HomeMy WebLinkAbout17-06 Comment 2HAND DELIVERED
July 20, 2006
Open Door Baptist Church
c/o Reverend Ken I Smith
P.O. Box 2526
Winchester, VA 22604
RE: Zoning Determination for a Monument of a "Holy Cross"
Property identification Number (PIN): 33 -A -123 A
Zoning District: RA (Rural Areas) Zoning District
Dear Reverend Smith:
"A memorial stone or building erected in remembrance ofa person or event;
a lasting evidence or reminder of someone or something noble"
107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000
COUNTY of FREDERICK
Department of Planning and Development
540/665 -5651
FAX: 540 /665 -6395
This letter is in response to your correspondence dated July 19, 2006, requesting a zoning
determination on the construction of a monument versus a "Holy Cross" on the above referenced
property. In your correspondence, you indicated that the "Holy Cross" would be 100 ft. in height
and 40 ft. wide.
Section 165 -24 of the Frederick County Zoning Ordinance, allows for exceptions of the height
requirements of its zoning districts for listed structures identified in Section 165 -241 Section 165 -156
of the Frederick County Zoning Ordinance does not define monument. This section of the ordinance
makes reference to the Merriam Webster's Dictionary for any word, term, or phrase not defined in
this section of the ordinance. The Merriam Webster's Dictionary defines a monument as:
Therefore. the proposed "Holy Cross" does not meet the criteria of a monument as defined. This
proposed monument does not represent any person or event that occurred on this parcel of land. The
height requirement in the RA (Rural Areas) Zoning District shall not exceed thirty -five (35) feet.
You may build a "I -Ioly Cross" on this property as long as it is 35 feet or less. You will be required
to apply for a building permit with engineered plans for this structure. The building setbacks for this
proposed structure will be: front 60ft., sides and rear 100 ft. There are no waiver or variance actions
of these height requirements, you may appeal this determination. The process to appeal is located
below and will require an application that you may receive from this office. The Frederick County
Administrator is the only person that can waive any county fees.
Page 2
Open Door Baptist Church
c/o Reverend Ken 1 -1. Smith
July 20, 2006
You may have the right to appeal this zoning determination within thirty (30) days ofthe 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) ofthe Frederick County Zoning Ordinance. This provision
requires the submission of an application form, a 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 5300.00 filing fee (5250.00 fling fee and a 550.00
refundable sign deposit). Once the appeal application is accepted, it will be scheduled for public
hearing and decision before the BZA.
Please do not hesitate to contact me regarding any questions you may have at (540) 665 -5651.
Sincerely,
ark R. Cheran
Zoning Administrator
MRC /d!w
Th
1
lIAND -L) LIVZ'RED
July 20, 2006
C OUNTY of b 2.0:1ERIC
Department of Planning and Uecelopnre
540 166544
Nix: 54416656;•
Open Do-or Baptist Church
c o Rt.vertnd Ken H. Smith
N.O. Box 2526
Winchester, VA 22604
RE_ "tuning- Determination fora Monument of a "holy Cross"
Prope=rty Identification Number
Zoning District; RA (Rural Arerx Zoning Di District
A
ricf
Dear Revr_icod Sn1id�:
This letter is in respo to your corespontirnce dated July 19, 2006, requesting
determination on the construction of a monument versus a 'Holy Crass oo th sLto re ferenced
pnrpUTY. Lu y corresixmd enee, you indicated that the "Holy Cross" would he 100 It in height
and 60 ft. a•i d e_
Section 165 -24 of the Frederick County Zoning Ordinance, allows for exceptions of the Height
nxluircrncntsof its zoning districts for listed structures identified in Section 165 24.Section 165 -156
o f t h e Frecle rick County Zoning Or dh pro does not define monument Thi s section of the ordinance
makes referenc t the Mema Web-Qer's Diction f ora d rDw or phrase not defined in
this section of the ordinance. The Merriam Wekuter'sDictionary defines a monument as:
'"A memorial stone or burldin erected
a lcrcti.t er�iarence or 'reminder ofsomeo to one onethingrrtoble ore r r event;
�elt/t ;Af ed "1" 7 Li e Fo i/ohv P Ale
E ,i N /n%/f/(
1C4aik P Chcran
Zaung Adm.ini,lr tact r
t it Theis:rote, the proposed 'Holy Cross" does no( meet the alter of a roouurnent a.s defined. This
proposed mon u men t does not represent any person or event that occurred on this parcel of land. The
beip,ht requirement in the RA (Rural Areas] Zoning District shaf/ nos excAaed thirty-five (35) feet
o u may build a "I oiy Cross' on this properly as long as il is )5 feet or les Ynu will be required
to apNy for a building perulit with engirieere4tans for 1 1----- 7 T 11 7. bture lading setbacks for Ibis
pro postd structure will he: front 60 IL, and rear 100 R. There are_ no waiver or variance acti ons
of I II heigfri requirements, you may appeal this deti_oriioation. The proce to appeal is fouled
below and will reep.thre an application that you may receive from this office. The Frederick County
Adourin_itraior is the only person dial can vraiye arty countyfees.
You mriN have the, right to appeal thiszoningdetermination within thirty (3 ft) days the C of this
loner in aceonianct; wit h Section 15.2-231 I of die Code o f Virginia. This decision shall he final and
un2ippctialable if it is riot appe_aled within thirty (30) days Should you choos-e to appear, the appeal
YDU be :filed s.vrtii the Zoning Administratot and the Board of Zoning Appeals (LIZA) in accordance
wi A,rt icle Sec tion i 65- 1513 A(1) of the Frederick. County 7nrang Ordinance. This provision
raintics the subrai ksi on of all application forrn, a writ= stutetherd stting. forth the tiezion being
appealed; dap. of decision, the grounds thr the appeal, how the appellant is an aggrieved party, any
other in_formation you may want to su bmi t and 3 S300.00 thing fee g2sono filing fee and a $50.00
re_funda hie. sign depotat). Once the appeal application is anc Tied, it will he scheduled ler public
henri og and decision before the BZA.
Please do not hesitate io contact rat regarding any questa nns you way have at (340) 665-S631
dm- tIge-
y
Jul
19 2006 12:29PM OPIII DOOR BAPTIST CHURCH 5622310
Open Door Baptist Church
To :,A4ose R C hera n
Date: c :\u )l/ lSf ao
Attention:
PO Box 2526
Winchester, VA 22604
Phone- (540) 662 -6552
Fax (540)662 -2310
Pastor- Dr. Kenneth H. Smith
Facsimile Cover Sheet
From: /ppFn
Total pages:
p. 1
L JUL 1 9 2006
D oor R pJi s7 %ztrc6
2
Mark R. Cheran
Zoning `Administrator:
107 N. Kent S.t Suite`; 2O
Winchester; VA 22601
to:o conversation on.July 19,
We would like .to change the wording from Holy Cross to the word'
Monument on our application submitted by GaryR Oats and
Jeffrey G. Jenkins Property Identification Nurnber (5)' (PIN):
33 A -123A Stonewall District Frederick>County?
()ping to hear from you soon:
Respectively Yours;
Rev. Ken H Smith
Pastor of Open boor. Baptist Church,
Jul 19 2006 12:29PM OP 000R BRPTIST CHURCH
622310
p. 2
Mr. Cheran,
Mr. Mark Cheran
Frederick County Zoning Administrator
107 North Kent Street
Winchester, Virginia 22601
Open Door Baptist Church would like to construct a "Holy Cross" on their
property, tax parcel 33- (A) -123A, along Interstate 81 in Clearbrook. The parcel is
approximately 28 acres in size and is zoned RA (Rural Area).
The Cross will require an excavated foundation of concrete and will be
constructed of steel. The Cross will stand 100' tall and will be 60' wide. The structure
will not have any writing on it; however, it is a monument to and a sign of Christianity.
We have the following questions for the construction of the Cross.
1. How far must the structure be from adjoining properties and other structures?
2. Is a permit required from the Department of Transportation to build along
Interstate 81? If so, then who must we contact?
3. Is a permit required from Frederick County?
a. If so, then will it be a "building permit" or a "sign permit"?
4. Is this structure allowed in the zoning district?
a. If not:
i. Will we be required to apply for a waiver from the Board of
Supervisors? Or, will we be required to apply for a variance from
the Board of Zoning Appeals?
5. What are the fees associated with this process and does the County grant waivers
for fees for religious organizations?
6. Which County departments will be required to comment on any applications?
Thank you for your time and attention to this matter.
Please send your written response to:
Open Door Baptist Church
c/o Jeffery G. Jenkins
1631 Redbud Road
Winchester, VA 22603
Phone: 974 -6768
June 30, 2006
Dr. Ken 5-1 Smith Pastor
P.O. Box2526
'Winchester, 'VA. 22604
To Whom It; May Concern:
The pictures and information of the cross contained in this folder
are similar to what our church wants to erect on the 28.330
acres we own in the Stonewall District of Frederic County VA. If
I can be of further help to you please contact our office at 540
662_6
552..
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,ec Al YYYyyY f.,
HAND DELIVERED
July 2 0, 2006
Open Door Baptist Church
c/o Reverend Ken H. Smith
P.O. Box 2526
Winchester, VA 22604
RE: Zoning Determination for a Monument of a "Holy Cross"
Property Identification Number (PIN): 33 -A -123 A
Zoning District: RA (Rural Areas) Zoning District
Dear Reverend Smith:
107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000
COUNTY of FREDERICK
Department of Planning and Development
540/665 -5651
FAX: 540/665 -6395
This letter is in response to your correspondence dated July 19, 2006, requesting a zoning
determination on the construction of a monument versus a "Holy Cross" on the above referenced
property. In your correspondence, you indicated that the "Holy Cross" would be 100 R. in height
and 40 ft. wide.
Section 165 -24 of the Frederick County Zoning Ordinance, allows for exceptions of the height
requirements of its zoning districts for listed structures identified in Section 165 -24. Section 165 -156
of the Frederick County Zoning Ordinance does not define monument. This section of the ordinance
makes reference to the Merriam Webster's Dictionary for any word, term, or phrase not defined in
this section of the ordinance. The Merriam- Webster' s Dictionary defines a monument as:
"A memorial stone or building erected in remembrance of a person or event:
a lasting evidence or reminder of someone or something noble"
Therefore, the proposed "Holy Cross" does not meet the criteria of a monument as defined. This
proposed monument does not represent any person or event that occurred on this parcel of land. The
height requirement in the RA (Rural Areas) Zoning District shall not exceed thirty -five (35) feet.
You may build a "Holy Cross" on this property as long as it is 35 feet or less. You will be required
to apply for a building permit with engineered plans for this structure. The building setbacks for this
proposed structure will be: front 60ft., sides and rear 100 ft. There are no waiver or variance actions
of these height requirements, you may appeal this determination. The process to appeal is located
below and will require an application that you may receive from this office. The Frederick County
Administrator is the only person that can waive any county fees.
Page 2
Open Door Baptist Church
c/o Reverend Ken H. Smith
July 20, 2006
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, a 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 $300.00 filing fee ($250.00 filing fee and a $50.00
refundable sign deposit). Once the appeal application is accepted, it will be scheduled for public
hearing and decision before the BZA.
Please do not hesitate to contact me regarding any questions you may have at (540) 665 -5651.
Sincerely,
ark R. Cheran
Zoning Administrator
MRC /dlw
7273983907 GIBBS LAW FIRM
5666 SEMINOLE BOULEVARD, SUITE TWO
SEMINOLE, FLORIDA 33772
August 18, 2006
County of Frederick
Department of Planning and Development
107 North Kent Street, Suit 202
Winchester, VA 22601
Re: Open Door Baptist
Zoning Determination on Construction of Cross
Dear Sirs:
GIBBS LAW FIRM, P.A.
03.17.28 p.m.
TELEPHONE:1727)39 -83
FACSIMILE: 1727/398-3907
We are writing this letter to express our support for the above referenced application and
its reconsideration on appeal. It is our understanding that the zoning administrator, Mark
R. Cheran, has determined that the placement of the 100 foot tall cross by Open Door
Baptist Church on its property does not fall within one of the enumerated exceptions to
the zoning height requirements for its zoning district.
Section 165 -24 of your ordinance enumerates a number of exceptions to height
restrictions, among them is one for monuments. It is interesting to note that your code
does not define monument but adopts the Merriam Webster's definition. Accordingly, it
defines a monument as "a lasting evidence, reminder, or example of someone or
something notable or great."
Based on the foregoing, it is our legal opinion that Open Door Baptist Church's cross
precisely fits within the meaning and application of such a definition, Frankly, I can not
think of a better person in the course of history that has been more notable that Jesus
Christ. The cross is a monument to His sacrifice known and believed by many. To say
that the cross is not a monument does not comport with the definition adopted by your
ordinance.
We are hopeful that you will agree with our position. I would also like to call your
attention to the religious freedom issues that may be raised if the application and appeal
is denied. This firm is primarily dedicated to promoting and defending the free, public
www.gibbsfrm.cam
08 -18 -2006 2/3
1
7273983907 GIBBS LAW FIRM
GIBBS LAW FIRM, P. A.
�.tiosetrnd €ate. ase. ardaea
expression of Bible- believing churches and Christians across the United States. In
accordance with this commitment, we have frequently represented religious organizations
that encounter obstacles to using real property for ministry purposes.
Most recently, we have successfully represented churches under the Religious Land Use
and Institutionalized Persons Act of 2000 "RLUIPA The principles embodied in
RLUIPA enjoy broad, bipartisan support: the legislation sailed through both houses of
Congress, virtually unopposed, and was signed into law by President Clinton on
September 22, 2000. RLUIPA provides, in relevant part, that:
No government shall impose or implement a land use regulation in a manner that imposes
a substantial burden on the religious exercise of a person, including a religious assembly
or institution, unless the government demonstrates that imposition of the burden on that
person, assembly or institution-
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling govenunent interest.
We are confident that your department will seriously reconsider Open Bible Baptist
Church's application and appeal to permit the placement of the cross on its property. It is
our firm position that it is unlikely that your zoning board would able to prove that this
substantial burden upon Open Door's religious exercise either furthers a compelling
interest or is the least restrictive means of furthering such an interest. We therefore
encourage the Board to avoid these legal risks by granting the application.
We thank the Board for considering our views, and we welcome any further questions the
Board may have.
Sincerely,
GIBBS LAW FIRM, P.A.
Rita M. Briles
Admitted in Alabama Maryland
03 .17:43 p.m. 08 -18 -2006 3 /3
Planning Department
August 18, 2006
Page 2
August 18, 2006
Board of Zoning Appeal
County of Frederick
107 N. Kent St.
Winchester, VA 22601
Dear Sirs:
The following appeal is being made under protest the reason is very easy to
understand. Our requested permit which has been denied meets the
requirements as set forth in the Frederick County Code Book Section 165
24.
When we win the appeal we request that our $300.00 appeal fee be returned
to us.
Respectfully Yours
Open Door CBaptist Church Inc.
2587 Northwestern 1Pike
Winchester, VA 22603
.0r. Ken .71. Smith Pastor
Dr. Ken H. Smith
Pastor of Open Door Baptist Church Inc.
Aug 18 06 02:39p Commonwealth Attorney Of
COUNTY of FREDERICK
Board of Supervisors
540/665 -5666
540/667 -0370 fax
Richard C. Shickle Chairman
Bill M. Ewing Vice Chairman
Opequon District
Gene E. Fisher
Shawnee District
To: John R. Riley, Jr.
From: Lawrence R. Ambrogi
County Attorney
LEGAL OPINION
1 0 Utt
Issue: Would construction of a cross be subject to the 35 foot height limitation of Frederick
County Ordinance §165 -57 or would it qualify as a `monument' under §165 -24 B 1(g)
and be excepted from the height limitation?
Resolution of this issue centers on the definition of the word `monument,' The word is
not defined in §165 -156, the definitions section of the Zoning Chapter, nor is it defined anywhere
else in the Frederick County Code. Section 165 -156 indicates that the Merriam Webster's
Dictionary definition of monument shall apply, as it may be modified by established customs or
practices in Frederick County.
The Merriam Webster's Dictionary entry for `monument' is as follows:
Mon -u -ment
1. obsolete: a burial vault: SEPULCHRE 2. a written legal document or record: TREATISE
3a( I a lasting evidence, reminder, or example of someone or something notable or
great (2): a distinguished person, b: a memorial ;tone or building erected in remembrance
ofa person or event 4. archaic: an identifying mark: EVIDENCE: also: PORTENT, SIGN
5. obsolete a carved statue: EFFIGY 6. a boundary or position marker (as a stone)
7, NATIONAL MONUMENT S. a written tribute
107 North Kent Street Winchester. Virginia 2260I
Charles S. DeHaven, Ir.
Stonewall District
Gary W. Dove
Gainesboro District
Barbara E. Van Osten
Back Creek District
Philip A. Lemieux
Red Bud District
This definition lacks any requirement that the notable or great person or thing have any
connection with the location of the monument. One does not have to look far to see examples of
monuments to people or events that have no particular nexus to the land on which the monument
is placed.
rwy '0 uu uL.'up
wnmiunweann ranorney yr
1b4Ubb /344 P2
Of course all laws and ordinances are interpreted strictly against the drafters. Additional
phrases or terms can not be inserted by anyone other than the legislative body that enacted the
law or ordinance.
Courts (who are ultimately called upon to interpret statutes and ordinances) will not read
into the statutes additional terms but strictly construe the language by reasoning "if the legislative
body meant that, they could have easily included those terms."
Ln accordance with these well- established legal principles, we would anticipate a court to
rule that there is no requirement that a structure could only qualify as a monument if it
commemorates something that is connected to the land on which it is located.
I would also note that there is no evidence of any `established custom or practice' that
would apply in this situation to alter the Merriam Webster's definition.
If you have any questions or wish to discuss this matter, please feel free to contact my
office at your convenience.
cc: Members of the Board of Supervisors
Eric R. Lawrence, Director of Planning
Mark IL Cheran, Zoning Administrator
Lawrence (Ambrogi
Attorney for Frederick County
,L09 Fe eif #4.4 60 Fee,
1,
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