HomeMy WebLinkAbout09-24 BZA Staff Report
VARIANCE APPLICATION #09-24
BALDWIN GAP RANCH, LLC (DAVID & LINDA LOWERS)
(JACK C. HANSSEN POA)
Staff Report for the Board of Zoning Appeals
Prepared May 3, 2024
Staff Contact Mark R. Cheran Zoning Administrator
This report is prepared by the Frederick County Planning Staff to provide information to the
Board of Zoning Appeals to assist them in making a decision on this request. It may also be
useful to others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
May 21, 2024
Public Hearing; Action Pending
LOCATION: The property is located at 5522 Cedar Creek Grade.
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER: 83-A-1C
PROPERTY ZONING & USE: Zoned: RA (Rural Areas) District
Land Use: Residential
ADJOINING PROPERTY ZONING & USE:
North: RA (Rural Areas) Use: Vacant
South: RA (Rural Areas) Use: Vacant
East: RA (Rural Areas) Use: Residential
West: RA (Rural Areas) Use: Vacant
VARIANCE REQUESTED: The Applicant is requesting a variance from the provisions of Section
165-201.05 (Secondary or accessory uses) restrictions limiting the size of accessory dwelling to “no
more than 25% of the gross floor area of the primary residential structure on the lot”. The existing
primary dwelling has 4,180 sq. ft. in gross floor area, and the owner wants to construct an accessory
dwelling containing up to a maximum of 2,600 sq. ft.
REASON FOR VARIANCE: The property owner wants to construct a dwelling greater than
25% of the gross floor area of the primary residential structure on the property.
STAFF COMMENTS: Section 165-201.05 B of the Frederick Zoning Ordinance allows for
accessory dwellings on property that has a single-family dwelling as long as the following
conditions are meet: The floor area of the accessory dwelling shall be no more than 25% of the
gross floor area of the primary residential structure on the lot or a minimum of 500 sq. ft. or
whichever is greater. (adopted April 24, 2024)
This property is subject to a conservation easement (“Easement”) (see enclosure) which prohibits
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subdivision of the property and governs the size and locations of principal and accessory
structures. The owner acquired the property in February of 2022. The owner contends that the
Easement imposed on the property by the previous owner property produced the hardship and
caused the owner the inability to use the property.
In this case, the property owner should have done their due diligence as to the title history, which
would have revealed the restrictions that have been placed on this property prior to acquiring it.
Most real estate purchase contracts expressly allow time for the purchaser to examine the title to
their satisfaction before obligating the purchase. It is the fault of the purchaser as to not knowing
the restrictions of the easement. The strict application of the Frederick County Code does not
produce an undue hardship as the hardship is self-inflicted by the applicant.
This application for a variance does not meet the requirements as set forth by The Code of
Virginia 15.2-2209 (2), and the Frederick County Zoning Ordinance. Specifically, Section 165-
201.05 of the Frederick County Zoning Ordinance does not produce an unreasonable restriction
or hardship on the property.
STAFF CONCLUSIONS FOR THE MAY 21, 2024, MEETING:
The Code of Virginia 15.2-2309 (2) and Code of Frederick County 165-1001.02, states that no
variance shall be granted unless the application can meet the following requirements:
1) The property interest for which the variance is being requested was acquired in good faith.
2) Any hardship was not created by the applicant for the variance.
3) The granting of the variance will not be a substantial detriment to adjoining property or
nearby properties in the proximity of that geographical area.
4) The condition or situation of the property concerned is not of so general or recurring a nature
as to make reasonably practicable the formulation of a general regulation to be adopted as an
amendment to the ordinance.
5) The granting of the variance does not result in a use that is otherwise permitted on such
property or a change in the zoning classification of the property.
6) The relief or remedy sought by the variance is not available through a special exception or the
process for modification of a zoning ordinance.
It appears that this variance does not meet the intent of the Code of Virginia, Section 15.2-2309
(2), and the Frederick County Zoning Ordinance. This variance request Section 165-201.05 of the
Frederick County Zoning Ordinance may not be justified, as the accessory structure requirements
can be met by a 1,045 square foot structure (25% of the size of the principal structure). Staff
would recommend denial of this variance application. The strict application of the Frederick
County Zoning Ordinance does not produce an unreasonable restriction on the property, and the
variance would only address a hardship created by the owner, which Code of Virginia 15.2-2309
(2) and Frederick County Zoning Ordinance do not permit.
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