby certify that on this 4 day
of January 2006, I did mail, via U.S. First Class, postage prepaid, a true and correct copy of the
foregoing Notice of Appeal to:
Robert T. Mitchell, Esquire
Hall, Monahan, Engle, Mahan, Mitchell, P.C.
9 East Boscawen Street
P.O. Box 848
Winchester, VA 22604 -0848
Phi ip S. Griffin, [I
JEFFREY AND PEGGY HOWELL
Petitioners,
V S.
VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF FREDERICK
BOARD OF ZONING APPEALS OF'
FREDERICK COUNTY, VIRGINIA, et. al.,
and
THE COUNTY OF FREDERICK,
and
MARK R. CHERAN,
FREDERICK COUNTY ZONING ADMINSTRATOR
Respondents.
SERVE: Ms. Theresa B. Catlett,
Chairperson, Board of Zoning Appeals
107 North Kent Street, Suite 202
Winchester, VA 22601
SERVE: Lawrence Ambrogi, Esquire
County Attorney for Frederick County
107 North Kent Street
Winchester, VA 22601
SERVE: The County of Frederick, Virginia
c/o Robert Mitchell, Esquire
Attorney for Frederick Co. Board of Zoning Appeals
107 North Kent Street,
Winchester, VA 22601
SERVE: Mark R. Cheraw, Zoning Administrator
County of Frederick, Virginia
107 North Kent Street, Suite 202
Winchester, VA 22601
CASE NUMBER: L05- /8
(BZA CASE #17 -05)
WRIT OF CERTIORARI
TO: THE FREDERICK COUNTY, VIRGINIA, BOARD OF ZONING APPEALS
THIS CAUSE came to be heard upon the Petition of Jeffrey and Peggy Howell, by
Counsel, Phillip S. Griffin, II, Esquire, for a Writ of Certiorari to review the decision of the
Board of Zoning Appeals (BZA of Frederick County, Virginia, on July 19, 2005 which
became final not earlier than July 19, 2005, in Case No. 17 -05 concerning the BZA's decision
concerning the interpretation of Section 165 -76 of the Frederick County Zoning Ordinance of the
Frederick County Code and its application to the zoning and subdivision of the real property with
the Property Identification Number 17 -4 -44, in the Gainesboro Magisterial District.
AND IT APPEARING TO THE COURT that said Petition was filed pursuant to Section
15.2 -2314 of the Virginia Code, and that under said section the issuance of a Writ of Certiorari is
mandatory and Petitioners are proper parties to this case, it is hereby ORDERED, that the
Petition for a Writ of Certiorari is hereby GRANTED to review the decisions of the Board of
Zoning Appeals of Frederick County, Virginia on July 19, 2005, in Case No. 17 -05, and it is
FURTHER ORDERED, ADJUDGED, AND DECREED that on or before the
day of 2005, the BZA be, and it hereby is, ordered and directed to answer
this petition and certify and make return to this Court as provided by law a full, true and
complete record of the aforementioned proceedings, including, but not limited to, the original or
a verified copy of the following:
1. The application for appeal and all other related filings;
2. All plats, video tapes, or other exhibits or correspondence, filed in support of, or
in opposition to the application;
3. All minutes of the meetings of the BZA where the subject appeal was heard and
considered;
4. Transcripts of any recordings made of the hearings held before BZA in this
matter:
5. Any exhibits and documents filed in the appeal proceedings;
2
6. Any staff reports, agenda, or recommendations;
7. A copy of the Frederick County Zoning Ordinance in effect on January 1, 1994;
8. A concise statement of the facts that may be pertinent and material to show the
grounds of the decision appealed from.
IT IS FURTHER ORDERED, that the Clerk of the Court serve a certified copy of this
Writ to Theresa B. Catlett, Chairperson of the BZA at 107 North Kent Street, Suite 202,
Winchester, Virginia 22601, and Robert Mitchell, Esquire, Counsel for the BZA, at 107 North
Kent Street, Winchester, Virginia 22601, and Lawrence Ambrogi, Esquire, Counsel for Frederick
County at 107 North Kent Street, Winchester, Virginia 22601, and Mark R. Cheran, Zoning
Administrator for Frederick County, at 107 North Kent Street, Suite 202, Winchester, Virginia
22601; and to Counsel for Petitioners, Phillip S. Griffin, II, Esquire.
AND THIS CASE IS CONTINUED.
ENTERED: this day of 2005.
I ASK FOR THIS:
Phillip S. Griffin, II, Esquire #34576)
Phillip S. Griffin, II, P.C.
102 South Kent Street
Winchester, VA 22601
(540) 667 -4647 (PHONE)
(540) 667 -4711 (FAX)
3
JUDGE
Clerk of Court: Rebecca P. Hogan
Instructions:
Frederick County Circuit Court
Law Division
5 N. Kent Street
Winchester, Virginia 22601
540- 667 -5770
Generic Service
By:
Attorney's name: PETER THOS.HANSEN
PHILLIP S. GRIFFIN II PC
102 S. KENT STREET
WINCHESTER, VA. 22601
VIRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF FREDERICK
JEFFREY AND PEGGY HOWELL
Petitioners,
V s.
BOARD OF ZONING APPEALS OF
FREDERICK COUNTY, VIRGINIA, et. al.,
and
THE COUNTY OF FREDERICK,
and
MARK R. CHERAN,
FREDERICK COUNTY ZONING ADMINSTRATOR
Respondents.
SERVE: Ms. Theresa B. Catlett,
Chairperson, Board of Zoning Appeals
107 North Kent Street, Suite 202
Winchester, VA 22601
SERVE: Lawrence Ambrogi, Esquire
County Attorney for Frederick County
107 North Kent Street
Winchester, VA 22601
SERVE: The County of Frederick, Virginia
c/o Robert Mitchell, Esquire
Attorney for Frederick Co. Board of Zoning Appeals
107 North Kent Street
Winchester, VA 22601
SERVE: Mark R. Cheran, Zoning Administrator
County of Frederick, Virginia
107 North Kent Street, Suite 202
Winchester, VA 22601
CASE NUMBER: L05- /8
(BZA CASE #17 -05)
PETITION FOR A WRIT OF CERTIORARI
COME NOW, the Petitioners, Jeffrey and Peggy Howell, by counsel, Phillip S.
Griffin, II, Esquire, pursuant to Section 15.2-2314 of the Virginia Code, and petitions this Court
to issue a Writ of Certiorari to review a decision by the Respondent, Board of Zoning Appeals
("BZA") of Frederick County, Virginia.
In support thereof, the Petitioners state the following:
1. By letter from the Frederick County Department of Planning and Development
dated April 27, 2005, Petitioners, Jeffrey and Peggy Howell, were notified they were in violation
of Section 165 -76 of the Frederick County Zoning Ordinance. Specifically, Petitioners were
found in violation of housing agricultural animals (horses) on the property located at 128 Deep
Pine Court, Gore, Virginia of the Timber Ridge Farms Subdivision.
2. By letter dated May 27, 2005, Petitioners, Jeffrey and Peggy Howell, requested
from Respondent, Mark R. Cheran, Zoning Administrator for Frederick County, a zoning
determination related to the Timber Ridge Farms Subdivision, wherein they requested an
interpretation of Section 165 -76 of the Frederick County Zoning Ordinance, for "permitted uses"
in the Residential Recreational Community (R5) District. The subject property is located at 128
Deep Pine Court, tax identification number 17 4 44, in the Gainesboro Magisterial District.
3. After a public hearing before the Board of Zoning Appeals on July 19, 2005, Mr.
and Mrs. Howell's appeal was denied by letter dated Judy 20, 2005, and signed by Mark R.
Cheran, Zoning Administrator.
4. Respondent, Frederick County, is the local government entity in Frederick
County, Virginia that is charged under the provisions of the Constitution and statutes of the
Commonwealth of Virginia including Chapter 22 of Title 15.2 of the Code of Virginia and the
Zoning Ordinance of Frederick County with the regulation of land development, land use, and
the promulgation of the local ordinance and their interpretation.
5. Pursuant to Section 15.2 -2311 of the Code of Virginia, by letter and application
dated May 27, 2005, Petitioners appealed the determination of the Zoning Administrator
to the Board of Zoning Appeals of Frederick County, Virginia, contenting that the correct
interpretation of Section 165 -76 for permitted uses allowed horses to be kept on the
Timber Ridge Farms Subdivision property.
6. The Respondent, BZA is a creature of statute and is authorized to hear and decide
appeals from any order, requirement, decision, or determination made by the Zoning
Administrator.
7. The BZA's affirmed the decision of the Zoning Administrator following a Public
Hearing on July 19, 2005.
8. The BZA's final decision in Case No. 17 -05 was accordingly made on July 19,
2005 and became final upon the filing of that decision in the office of the BZA riot earlier than
that day. Accordingly, this Petition is timely filed within thirty (30) days of the filing of that
decision in the office of the BZA as provided in Virginia Code Section 15.2 -2314.
9. Petitioners are aggrieved by and hereby appeal the BZA's decision in the
aforementioned Case No. 17 -05:
10. The BZA's decision interpreted Section 165 -76 of the Frederick County Code in
a manner that is erroneous and plainly wrong.
11. According to the Timber Ridge Farms Homeowner's Association Rules and
Regulations, as accepted by Frederick County in 1978, specifically i G, allowing "fowl, horses,
ponies, and not more than two heads of cattle," on the Timber Ridge Farms Subdivision
property, Petitioners are not in violation of any Frederick County laws or ordinances.
12. The BZA's decision in case No. 17 -05: (1.) is plainly wrong, (2.) applied
erroneous principles of law and statutory construction; and (3.) is a violation of the purpose and
intent of the ordinance.
WHEREFORE, Petitioners are aggrieved by the decision of the BZA in Case. No. 17 -05
and respectfully request the following:
A. That the Court issue a Writ of Certiorari in the form attached hereto and
that the same be served upon the BZA requiring that a verified return be
made within thirty (30) days of originals or certified copies of all
exhibits, transcripts of the hearing, and other papers considered by the
Respondent, BZA, in making its decisions in Case No. 17 -05, and that
such return shall concisely relate such facts that may be pertinent and
material to show the grounds of the decision appealed from.
B. That the Court schedule a hearing on this matter and take such testimony
and receive such evidence necessary for the proper disposition of this
Petition.
C. That the Court reverse the decision of the BZA in Case No. 17 -05.
D. That the Court grant Petitioners such other and further relief as it may
deem appropriate.
Phillip S. Griffin, II, Esquire (#34576)
Phillip S. Griffin, I1, P.C.
102 South Kent Street
Winchester, VA 22601
(540) 667 -4647 (PHONE)
(540) 667 -4711 (FAX)
4
JEFFREY PEGGY HOWELL
By:
Phillip S. Griffin, Esquire
102 S Kent St.
Winchester, VA 21601
RE: APPEAL APPLICATION #17 -05 OF JEFFREY AND PEGGY HOWELL
Dear Mr. Griffin:
This letter is to confirm that the above- referenced appeal application was denied by the Board of
Zoning Appeals at their meeting on July 19, 2005. This denial was of request 417-05, to appeal the
decision of the Zoning Administrator pertaining to permitted uses in the R5 (Residential Recreational
Community) District. The subject property is located at 128 Deep Pine Court, identified by Property
Identification Number 17 -4 -44 in the Gainesboro Magisterial District.
The decision of the Board of Zoning Appeals may be appealed to the Circuit Court of Frederick
County within 30 days of the Board's decision. If you have any questions regarding this action.
please feel free to call this office.
Sincerely,
arl R_, Cheri
Zoni nu and Subdivision Administrator
cc: Jeffrey and Peggy Howell. 128 Deep Pine Ct.. Gore, VA 22637
MRC/bhd
Department of Planning and Development
540/665 -5651
FAX: 540/665-6395
107 North Kent Street, Suite 202 Winchester. Virginia 22601-5060
COUNTY of FREDERICK
CERTIFICATE OF SERVICE
The undersigned does hereby certify that on the J9'day of August 2005, the foregoing
Petition for Writ of Certiorari and proposed Writ of Certiorari was mailed, U.S. 1'` class, postage
prepaid to:
Ms. Theresa B. Catlett,
Chairperson, Board of Zoning Appeals
107 North Kent Street, Suite 202
Winchester, VA 22601
Lawrence Ambrogi, Esquire
County Attorney for Frederick County
107 North Kent Street
Winchester, VA 22601
The County of Frederick, Virginia
c/o Robert Mitchell Esquire
Attorney for Frederick Co. Board of Zoning Appeals
107 North Kent Street
Winchester, VA 22601
Mark R. Cheran, Zoning Administrator
County of Frederick, Virginia
107 North Kent Street, Suite 202
Winchester, VA 22601
Plu ip S. Griffin, 11, Esquire
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