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HomeMy WebLinkAbout08-06 Comments AttorneyWILBUR C. HALL (1892 THOMAS V. MONAHAN (1924 1999) SAMUEL D. ENGLE 0. LELAND MAHAN ROBERT T. MITCHELL, JR. JAMES A. KLENKAR STEVEN F. JACKSON HALL, MONAHAN, ENGLE, MAHAN MITCHELL 7 S 307 EAST MARKET STREET LEESBURG, VIRGINIA TELEPHONE 703 -777 1050 Mr. Mark R. Cheran, Zoning and Subdivision Administrator County of Frederick 107 North Kent Street Winchester, VA 22601 Re: Arogas, et al v. Frederick County BZA and BOS Dear Mark: As I previously advised you, the Court reversed the decision of the BZA for the limited reason that, as a procedural matter, the Zoning Administrator erred in not accepting the site plan application for review. A Final Order reflecting the Court's ruling has now been entered, and you will find enclosed a copy of the Final Order. It is my understanding that Arogas has not refiled its site plan application. In fact, counsel for Arogas has indicated that Arogas will appeal the case to the Supreme Court of Virginia to contest the Court's earlier ruling sustaining our demurrer that there was no legal basis to find the rezoning proffer to be invalid. I will keep you advised with respect to developments concerning the appeal. In the meantime, should you have any questions, please do not hesitate to contact me. With kind regards, 1 am A PARTNERSHIP OF PROFESSIONAL CORPORATIONS ATTORNEYS AT LAW May 7, 2009 RTM/ks Enclosure CC: Roderick B. Williams, County Attorney 5 EAST BOSOAWEN STREET WINCHESTER, VIRGINIA TELEPHONE 540562 -3200 FAX 540- 652 4304 E -MAIL IawyerS @hallmonahan.com ly yours, Robert T. Mitchell, Jr. MAY 8 2009 PLEASE REPLY TO: P. 0. Box 848 WINCHESTER, VIRGINIA 22604 -0848 RTM /ks 10/21/08 VIRGINIA: MAY 8 2009 IN THE CIRCUIT COURT OF FREDERICK COUNTY AROGAS, INC. AND PAT MANNING, Petitioners, v. CASE NO. 06 -580 FREDERICK COUNTY BOARD OF ZONING APPEALS AND FREDERICK COUNTY BOARD OF SUPERVISORS, Respondents. FINAL ORDER On the 21st day of October, 2008, came the Petitioners and the Defendant Frederick County Board of Zoning Appeals "BZA by counsel, for a hearing on the statutory review of the decision of the BZA pursuant to the order entered in this case on June 2, 2008, upon testimony ore tenus and argument of counsel. Upon consideration whereof, the Court finds that as a procedural matter the Zoning Administrator erred in not accepting the site plan application for review. Accordingly, for the reason set forth above, the decision of the BZA is hereby reversed. The Court makes no finding as to whether or not the Petitioners' proposed use of the property as reflected on the site plan submitted would be in violation of the zoning proffers on the property. This Order is FINAL as to all orders of the Court in this case. Enter this day of C 2009 Rob- t T. Mitchell Counsel for Defen SEEN AND OBJECTED TO FOR THE REASONS SET FORTH ON THE ATTACHED OBJECTIONS: Mark E. Stivers, Esquire Counsel for Petitioners SEEN AND OBJECTED TO AS TO THE REVERSING OF THE DECISION OF THE BZA FOR THE REASONS SET FORTH IN ARGUMENT TO THE OURT: squire 2 Arogas Inc. and Pat Manning vs. Frederick County Board of Zoning Appeals and the Frederick County Board of Supervisors #06 -580 Seen and Objected to Continuation Sheet: For the reasons and arguments made in opposition to the determination of the Zoning Administrator and the Board of Zoning Appeals, upon the record, the written pleadings, the memoranda in support of Petitioners position and the transcripts related to this matter including that for October 21, 2008. In addition and more particularly: The court erred by making no finding as to whether or not the Petitioner's proposed use of the property as reflected on the site plan to the Zoning Administrator would be in violation of the zoning proffers on the property. The court erred by its ruling because by doing so it essentially affirmed the Zoning Board of Appeals refusal to consider or determine whether the proffer was void for vagueness or otherwise invalid and/or unenforceable. Even assuming the validity of the proffer, the court erred in refusing to interpret the proffer because application of the proffer was the very basis for the Petitioner's action and appeal from the underlying decision and action of the Zoning Administrator and the Board of Zoning Appeals. Even assuming the validity of the proffer, the court erred in sustaining the demurrer because by doing so it essentially affirmed denial of a permitted use based on the mere possibility of a violation of the proffer. The court erred by ruling that the Zoning Administrator must accept the application of Petitioner and review the site plan, since the Zoning Administrator's original refusal to do so does not change the essential conflict, and meaning of the proffer at issue concerning the sale of diesel fuel to over the road truck carriers nor address the Zoning Administrators articulated position regarding the meaning of the said proffer. Respectfully submitted, Arogas Inc. and Pat Manning Mark E. Rivers P.O. Box 1737 Winchester, VA 22604 540- 722 -6168 BY COUNSEL To: FRED.CO.BOARD ZONING APPEALS THERESA CATLETT ACTING CHAIRMAN 107 N. KENT STREET WINCHESTER, VA. 22601 Clerk of Court: Rebecca P. Hogan Instructions: Frederick County Circuit Court i' SEP 1 4 2006 2) Civil Division 5 N. Kent Street Winchester, Virginia 22601 540- 667 -5770 The party upon whom this Summons and the attached Complaint are served is hereby notified that unless within 21 days after such service, response is made by filing in the clerk's office of this court a pleading in writing, in proper legal form, the allegations and charges may be taken as admitted and the court may enter an order, judgment, or decree against such party either by default or after hearing evidence. Appearance in person is not required by this Subpoena. Done in the name of the Commonwealth of Virginia on, Tuesday, September 12, 2006. By: Attorney's name: MARK STIVERS P.O. BOX 1737 WINCHESTER, VA. 22601 Summons Case number: 069CL06000580 -00 Y SIT VIRGINIA: AROGAS, INC. AND PAT MANNING IN THE CIRCUIT COURT FOR FREDERICK COUNTY v s. Petitioners FREDERICK COUNTY BOARD OF ZONING APPEALS AND FREDERICK COUNTY BOARD OF SUPERVISORS Respondents Serve: Lawrence Ambrogi, Es uire County Attorney, and ya Theresa Catlett, Acting Chair Board of Zoning Appeals, and John Riley, County Administrator 107 North Kent Street, Winchester, VA 22601 NO. PETITION FOR WRIT OF CERTIORARI And DECLARATORY JUDGMENT SEP 1 4 2006 IN RE: APPLICATION 1108 -06 COMES NOW, your Petitioners, Arogas Inc., and Pat Manning, by counsel, to Petition for a Writ of Certiorari pursuant to §§15.1-2314 of the Code of Virginia, as amended, for Review of the Decision of the Board of Zoning Appeals, and a Declaratory Judgment, and in support thereof states as follows: 1) On or about April 13, 2006, Triad Engineering, Inc. submitted a proposed site plan on behalf of Pat Manning and Arogas, Inc. to the Frederick County Planning Department. 2) On or about April 19, 2006, Frederick County Zoning Administrator, Mark Cheran informed Triad Engineering that the Planning Department would be unable to process the application due to a "discrepancy between the proposed use and the property's current zoning designation and associated proffers." 3) The decision of the zoning administrator is contained in correspondence dated April 19. 2006, addressed to the Triad's site engineer, a copy of which is attached hereto and made part hereof as Exhibit "A 4) The associated proffer in question is as follows: "Any use involving the retail or wholesale of diesel fuel for over the road truck carriers shall not be conducted or performed on this site or the commercial or industrial zones." 5) This proffer was not part of the original rezoning application or rezoning hearing which occurred on April 27, 2004 for the property in question. 6) This proffer stemmed from a discussion that occurred after the Board of Supervisors closed the public hearing and before the vote by the Board to approve the subject rezoning. 7) The proffer which was not part of the original rezoning application permits more intense use of the property, surpassing the previously advertised proffer that would have banned all diesel fuel sales. 8) The said proffer was not signed and submitted in writing prior to hearing, nor reviewed by county counsel, nor advertised, nor submitted for relevant agency review, nor subject to public comment and otherwise failed to meet the procedural requirements of the zoning code and application in relation to proffers. 9) The said proffer was itself signed before a notary public by the land owners on May 3, 2004. 10) The said proffer is void ab initio. 11) In light of the single limitation proffer (notwithstanding its invalidity), the zoning administrator's decision to summarily reject all fuel sales envisioned by the site plan is flawed, arbitrary and capricious. 12) Contrary to the zoning administrator's conclusions, SIC 55 uses are specifically permitted in B -2 Districts. Pursuant to Frederick County Zoning Code 165- 82(B)(1) B2 Business General District Allowed Uses, include, inter alia, automobile service stations- retail, filling stations, gasoline and oil retail and truck- stops retail. 13) The rejected site plan plainly contemplates gasoline and diesel fuel retail sales. initio; 14) The zoning administrator's decision to allow a single exception to encompass and swallow the rule, exceeds the right and authority of the county to enforce proffers and/or the zoning code. COUNT ONE 15) Paragraphs 1 -14 are incorporated herein by reference. 16) Following a hearing on the 15` day of August, 2006 the Board of Zoning Appeals rejected Appeal Application #08 -06 concerning property located off of Route 11 North, Martinsburg Pike, Clearbrook, Frederick County Virginia. 17) On information and belief, the Board improperly sustained the decision of the Frederick County Zoning Administrator to summarily reject a site plan for development of property already zoned B2, subject to certain proffers. 18) The Board failed to consider the present zoning of the said property and allowable and permissible uses of same under the Frederick County Zoning Code; including but not limited to the decision of the zoning administrator claiming enforcement of an invalid and defective proffer. COUNT TWO 19) Paragraphs 1 -18 are incorporated herein by reference. 20) Contrary to the said Zoning Code, the said proffer (signed May 5 was not, inter alia, received in writing or signed before the advertised hearing of the Board of Supervisors five days before the hearing. 21) A similar proffer that had been made in February was not part of the rezoning. 22) In addition, the said proffer (signed May 5 is void for vagueness, unconstitutionally interferes with interstate commerce, and invites arbitrary and capricious enforcement. WHEREFORE, your Petitioner moves that this court declare, inter alia, that a) the said proffer (signed May 5` associated with the rezoning is void ab b) though the April 27, 2004 rezoning is itself proper and valid, the said proffer (signed May 5 is ineffective and without force or validity; c) the decision of the Zoning Administrator was arbitrary and capricious; same; d) the decision Board of Zoning Appeals decision in error, and reverse the e) the said proffer is void for vagueness, unconstitutionally interferes with interstate commerce, and otherwise improperly invites arbitrary and capricious enforcement; f) the Petitioners otherwise be granted all relief and remedies to which they are entitled pursuant to the Code of Virginia; g claims as may be appropriate; h) the Petitioners be granted such other relief as the court deems appropriate. Mark E. Stivers Attorney for Petitioners P.O. Box 1737 Winchester, VA 22604 Tel. No. 540- 722 -6168 Fax. No. 540- 722 -6169 the Petitioners may otherwise be granted leave to file such additional Respectfully submitted, Arogas Inc. and Pat Manning By: Co APPLICANT'S MEMORANDUM IN OPPOSITION TO DETERMINATION OF ZONING ADMINISTRATOR DA: 8/15/06 TO: THE FREDERICK COUNTY BOARD OF ZONING APPEALS FR: MARK E. STIVERS, ESQUIRE RE: AROGAS, INC. APPLICATION 08 -06 This is an appeal from the decision of Zoning Administrator's decision to summarily reject a site plan for 13-2 usage and staff's conclusion that "...(t)he project site lay -out of this property is not in conformance with the assigned proffers for this property". The applicant contends that the decision is an invalid and unwarranted exercise of authority. Moreover, that the proffer in question is itself invalid and unlawful and void ab initio. BACKGROUND, On April 13, 2006, Triad Engineering Inc., submitted a proposed site plan on behalf of Pat Manning, Arogas, Inc., the applicant, to the Frederick County Department of Planning and Development. The site plan anticipates commercial development of 3.45 acres, previously zoned B -2, with certain proffers. On April 19, 2006, Frederick County Zoning Administrator, Mark Cheran informed Triad Engineering that the Planning Department would be unable to process the application (emphasis added) due to a "discrepancy between the proposed use and the 1 property's current zoning designation and associated proffers." Please refer to the letter from Mr. Cheran dated April 19, 2006. In Staff comments prepared for this Board, dated May 2, 2005 (sic), it is reported that: "(t)he project site lay -out of this property would indicate that the use of this property would be over the road truck fueling. This proposed use is not in conformance with the assigned proffers for this property. Staff returned the application and site plan to the applicant's engineer." It is the decision to return, and basis for rejecting the application which has prompted this appeal by the applicant. The written proffer which is in question is as follows: "Any use involving the retail or wholesale of diesel fuel for over the road truck carriers shall not be conducted or performed on this site or the commercial or industrial zones." This proffer was not part of the original rezoning application nor rezoning hearing which occurred on April 27, 2004 for the property in question. Rather, the proffer itself stems from a discussion that occurred after the Board of Supervisors closed the public hearing and before the vote to approve the rezoning of the subject properly. The proffer in question permits more intense use of the property by surpassing the previously advertised proffer that would have banned all diesel fuel sales on the subject property. The proffer in question was not signed and submitted in writing prior to hearing, nor reviewed by county counsel, nor advertised, nor submitted for relevant agency review, nor 2 subject to public comment. The proffer in question was itself signed before a notary public by the land owners on May 3, 2004. I. THE PROPOSED USE IS LAWFUL UNDER THE PROVISIONS FOR THE B -2 ZONE. In light of a single limitation proffer, the Administrator's decision to summarily reject all fuel sales envisioned by the site plan is flawed. The principal reason for the plan's rejection seems to emanate from the county's mistaken belief that diesel fuel sales are taxed at different rates for different vehicles (which is only true for dyed fuel and off road sales). This specific mistake is reported at page three of the Staff Report, which declares that: "the sale of diesel fuel to be used by over the -road trucks is taxed only by those carriers that ply the roadways with freight Therefore, as a result of the county's mistaken belief that diesel which is sold for "over the road trucks" is taxed differently (emphasis added) than that for other vehicles which burn diesel, the county has unfairly and erroneously rejected a site plan which in all respects conforms to the county code. To decide otherwise requires a finding that any zoning exception supersedes the general zoning code; and, that the exception becomes the controlling and determinative factor when considering any site plan or proposed use. Applied here, such logic would mean that no diesel fuel could be sold notwithstanding the specific language contained in the proffer and that SIC 55 is a permitted use in B -2 Districts. Clearly, this is not what is intended nor contemplated by the Code. 3 Frederick County Zoning Code §165- 82(B)(1) B2 Business General District Allowed Uses, includes Standard Industrial Classification Code (SIC) 55, which includes, inter alia, automobile service stations retail, filling stations, gasoline and oil retail, and truck stops retail. The rejected site plan plainly contemplates gasoline and diesel fuel retail sales. Notwithstanding a question about the validity of the proffer itself, the simple fact that diesel fuel may not be sold to "over the road truck carriers does not in any other respect preclude the sale of diesel to any other diesel or gasoline operated vehicle. Examples include, without limitation, automobiles, pickup trucks, dump trucks, school buses, commercial buses, private buses and self propelled mobile homes. The Zoning Administrator's decision to allow a single exception to encompass and swallow the rule, exceeds the right and authority of the county to enforce proffers. Clearly, the choice to reject the plan is contrary to proper exercise of judgment and requires this Board to reverse the decision of the Zoning Administrator. There is no question that the proposed use for the subject site is permitted under the zoning plan, and the staff has acknowledged this fact. Please reference the May 2, 2005 Staff Report at page two.) Although the Zoning Administrator has attempted to support an erroneous decision based on a differentiation between "commercial," "over the- road" vehicle diesel fuel and diesel fuel for other diesel use vehicles, based on dye and taxation of the former, the information is factually erroneous. (See June 1, 2006 Letter from Stivers to Mitchell.) In fact, dyed diesel fuel is sold only for "off- road" use 4 and is not subject to highway taxes. (Id.) The distinction, of course, has no significance as it pertains to the proffer and does not change the fact that diesel sales are permissible within B -2 and that under the proffer itself, assuming for sake of argument that the same is even enforceable for as is explained infra, the proffer is invalid and void, meaning that the only applicable restrictions are those that govern the B -2 zoning district. II. THE PROFFER IS INVALID. Under the County Code, while proffers may be offered as part of a rezoning application, the proffers must be presented at the advertised public hearing on the rezoning, and final proffers must be received in writing, signed by the owner and applicant, at least five days before the advertised hearing of the Board of Supervisors. Frederick County Code 165- 13(A). In February 2004, a rezoning proffer for the subject property was submitted by the Semples which included a provision that "[t]he specific use involving the retail diesel fuel for trucks shall not be conducted or performed on this site." (Reference the Feb. 6, 2004 Rezoning Request Proffer) A hearing was held on the rezoning in April 2004, during which the proffer was verbally changed to include retail and wholesale sale of diesel fuel for over the -road trucks and carriers. (Reference the Apr. 27, 2004 Hearing) Not until May 2004 was the modified proffer signed, which included the provision that: Any use involving the retail or wholesale sale of diesel fuel for over the road truck carriers shall not be conducted or performed on this site. (Reference the May 3, 2004 Rezoning Request Proffer) 5 It is well established in Virginia that notice provisions concerning zoning or rezoning actions are mandatory and any failure to strictly comply with such provisions renders the action void ab initio. E.g., Gas Mart Corp. v. Board of Supervisors of Loudoun County, 269 Va. 334, 345, 611 S.E.2d 340, 345 -47 (2005) (where board failed to provide descriptive summary of proposed amendment in notice, as required, amendment was void ab initio); Glazebrook v. Board of Supervisors of Spotsylvania County, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003) (where notice did not meet requirement of code, board acted outside its authority in passing zoning amendments, and amendments were void ab initio); City Council of Alexandria v. Potomac Greens Associates Partnership, 245 Va. 371, 376 -78, 429 S.E.2d 225, 227 -28 (1993) (same). Clearly, the May proffer is void ab initio, as it was neither received in writing nor signed before the advertised hearing of the Board of Supervisors, let alone five days before, and was not presented to the planning board at all. Rather, the May proffer was only signed on May 3, 2004, almost a week after the hearing. The May proffer, accordingly, has no legal or critical effect on the uses permitted under the B -2 zoning designation. The February proffer, on the other hand, was simply not a part of the rezoning, since the vote on the rezoning was on a substituted proffer, such that the February proffer cannot, as a matter of law, be of any legal effect. 6 Importantly, Virginia courts have also determined that the invalidity of an individual proffer does not necessarily undermine the overall reasonableness of the rezoning. As the court explained in another case, While the Town may have made an error in accepting a proffer as to agricultural use of the northern tract or may have exceeded its authority in doing so, I do not believe that this invalidates the entire ordinance. Invalidity of one proffer should not defeat an entire rezoning ordinance. Therefore, for purposes of the Pettibone Demurer, the Bill of Complaint states facts among which the Court could declare the following provisions: Proffer (5): "and this land shall be used only for agricultural purpose." Proffer (7): "and the Applicant retains the Right to use this acreage for agricultural purposes." to be null and void, but that the balance of the proffers and the ordinance are valid, unless otherwise invalid. Clark v. Town of Middleburg, 1990 WL 751299, at *5 (Loudoun County, Va., Cir. Ct. 1990). In the present case, as in Clark, while the proffer related to diesel fuel is clearly null and void for failure to give the required notice, the rest of the proffers and the rezoning are valid. In conclusion therefore, this leaves the rezoning of the subject property as B -2, unmodified by any additional restriction on retail or wholesale sale of diesel fuel beyond those, if any, that would be of general application in any B -2 zone. III. THE PROFFER IS OTHERWISE UNENFORCEABLE The proffer is too void for vagueness, unconstitutionally interferes with interstate commerce, and encourages arbitrary and capricious enforcement. 7 IV. THE STAFF SHOULD REVIEW THE APPLICATION. For the foregoing reasons, this Board should direct staff to review the Arogas site plan in the context of B -2 rezoning classification which permits the sale of gasoline and diesel. Moreover, the Board should find further for the reasons assigned that the attempted proffer restriction on sale of diesel fuel for over the -road carriers is null and void, thereby leaving the site plan to be reviewed without reference to the invalid proffer. Respectfully submitted, Mark E. Stivers:Esquire` Counsel to the Applicant Post Office Box 1737 Winchester, VA 22604 Telephone: (540) 722 -6168 8 MEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on, August 15, 2006. PRESENT: Theresa Catlett, Chairman, Opequon District; Dudley Rinker, Back Creek District; Dwight Shenk, Gainesboro District; Lennie Mather, Red Bud District; Kevin Scott, Shawnee District; ABSENT: Robert Perry, Vice Chairman, Stonewall District; and Robert W. Wells, Member -At- Large. STAFF PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; Lauren Krempa, Zoning Inspector; Bev Dellinger, BZA Secretary; and Robert T. Mitchell, Jr., Attorney for the BZA. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. On a motion by Mr. Shenk and seconded by Mr. Scott, the minutes for the July 18, 2006 meeting were unanimously approved as presented. Chairman Catlett asked Mr. Cheran the cut -off date for the next meeting. Mr. Cheran replied that Friday, August 18, 2006, is the cut -off date. PUBLIC MEETING OLD BUSINESS Continuation of Variance Request #10 -06 of Kay -Mor, Inc., and Debra Toms, submitted by Clinton R. Ritter, Esq., for a 30' variance on the eastern side of the property. This property is located on the east side of Sulphur Springs Road (Route 655), 1 /10 mile north of the entrance to the County Landfill, and is identified with Property Identification Number 65 -A -176 in the Shawnee Magisterial District. ACTION VARIANCE APPROVED Chairman Catlett stated that the Public Hearing has been held on this item and the Board needs to make a decision on the request today. Mr. Cheran gave the staff report. The variance requested is for a 30 foot side variance on the eastern side of the property. The reason for the variance is the lot predates the zoning ordinance with regards to setbacks of the RA zoning district. As a brief overview, Mr. Cheran stated that the lot was created in 1966, prior to Frederick County adopting zoning on March 11, 1967. At the time of the adoption of the zoning ordinance, this one acre property was zoned A2 (Agricultural General) as shown on the Frederick County historical map. The property is currently zoned RA, which Frederick County adopted in 1991. The current setbacks for the property are 60 feet from the front, 50 feet from the right side and 100 feet from the rear. Frederick County Board of Loning Appeals Minutes of August 15, 2006 Minute Book Page 1395 Two items were brought to the Board's attention by staff. One is the proposed Route 37 right -of -way. This is a policy issue only. The second issue is the impact on the County Landfill. There is a letter in the agenda from Mr. Ed. Strawsnyder, Public Works Director, spelling out his concerns about the impact to the landfill. Staff will also point out that the Landfill protection area is not indicated in any of our land use policies or plans, or the 2003 Comprehensive Policy Plan. The Code of Virginia. Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that a) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance Mr. Cheran further stated that the applicant is seeking a 30 foot eastern side variance on the property to build a residential structure of approximately 2,016 square feet. Should this variance be granted, the property setbacks will be 60 feet front and 70 feet left side and rear. It appears the variance meets the intent of the Code of Virginia, Section 15.2- 2309(2) and the request from current setbacks of the RA zoning district may be justified. The Board heard this item on June 20, 2006 and there was a tie vote on the motion made by Mr. Shenk and seconded by Mr. Wells. As the motion did not receive the required affirmative votes, this application is being brought back to the Board for conclusive action. Mr. Rinker asked if the property has a proposed drainfield site that has not been applied for. Mr. Cheran stated that Mike Artz told him that the paperwork has been submitted to the Health Department. Mr. Rinker stated that part of being in the flood plain means he would want that permit in hand. Mr. Cheran said it is a legitimate concern, but the Health Department, under their current regulations, does not look at being in the flood plain as a detriment. Mr. Clinton Ritter, who is representing the applicant, approached the podium. Mr. Scott asked if this is a spec home and Mr. Ritter replied it's going to be a spec house. Mr. Ritter stated they had a new survey done and on the new plat the proposed drainfield site is shown. Mr. Ritter further stated that this piece of property is grandfathered. One of the reasons that the Legislature in Virginia set this Board up and gave the Board members authoritative power is to grant variances to people when it creates hardship when you have changes in ordinances such as going to a 100 foot setback. What the applicant is asking for is a 30 foot variance so that they can put a nice home on this piece of property. The applicant spent several thousands of dollars with Mr. Carl Evans, who is a soil scientist, to find a site that he could approve for a three bedroom perc. Once the variance is granted, they can go to the Health Department, get their permit and they can start construction. Mr. Ritter stated that some concerns addressed in the letter from Mr. Strawsnyder were about possible pollution of a well. Mr. Ritter pointed out that directly across the road from this lot is a house and directly to the south of it is a house. Mr. Ritter stated he knows of no evidence in Frederick County where the Landfill is polluting any wells in thaf'district. If it was, he's sure EPA and every other organization of the government would be concerned. The decision of the Board should be based upon facts and law. The fact in this case is that this piece of property is grandfathered; the applicant is asking for a 30 foot variance and if they don't get it, it will create a hardship on them. There is no legal basis to turn this request down based on speculation or concern. This is also about people's property rights, which are protected under the Constitution of this State and the United States. Mr. Ritter asked the Board to approve this variance today. Minute Book Page Frederick County Board of Lomng Appeals Minutes of August 15, 2006 1396 Mr. Rinker commented that a hardship would be that the applicant does not have a place to build on the property and they do have a spot where they can build; it may not what they're requesting, but they do have a spot they can build on. Mr. Ritter stated if you take the 100 feet and apply that, you would have a rectangular shaped home. Mr. Rinker stated that's right, but you still have a rectangular spot that you can build a 36x56 home. Mr. Ritter stated they do not. Mr. Ritter asked Mr. Rinker to review the plat; they need the variance in order to be able to build the 36X56. Mr. Cheran stated that a mobile home or a smaller cottage -type house could probably fit into that setback, if you're talking hardship. The setbacks currently on this property, without the variance, would be 60 feet from Sulphur Springs Road, probably 50 feet from the Putmans and 100 feet from the Landfill. Mr. Cheran stated for the record that there were not setbacks assigned to the original plat. Mr. Rinker stands corrected; he misread the numbers. Mr. Shenk made a motion to approve Variance Application #10 -06. Mr. Scott seconded the motion and the motion passed by majority vote. PUBLIC HEARING Appeal Application #08 -06 of Arogas, Inc., submitted by Mark E. Stivers, Esquire, to appeal the decision of the Zoning Administrator regarding the proffered uses on this property and rejection of a site plan for the uses on this property. The subject property is located at the intersection of Rest Church Road (Route 669) and Route 11 North, and is identified with Property Identification Number 34 -A -4 in the Stonewall Magisterial District. ACTION APPEAL DENIED Mr. Cheran gave the staff report. This is an appeal of the Zoning Administrator pertaining to the proffered uses and rejection of a site plan for the uses on this property. The applicant submitted a site development plan to the Zoning Administrator on April 13, 2006. This site plan could not be processed due to a discrepancy between the proposed use and the proffers associated with this property. The property was rezoned in 2004, with assigned proffers, by the Frederick County Board of Supervisors. The proffers included no retail or wholesale of diesel fuel for over the -road truck carriers. The owner of a property offers proffers for a rezoning and these are restrictions that are beyond the general regulations of the zoning district in which the property is located. Truck stops are a permitted use in the B2 zoning district; however, the proffers approved with this rezoning have removed this use from the property. Enforcement of proffers in Frederick County falls under Section 165 -13(E) and are the responsibility of the Frederick County Zoning Administrator. Mr. 'Cheran further stated that the applicant contends that the Zoning Administrator's decision in regards to the enforcement and interpretation of the proffers of Rezoning #02 -04 is arbitrary and capricious. Staff was in no position to review the site plan as it was presented. The applicant should have understood the proffers assigned to this property before investing the time and money to develop the property. The only issue before this Board today is to affirm or overrule the decision of the Zoning Administrator with regards to the assigned proffers of Rezoning #02 -04. Any change to the assigned proffers must be made by the Board of Supervisors Minute Book Page 1397 M in ut es o f August B 15 2006 Lotting Appeals and is not within the purview of this Board. In conclusion, staff is asking that the Board affirm the decision of the Zoning Administrator in the administration of the Frederick County zoning ordinance regarding the proffered uses on this property and that the Zoning Administrator was correct in not reviewing the applicant's site plan. Mr. Cheran stated for the record that Mark Stivers, representing Arogas, is present. Mr. Mark Stivers approached the podium. Mr. Stivers had prepared a brief memorandum and he presented it to the Board members. Mr. Stivers stated that, essentially, what he is asking the Board to do is to make certain findings of fact, because findings of fact that are found by this Board are presumed correct, if this matter is appealed to the Circuit Court. Additionally, Mr. Stivers is asking the Board to make certain findings of law, and under the Code of Virginia, that's exactly the function and purpose of this Board. Among other things, the power and duties of the Board include this statement that: "The Board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision Mr. Stivers stated that on the surface, this may look like a simple denial, but behind it, it's important this Board understand certain things that have transpired. One of the things that's important for the Board to understand is that the proffer that is at issue in this instance was never publicly advertised, never made a matter of public comment or record, never reviewed by the County's Counsel, and was not the subject of the requirements of the Frederick County zoning code. What happened is this: George and Carol Sempeles owned some land in the northern portion of the County, in Clearbrook. They came before the Board on April 27, 2004 on a rezoning application. In that rezoning application, there was a specific proffer. That proffer, among other things, for the B2 usage, which was being requested at that time, was to disallow the sale of diesel fuel, wholesale and retail, to trucks. After the public hearing was closed, the Board of Supervisors engaged in a conversation. During the course of that conversation, among other things, it was decided that the proffers should be changed. The proffer that you see before you is the proffer that was determined should be the proffer, if there is to be a proffer at all, that would be at issue here today. Mr. Stivers cited this proffer in his memorandum, on page 2, and is as follows: "Any use involving the retail or wholesale of diesel fuel for over the -road truck carriers shall not be conducted or performed on this site or commercial or industrial zones Mr. Stivers stated that it doesn't say that all sales of any sort are disallowed, rather it says for over -the- road truck carriers. When you look at the zoning code, there is no definition of over the -road truck carriers. There's a definition of trucks and tractor trailers, but not of over the -road truck carriers. That's not the critical factor. There are two things Mr. Stivers is asking the Board to look at. One, if you accept the proffer as being valid, the question is, does this proffer disallow all SIC (Standard Industrial Classification Code) 55 usages? The SIC permits, among other things, gasoline and diesel sales. That fact is admitted by the County. The County acknowledges that SIC 55 is permitted in B2 and specifically that in this instance, but for this proffer, it would be allowed. There was an erroneous assumption made by the County back at the time that the Board voted on this, and it's continued until today. This mistake is what the County has assumed is that commercial vehicles that utilize diesel are taxed at a different rate and in a different fashion; in fact it was even argued that the diesel that they consume is dyed. Therefore, commercial usage could be distinguished from all other usages. One of the underlying assumptions that was made by the County is erroneous. It's important because the County was hanging its argument on the word "for"; any use involving retail or wholesale fuel "for" over- the -road trucks. Their argument being that if diesel that was utilized for those types Minute Book Page 1398 hredenck Lounty Board of Lotting Appeals Minutes of August 15, 2006 of vehicles could not be sold there, then all commercial diesel could not be sold. Diesel fuel that's sold for over the -road usage is not taxed any differently for a car than it is for a tractor trailer truck. Mr. Stivers continued that the one type of fuel, for the Board's edification, that is taxed differently is off -road usage; and in fact, that's dyed. What we have is the County, on page 3 of its staff report, specifically argues that the type of over the -road truck carrier that is proffered out here is taxed differently when it plies its goods over the road and that's a false statement. Because it is a false statement, we need to evaluate whether or not the County is suggesting that a simple modifier, that an exception, becomes the rule and it does not. This proffer does not preclude B2 usages. This proffer does not preclude the sale of gasoline and diesel to vehicles of any sort other than over the -road truck carriers. What that means is that tractor trailers, if they're not over the -road truck carriers, are also included in that other classification of vehicles that are permitted. The County has argued that over the -road truck carriers means tractor- trailers, so let's ignore that argument for the moment and look at all the other types of usages. The classic Mercedes Benz burns diesel, Volkswagens bum diesel, Ford trucks, GMC trucks and the like that are 250's and 350's that consume diesel. What about buses? School buses consume diesel; school buses are not precluded by this proffer from buying diesel in a B2 or on this particular property. What about campers? Greyhound buses are not precluded. We need to look at the question of whether or not the exception is going to become the rule. Mr. Stivers respectively requests that under no circumstances should that be the case. Therefore, the decision of the Zoning Administrator to reject the site plan in its entirety was a wrong decision. This Board has the authority to reverse that decision. On the simple basis of the fact that the exception is not the rule, Mr. Stivers asked them to make that ruling and determination. Beyond that, Mr. Stivers asks the Board to look at a more fundamental issue and that is whether or not this proffer is even valid. Mr. Stivers' research shows this proffer is void ab initio, which means it's not enforceable. If it's not enforceable, the determination of the Zoning Administrator is constrained far more than it would be if the proffer itself is valid. Mr. Stivers stated that the way the proffer originated was in a discussion that occurred by the Board of Supervisors after the close of the public hearing; there had been no advertisement, there had been no opportunity for public comment and there had been no review by the County Counsel. These things are contained as required conditions for a proffer; in fact it has to be advertised, signed five days in advance by the County Code 165 -13A, etc., which has those specific conditions in it. The proffer was not tendered and adopted in accordance with our own Code; therefore it is not a valid proffer. Does that mean the entire rezoning is invalid no, it does not. It is important for this Board to make a factual determination that the County Administrator's assumption that diesel fuel for over -the -road truck carriers is taxed differently than other diesel consuming vehicles is wrong. If you make that decision, it's easy to conclude that the exception cannot govern the rule and, therefore, notwithstanding the proffer itself, for all the other uses that would be permitted, the sale of gasoline to gasoline- consuming vehicles and the sale of diesel to all the other categories of vehicles discussed, are permissible under B2 and permissible as passed by the Board that night, notwithstanding the validity of this proffer. Beyond that, Mr. Stivers asks the Board to make a factual determination that what the Board did on that evening was contrary to our own zoning requirements, our own law, and as a result of that, the proffer itself is void ab initio. Because it is void ab initio, when this County Zoning Administrator ultimately looks at this site plan, he must disregard any language that is suggested in that particular proffer. Mr. Stivers stated that he asked for a stipulation from Mr. Mitchell if they're in agreement on the diesel issue or does he need to offer testimony on that. Mr. Stivers further stated it's the specific allusion in the staff report on page 3 to the fact that diesel fuel is somehow taxed differently. Mr. Mitchell asked Mr. Stivers 1399 what Minute Book Page Minutes of County Board 006 Zoning Appeals he's referring to. Mr. Stivers stated it's under staff response to Paragraph 3, the last sentence of the first paragraph of that response ..."furthermore, the sale of diesel fuel retail or wholesale to be used by over -the- road trucks is taxed only by those carriers that ply the roadways with freight Mr. Mitchell asked Mr. Stivers what he is reading from and Mr. Stivers replied he's reading from the staff report. It was then discovered that Mr. Stivers had in his possession the staff report from May 2006, not the current staff report dated July 21, 2006. Mr. Stivers stated that he did not receive a copy of the July 21 staff report and he asked for a copy of the updated staff report. Mr. Stivers noted that the particular paragraph he was reading from has been deleted from the July 21 staff report. Mr. Stivers still asked for that stipulation because he doesn't believe that it in any way changes the underlying assumptions of the County on this. Mr. Mitchell stated that he doesn't believe it's material to the issue before the Board of Zoning Appeals. Mr. Stivers offered Mr. Pat Manning of Arogas, Inc., for the purpose of having him testify that in his 35 years of experience in selling diesel and gasoline, that diesel for over -the -road vehicles is not taxed any differently. With regard to the balance of the staff report, because he has been taken somewhat aback by this and it has not been shared with him, Mr. Stivers asked for a moment to sit down and to read it and to have the opportunity to address the Board after he has had the opportunity to read it. Mr. Stivers was informed by the BZA secretary that the staff report was mailed to him. Staff apparently has an incorrect address for Mr. Stivers if he did not receive the staff report. Chairman Catlett asked Mr. Mitchell if the question before the Board today is not whether or not the proffer is valid or invalid but whether or not the Zoning Administrator made the proper decision based on the rezoning that was approved by the Board of Supervisors. Mr. Mitchell responded that is exactly right. Mr. Mitchell further stated that the proffers are part of a rezoning and rezonings, whether they be conditional rezonings with proffers or whether they be other types of rezonings, are legislative acts of the Board of the Supervisors. This Board cannot declare, it does not have the jurisdiction or the authority, to declare a legislative act of the Board of Supervisors invalid. This Board has to accept the legislative action, the legislative act, of the Board of Supervisors as it was enacted. In this case, the proffer says "any use involving the retail or wholesale sale of diesel fuel for over the -road truck carriers shall not be conducted or performed on this site either in the commercial or industrial zones What a proffer does is, it takes away certain rights that are given under a zoning ordinance for use; they voluntarily proffer to eliminate that as a use on the property. That's what this is. While truck stops or diesel sales to over -the -road trucks may be permitted in this zoning district generally, they are not permitted on this property because they were proffered out by the voluntary proffer submitted by the applicant. Mr. Mitchell gave a brief history. The Board may be wondering why they worded it that way. In 2001, this same applicant on another piece of property had a site that he submitted that had multiple fueling stations and a restaurant and he claimed it wasn't a service station, it was a restaurant. That matter was appealed that it wasn't a truck stop or service station, it was a restaurant, and the truck stop aspects of it were accessory to the restaurant use. That went to the Circuit Court, and the Circuit Court upheld their decision. With that history, when this comes around, they didn't want to get into the problem again of saying we're going to proffer out truck stops, because ifrit has a restaurant with it, we may be right back where we were. This proffer says specifically "for over the -road truck carriers shall not be conducted or performed on this site This Board has to take this legislative enactment, that proffer, as is written and interpret it in its clear and normal usage of the terms. What happened in this case, there was a site plan submitted and the Zoning Administrator said this site plan, on the face of it, violates the proffers. Mr. Mitchell told the Board they haven't heard Mr. Stivers say that they don't intend to put a truck stop there or that they don't intend to sell Minute Book Page 1400 Frederick County Board of Loving Appeals Minutes of August 15, 2006 diesel to over the -road trucks. Mr. Stivers is saying we're not bound by the proffer because it's not valid. This Board cannot determine that it's not valid. Only a Court can declare a legislative act of the Board of Supervisors invalid. Mr. Mitchell told the Board that what they're required to do under the statute is determine whether the Zoning Administrator was correct in determining that this would not be permitted under the proffered rezoning. In doing that, the statute says you shall consider the purpose and intent of any applicable ordinances, laws and regulations in making your decision. Mr. Stivers stated that he sees that the staff report is not substantially different than what was sent to him in May. The allusion he made earlier to the plying of goods over the -road has been deleted. The one provision of this says that the decision of the Zoning Administrator was not arbitrary or capricious in the enforcement of the proffers in the procedure on returning the site plan. It further says that the site plan could not be reviewed by staff due to the site layout. The site plan clearly shows pavement details for heavy truck use and clearly shows fuel islands and parking spaces to accommodate over the -road trucks. Mr. Stivers asked again does the exception govern the rule. What they have is a site plan to sell two types of fuel. In the future, that fuel may change. We're in a dynamic time and whether or not we're selling hydrogen or some alternative such as propane is a very real possibility. When it comes to planning things, it's not unreasonable to account for that. But on its face, they're here to sell two types of fuel. The one type of fuel, if the proffer is invalid, that cannot be sold is for the one classification of vehicle that fuel cannot be sold to, is an over -the- road truck carrier. Again, what that means and why it wasn't defined more specifically, Mr. Stivers doesn't know. Mr. Stivers stated that with all due respect to Mr. Mitchell with regard to the reasons for the Board making the decision that it did, he's going to come back to what he said earlier. Had the proffer been reviewed by Counsel, which it was not, had the proffer been advertised and subject to public comment, which it was not, then that proffer may have turned out differently. What we have here is a simple one exclusion from the general rule. The general rule is, we can sell to every type of vehicle that consumes diesel and gasoline save over -the -road truck carriers. The Zoning Administrator has said you could sell to over -the -road truck carriers; you have the configuration that would permit that. Yes, arguably, the configuration is there that would permit that. But the configuration also permits the sale to very large vehicles other than tractor trailers. The County did not preclude the sale to school buses, any type of commercial or private bus, diesel operated campers, dump trucks, or any other form of vehicle that would consume diesel other than the over the -road truck carrier, whatever that may be. Was the Zoning Administrator correct in his decision to say that you could possibly sell to over the -road truck carriers so therefore I'm not going look at this site plan, period. Mr. Stivers would suggest, respectively, not. There is nothing in that proffer that disallows a tractor trailer from pulling into that parking lot and parking. A well written proffer that intended that would have said that, and it doesn't. Simply because this site plan would accommodate a large truck such as a tractor trailer does not make this an invalid site plan, one that's not worthy of review, and the decision of this Zoning Administrator to summarily reject it, was a wrong decision and Mr. Stivers asks the Board to reverse that decision. With regard to Mr. Mitchell's argument that you cannot determine that the proffer in this instance is invalid, what you can do is make factual determinations. You can make a determination that in this particular instance the proffer was not advertised, the proffer was not subject to public comment, it was not subject to Counsel's review, that was signed five days after the close of the public hearing, all contrary to our 165 -13 provisions of our County Code. Mr. Stivers asks the Board to make that factual determination. Mr. Stivers stated that Mr. Dunlap, who is the engineer who prepared the site plan, is here and he's prepared to talk about the site plan should the Board have any questions. Mr. Stivers asked Mr. Dunlap, for factual determination purposes, whether or not in his experience if he's ever had a similar rejection of a site plan when prepared for all conditions of the allowed use. Chairman Catlett told Mr. Stivers that she's not sure Minute Book Page M Minutes of August Board 20 Zoning Appeals if that's relevant to what's before the Board. Mr. Stivers said very good. Chairman Catlett further stated that what's before this Board is whether or not the Administrator properly interpreted the proffer that was approved by the Board of Supervisors. Mr. Stivers stated that he thinks it's also before this Board to decide whether or not, even if he did properly interpret it, as a consequence of his interpretation, he can summarily reject a site plan that in every other instance meets the B2 requirements, and in no instance in and of itself, violates that proffer. Chairman Catlett stated that she thinks that's before this Board to decide today. Mr. Rinker stated that when this rezoning was brought forth with the proffers, it was duly advertised. During the proffer discussion, this proffer was changed after the public comment, and it was changed because of the public comment and that is perfectly fitting to do. It does not need to be continually advertised. Mr. Stivers stated he wouldn't disagree, with the exception of one facet, and that is if you look at the cases in Virginia, the central question revolves around the intensity of the use. Mr. Stivers further stated that if he advertised a very intense use, but then there's a revision in the proffer which backs off of that and reduces the intensity, case law holds that in that instance you need not follow the public comment requirements, etc. However, if in the other instance, those that may have otherwise been alarmed by the intensity that's being permitted by the revisions that take place after the fact and don't appear, could arguably be harmed. It's for that reason that the case law suggests and holds that if you create a more intense use, in that instance you must indeed follow the public disclosure requirements. Mr. Rinker stated that if that should stand up and it wasn't a proper proffer but the Board acted on it as a whole, this rezoning should go back to zero. Mr. Stivers stated that the case law does not hold that either. Mr. Stivers stated that it's for this reason, and this is a very sensitive matter before this County, because in his experience he's seen a lot of things go on in this County over the years, he's watched a lot of rezoning hearings and matters at different levels of the zoning process and this is an extraordinarily important issue because of the way in which it was done. When you look at the record as it transpired that evening, it's important to recognize that the County failed to follow its own procedures. Mr. Scott asked Mr. Stivers if the Board should uphold the decision of the Zoning Administrator, can he assume that this will probably end up next door. Mr. Stivers replied that what he would ask the Board to do is to follow the mandate of the Board and that is to review the decision for its properness. In this instance, Mr. Stivers suggests that what Mr. Cheran did, not with malice, he made a simple mistake. Actually the simple mistake revolves around what has now been deleted from the staff report and that is the way in which the fuels are taxed are different so therefore, you can make a distinction in the type of classification of vehicle that can be utilized at a particular site. With that no longer a consideration, it's simply the question of whether or not the exception can become the rule and Mr. Stivers respectfully suggests that is not proper. Mr. Stvers co of respectfully not to address this second decision and if the validity e proffer, so it. on the Mr. Scott said he understands, but Mr. Stivers did not answer his question. Mr. Stivers said he'd have to wait and see what the Board's decision is with respect to the two questions. Mr. Scott stated part of his reason for asking is because there's a lot of complexity here and Mr. Scott thinks that some of this is beyond his scope of being fair to either side. Mr. Stivers stated he appreciates that. 1 a Minute Book Page Minutes of August 15, 2006 oning ppea s Mr. Stivers said this is within your ability to comprehend and is within your knowledge. It's a simple question. A site plan comes in and in all respects meets the B2 zoning requirement; it is for SIC 55 -41, gasoline and diesel sales. The configuration of the site plan allows large vehicles onto the site and Mr. Stivers agrees it would allow a vehicle as big as a tractor trailer on the site. But it also allows all the other big vehicles that aren't specified and aren't precluded by that proffer to also enter and utilize the site. It's in the context of whether or not that one exception can govern the actions of the Zoning Administrator in its entirety. Mr. Stivers respectfully suggests that it is an improper and an illogical method of evaluating this site plan. This site plan, if evaluated and subject to comment by the Zoning Administrator, can well result in changes, which is what happens; it's an administrative function in almost every instance and it's customary for the Zoning Administrator to say we need to tweak this, we need to do that, and the applicant works along with the engineer to accomplish those concerns. But in this instance, they never even got that opportunity and that's the decision Mr. Stivers is asking the Board to overturn. Mr. Rinker asked if there's anything on the Master Plan to deter over -the -road trucks from coming in and being serviced. Mr. Stivers stated that the proffer itself is. Mr. Rinker said that's just a piece of paper and some words. What's in place on the Master Plan to keep those vehicles from coming to the property? Mr. Stivers asked Mr. Rinker if he's asking if there's a sign or is there a barrier? Ms. Mather asked if there's a height deterrent, so that you could run a pickup truck into it but not a tractor trailer. Mr. Stivers stated there's another issue that isn't directly on the site plan that would affect this and that is, it's an industrial access road and as part of the public comments that were made during the Semples rezoning also includes thru- trucks prohibited. Mr. Rinker asked what's in place to implement the proffer. Mr. Shenk asked how they would police it. How would they allow a bus to come in but not a tractor trailer? Mr. Stivers supposes that's something that would have to be worked out with the Zoning Administrator. It's the Zoning Administrator's responsibility to do that. However, in the same context, if there were suggestions as to how not to sell fuel to over -the -road truck carriers, they would gladly implement those. One thing they can do is refuse to turn the pump on for that type of vehicle. The sign at the entrance to the industrial access route, among other things, precludes a vehicle it says, "No Thru Trucks Again this is one of these issues of what are we concerned about here. There was an allusion to the fact that across the street, there's a rezoning application pending for a truck stop. Is that what we're worried about? Are we then stepping outside of our discretion and /or the purposes of this Board or the Zoning Administrator, and it seems to Mr. Stivers we are. Mr. Stivers introduced Mr. Pat Manning, the Chief Executive Officer of Arogas. Mr. Manning asked about the public hearing of the Sempeles and he has a copy of it, he can make it available. It shows how this proffer was hatched, how it evolved, what procedures were taken, what weren't taken. Mr. Mitchell reiterated the point that this Board can't get over into the area of adjudicating the validity of a legislative act of the Board of Supervisors in approving the rezoning and the proffer that's on the property. Mr. Mitchell stated that he does not agree with Mr. Stivers' recitation of what happened at the public hearing and how the proffer came about and what the proffer was before it went to the public hearing or the fact that it represented a more expansive use of the property. That's a factual issue that Mr. Mitchell feels is not even before the Board because the issue is not before the Board. Mr. Mitchell stated it's hard to tell from their presentation as to whether or not they're saying that this site plan is set up to serve diesel fuel to 1403 Minute Book Page Frederick nutes of August Board t15, 200 Zoning Appeals over -the -road truck carriers or whether they're saying we can serve other vehicles. Mr. Mitchell feels one has to take a common sense approach to this. If you look at page C4 in the agenda, there is a convenience market with a fueling canopy right in front of it, obviously for vehicles. There are eight fueling stations there in front of the convenience store. In the rear is a large fueling area that would serve, Mr. Mitchell guesses, with seven fueling stations. Does that look like the occasional bus or truck that's going to use diesel fuel seven fueling stations? Mr. Mitchell feels that the Zoning Administrator took a conunon sense approach to what was being presented, and this was clearly a site plan for selling diesel fuel to over the -road truck carriers. That was the basis of his determination. Chairman Catlett asked if anyone else would like to speak and that they will be held to no more than three minutes per person. Mr. Ken Rice, Chief Operating Officer of H. N. Funkhouser Co., approached the podium. Mr. Rice stated their property is on the other side of the entrance, about 3 -1/2 acres. Unlike Mr. Manning, who Mr. Rice believes is under contract pending site plan approval, H. N. Funkhouser purchased their land. They purchased it with the clear understanding that truck stops were prohibited. Mr. Rice stated that he's not going to get into all the legal issues before the Board today, but it was clearly the intent of all parties involved that truck stops were not supposed to be put in this area. VDOT is clear in that direction because of the traffic concerns. They bought their land with that clear understanding of the proffer and now they continue to see these issues come up about legal niceties and language and intent. He thinks everyone knows what the intent is. It was a clear understanding of all parties VDOT, zoning that truck stops were prohibited. That's how they bought it. To see this issue come up again and someone trying to wiggle around and get a truck stop in there concerns them. Chairman Catlett asked if anyone else would like to speak and no one responded. The public hearing portion of the meeting was closed. Discussion Mr. Scott asked Mr. Cheran when he first received the site plan, did he respond to them and point out the discrepancies he found per the proffers and what was the response to that? Mr. Cheran replied there's a letter in the agenda which he sent to Mr. Dunlap after reviewing the site plan. That's the only response by staff. Ms. Mather asked Mr. Cheran what his personal opinion is of what the Board of Supervisors was trying to do with this proffer. Mr. Cheran responded that he doesn't have a personal opinion, but his professional opinion is what the proffer states. Mr. Stivers asked to speak again. He said that he knows that Mr. Cheran indicated there had been no additional correspondence, but there was additional correspondence that transpired. It's not part of this hearing so it's for that reason Mr. Stivers thinks Mr. Cheran may have responded that way. Mr. Rinker stated that he believes the proffer speaks for itself and the Master Plan presented speaks for itself, and he believes the Administrator made the proper calls. Mr. Rinker made a motion that the Board uphold the Zoning Administrator's determination. The motion was seconded by Mr. Scott and the vote was unanimous to deny the appeal. 1404 Minute Book Page Frederick county Minutes of August B15,r2006 Loning Appeals PUBLIC HEARING Variance Request #15 -06 of Jay Mergler, submitted by H &H Builders, for a 15 foot front yard variance and a one foot rear yard variance for the construction of a single family home. This property is located on High Street (Route 635), 0.1 mile on the right, and is identified with Property Identification Number 91A03- 164 -15 in the Back Creek Magisterial District. ACTION VARIANCE APPROVED Mr. Cheran gave the staff report. This request is for a 15 foot front yard variance and a one foot rear yard variance for the construction of a single family home. The reason for the variance is the lot is exceptionally shallow and is bordered on three sides by unimproved platted right -of -ways. Mr. Cheran further stated this 1.72 acre property was part of the New Middletown Subdivision created in 1890. In 1967 Frederick County adopted zoning. The historical zoning map shows this property was zoned A -2 (Agricultural General) and building restriction lines at the adoption of the zoning ordinance were 35 feet front and 15 feet on the sides. In 1987 this property was subject to a lot consolidation of 23 lots with building restriction lines of 35 feet front 15 feet on the sides. Frederick County amended its Code in 1989 to change the rural zoning districts to the current RA (Rural Areas) zoning district, making the building restriction lines for the property 60 feet front for all four sides. Mr. Cheran further stated a variance request by Mr. Mergler on this property was heard and approved by the Board of Zoning Appeals at their meeting of November 15, 2005 (Variance #23 -05) The request was for a ten foot variance in the front and a 15 foot 6 inch variance in the rear. The owner is now seeking a variance of 15 feet left side and one foot right side. Should this variance be granted, the building setbacks for this property would be 35 feet left side, 43.5 feet right side and would remain 60 feet front and rear. The Code of Virginia, Section 15.2- 2309(2), states that no variance shall be authorized by the Board unless it finds that a) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance It appears that this variance meets the intent of the Code of Virginia, Section 15.2- 2309(2). This request from the current setbacks of the RA zoning district may be justified. Mr. Cheran stated that these are "paper" right -of -ways, not platted right -of -ways. When the plats were done in 1890 and as we moved forward, some of these streets were on those plats, so the County has to recognize them as a right -of -way. Fligh Street is a state maintained road. Mr. Charles Lucas of Urban Engineering, and representative for H &H Builders, approached the podium. Mr. Lucas stated that the owner of this property had submitted for a variance last year and that was approved. Mr. Lucas's client intends to purchase this property and has a home that will not fit within the current approved variance. He has also placed similar homes on the two corner lots on High Street. Mr. Lucas Minute Book Page 1405 Frederick County Board of toning Appeals Minutes of August 15, 2006 believes this house type in this community would be a benefit to the community, aesthetically, and it would fit in well with the homes that currently exist on that end of High Street. Ms. Mather asked if she understood correctly that the variance that the owner got does not work with the builder's new house. Mr. Lucas responded that's right. Mr. Cheran stated that to clarify, the Board has already acted on this property. The reason this variance may meet the intent is that this is a separate application with a different house size. Chairman Catlett asked if anyone in favor of the variance would like to speak and no one responded. She then asked if anyone against the variance would like to speak and again, no one responded. The public hearing portion of the meeting was closed. Discussion On a motion by Mr. Scott and seconded by Mr. Shenk, this variance was unanimously approved. OTHER Chaiii Ian Catlett asked if there is any other business to come before the Board. As there were no other items or new business to be discussed, the meeting adjourned at 4:55 p.m. by unanimous vote. Frederick County Board of Gonmg Appeals Minutes of August 15, 2006 Respectfully submitted, Theresa B. Catlett, Chairman Bev Dellinger, Secretary Minute Book Page 1406