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Home My WebLink About04-07 ApplicationAPPEAL APPLICATION #04 -07 JOYCE E. MYERS Staff Report for the Board of Zoning Appeals Prepared :May 1, 2007 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 15, 2007 Pending LOCATION: The subject property is located at 625 Town Run Lane. MAGISTERIAL DISTRICT: Opequon PROPERTY ID NUMBER(S): 85 -A -137 PROPERTY ZONING USE: Zoning: RA (Rural Areas) District Land Use: Residential ADJOINING PROPERTY ZONING USE: North: RP (Residential Performance) East: RA (Rural Areas) South: RA (Rural Areas) West: RA (Rural Areas) Land Use: Residential Land Use: Agricultural Land Use: Agricultural /Residential Land Use: Agricultural APPEAL: To appeal the decision ofthe Zoning Administrator in the administration ofthe Frederick County Zoning Ordinance, Section 165 -50, permitted uses. REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator as to animal shelters as a permitted use in the RA zoning district. Appeal Application #04 -07, Joyce E. Myers May 1, 2007 Page 2 STAFF COMMENTS: The County of Frederick cited the applicant for operating a kennel on June 9, 2006. The applicant was adjudicated via the General District Court as to the violation of operating a kennel in the RA zoning district. The applicant's motion to dismiss to the General District Court identifies the use on this property to be an animal shelter, not a kennel. The General District Court agreed with the applicant that the use on this property was not a kennel as defined by the Frederick County Zoning Ordinance. On February 27, 2007, the applicant was cited for operation of an animal shelter in the RA (Rural Areas) Zoning District. Section 165 -50 of the Frederick County Zoning Ordinance does not allow for animal shelters in the RA zoning district. In accordance with the Frederick County Zoning Ordnance, animal shelters are classified by Standard Industrial Classification (SIC) 0752 as defined below: Standard Industrial Code (SIC) 0752- Animal specialty services, except veterinary, with all activities and animals kept within a filly enclosed primary structure. SIC -0752 is only a permitted use in the B -2 (Business General) and B -3 (Industrial Transition) zoning districts. Animal shelters are treated as public buildings in the M -1 (Industrial, Light) and M- 2 (Industrial, General) zoning districts (Frederick County Animal Shelter). Frederick County Zoning does not delineate between private, public, or rescue animal shelters. Therefore, the animal shelter located on this property is not a permitted use in regards to Section 165 -50 of the Frederick County Zoning Ordinance and is not permitted in the RA zoning district. STAFF CONCLUSIONS FOR THE MAY 15, 2007 MEETING: Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165 -50, animal shelters are not an allowed use in the RA zoning district. I'P #04 -07 POYPt Location sh 9 85 A 137A Q Qs* 85 A 136 Location in the County Map Features Application S Lakes /Ponds Streams Streets Primary Secondary Terciary CI Urban Development Area 1, 1► SWSA Frederick County, VA Appeal APP# 04 07 Application Location in Surrounding Area 0 50 100 20peet Case Planner: Mark Joyce Myers Parcel ID: 85 -A -137 I'P #04 -07 Zoning Location in the County Map Features Application 16 Lakes /Ponds Streams Streets Primary Secondary Tertiary Urban Development Area SWSA Frederick County, VA 50 100 Case Planner: Mark Appeal APP# 04 07 Application Joyce Myers Parcel ID: 85 A 137 Zoning B1 (Business, Neighborhood District) 82 (Business, General District) Gs 83 (Business, Industrial Transition District) EM (Extractive Manufacturing District) e HE (Higher Education District) MI (Industrial, Light District) M2 (Industrial, General District) MI-11 (Mobile Home Community District) MS (Medical Support District) R4 (Residential, Planned Community Dislri 85 (Residential Recreational Community C RAZ (Rural Area Zone) RP (Residential Performance District) Location in Surrounding Area 200 l -ent l 'P #04 -07 i Land Use Frederick County, VA Location in the County Map Features Q Application Co Lakes /Ponds Streams Streets Primary *r Secondary Terciary :1 Urban Development Area (29, M SWSA cga 0 50 100 Appeal APP# 04 07 Application Joyce Myers Parcel ID: 85 -A -137 Long Range Land Use Rural Community Center Residential Business Industrial Institutional Recreation Historic Mixed -Use Planned Unit Development Location in Surrounding Area Case Planner: Mark 20Peet 'P #04 -07 Aeri Frederick County, VA Location in the County Map Features G Application aS Lakes /Ponds Streams Streets 'is, Primary Secondary Terciary Urban Development Area SWSA Appeal APP# 04 07 Application Joyce Myers Parcel ID: 85 -A -137 Location in Surrounding Area 0 50 1 ®feet Case Planner: Mark VIRGINIA: COUNTY OF FREDERICK, VA, v. JOYCE E. MYERS, Defendant. IN THE GENERAL DISTRICT COURT FOR FREDERICK COUNTY, VIRGINIA Criminal Division Case No. GC06 -8042 MOTION TO DISMISS COMES NOW Defendant, Joyce E. Myers, Ph.D. "Defendant" or "Myers by counsel,-and moves this Honorable Court to dismiss the misdemeanor summons filed against her by the County of Frederick "County in its entirety. Myers basis for this motion is that the facility she operates is not a kennel as defined by the Frederick County Zoning Ordinance. Myers operates the not for profit animal rescue facility, Paws and Whiskers, a 501(c)(3) tax exempt charitable organization, (the "Shelter on property located at 625 Town Run Lane, Stephens City, Virginia (the "Property The Property is zoned Rural Areas "RA ?The; Sheltersdedicateda ore moving dog and cats from shelterswheie;they,would otherwise tie euthanized:and adopting them out to suitable homes'? She has received national recognition for her efforts in this area. Myers neither sells the animals, nor receives compensation for her efforts. On June 15, 2006, Myers received a notice letter of violation from the County with respect to operation of her Shelter, stating that a Conditional Use Permit "CUP was required, but had not been obtained. A summons was issued for Myers on July 26, 2006 alleging a violation of Section 165 -51(K) of the Frederick County Zoning Ordinance. (A copy of the summons is attached hereto as "Exhibit 1 The charges against Myers state that she did "unlawfully violate Frederick County Zoning Ordinance to wit: Operation of Kennel without Conditional Use Permit." However, Section 165 -156 of the Zoning Ordinance defines a Kennel as "a place prepared to house, board, breed, handle or otherwise keep or care for dogs for sale or in return for compensation." (Emphasis added.) (A copy of Section 165 -51(K) the Frederick County Zoning Ordinance is attached hereto as "Exhibit 2 and a copy of the relevant portion of Section 165 -156 of the Frederick County Zoning Ordinance is attached hereto as "Exhibit 3 As stated above, Myers does not sell animals or receive compensation. In addition, there is no provision in the Frederick County Zoning Ordinance that places a limit on the amount of cats and dogs that can be located on property zoned RA. Therefore, not only does Myers not meet the definition of a kennel, but her activities are consistent with RA zoning uses. In summary, for the above stated reasons, Myers' activities on the Property do not meet the definition of a kennel as defined in the Frederick County Zoning Ordinance, she has not violated the Frederick County Zoning Ordinance, and therefore, the charges against her should be dismissed. WHEREFORE, Defendant Joyce E. Myers respectfully requests this Honorable Court dismiss the summons issued against her based on the grounds stated above and provide such other and f relief as may be deemed appropriate. Tho as or a son, Esquire Virg is Bar No. 28332 Erik W. Fox, Esquire Respectfully submitted, Joyce E. Myers By Counsel Virginia Bar No. 65456 LAWSON AND SILEK, P.L.C. P.O. Box 2740 Winchester, VA 22604 Phone: (540) 665 -0050 Fax: (540) 722-4051 Counsel for Defendant Joyce E. Myers CERTIFICATE SERVICE I HEREBY CERTIFY that on the h. ay of r 1i 2007, a copy of the foregoing Motion to Dismiss was mailed first class, postage prepaid to: Lawrence R. Ambrogi, Esquire County Attorney 107 North Kent Street chester, VA 22601 Tho as Moore Lawson, Esquire Erik Fox, Esquire 165 -82 FREDERICK COUNTY CODE 165 -82 B. [Amended 8 -8 -1990; 6 -11 -1991; 6 -8 -1994; 7 -10 -1996; 2 -26 -1997; 8 -13 -1997] B2 Business General District. The intent of this district is to provide large areas for a variety of business, office and service uses. General business areas are located on arterial highways at major intersections and at interchange areas. Businesses allowed involve frequent and direct access by the general public but not heavy truck traffic on a constant basis other than that required for delivery of retail goods. General business areas should have direct access to major thoroughfares and should be properly separated from residential areas. Adequate frontage and depth should be provided, and access should be properly controlled to promote safety and orderly development. Nuisance factors are to be avoided. (1) Allowed uses shall be as follows: Standard Industrial Allowed Uses Classification (SIC) Veterinary offices with all activities 074 and animals kept within the fully enclosed primary structure, excluding the following: [Amended 8 -24 -2004] Veterinary services livestock 0741 Animal speciality services, except veterinary, 0752 with all activities and animals kept within the fully enclosed primary structure [Added 1-10-2001] Communication facilities and offices, 48 including telephone, telegraph, radio, television and other communications, excluding the following: [Amended 8 -24 -2004] Communications services, not elsewhere 4899 classified Editor's Note: The entry for electric, gas and other utility facilities and offices, SIC No. 49, excluding sanitary services, SIC No. 495, which immediately followed, was repealed 8 -24 -2004. 16614 04 30 2006 FREDERICK COUNTY CODE 165 -82 165 82 Standard Industrial Classification (SIC) Allowed Uses Motion picture theaters, except drive -in Videotape rental Amusement and recreation services operated indoors 7998 Golf driving ranges and miniature golf courses 80 Health services 81 Legal services 8351 Child day -care facilities 86 Membership organizations 87 Engineering, accounting, research, management and related services, excluding the following. [Amended 8 -24 -2004] Testing laboratories General business offices Model home sales offices Self- service storage facilities ,Public buildings Public utility distribution facilities Business signs Directional signs Building entrance signs Residential uses which are accessory to allowed business uses Parks Churches 16618 7832 784 79 8734 04 -25 -200 165 -82 FREDERICK COUNTY CODE Conditional Uses 165 82 Standarc Industria Classificati (SIC) 16620 (a) Such uses shall be located at least 2,500 feet from the property line of existing adult retail uses, schools, churches, parks, day -care facilities and residential uses and districts. (b) Such uses shall not be permitted in shopping centers and /or multi- tenant buildings. (c) All merchandise display areas shall be limited to enclosed structures and shall not be visible from the outside. (d) Business signs shall not exceed a maximum of 25 square feet. No wall mounted signs or window displays shall be permitted. (e) Hours of operation shall be limited to between 9:00 a.m. and 11:00 p.m. *C. B3 Industrial Transition District. The intent of this district is to provide for heavy commercial activities, involving larger scale marketing or wholesaling, in locations that are separate from but in the vicinity of business and industrial areas. In some cases, such areas may be transitional, located between business and industrial areas. In these areas, there will be a mixture of automobile and truck traffic. Some of the uses in this district will require large areas of and and may have outdoor storage and display. It is intended that the uses in this district shall not be sources of noise, dust, smoke or other nuisances. Such industrial transition areas shall be provided with safe and sufficient access. 04 25 2005 165 -82 Standard Industrial Allowed Uses Classification Veterinary services with all activities and (SIC) animals kept within the fully enclosed 074 primary structure [Amended 1 -10 -2001] Animal speciality services, except veterinary, with all activities and animals 752 kept within the fully enclosed primary structure [Added 1 -10 -2001] Landscape and horticultural services Offices and storage facilities for 078 building construction contractors, 15, 16 and heavy construction contractors and 17 special trade contractors Commercial printing Local and suburban transit and 275 interurban highway passenger transportation 41 Motor freight transportation and warehousing Transportation by air 42 Transportation services 45 47 Communication facilities and offices, including telephone, telegraph, radio, 48 television and other communications Electric, gas and other utility facilities and offices and trucking and 49 warehousing, excluding the following: Sanitary services Advertising specialties wholesale 495 [Added 8 -24 -2004] 5199 Building materials, hardware, garden supply, mobile home dealers and retail 52 nurseries 16621 ZONING 04 25 2005 165 -82 165 -82 ZONING 165 -82 General business offices Model home sales office Accessory retailing 4' Public buildings Public utility distribution facilities Business signs Directional signs Building entrance signs Residential uses which are accessory to allowed business uses Parks 16623 Standard Industrial Classification Allowed Uses (SIC) Scale repair service [Added 8 -24 -2004] 7699 Surgical instrument repair [Added 8 -24 -2004] 7699 Drive -in motion picture theaters 75 Amusement and recreation services 79 operated indoors Self- service storage facilities Vocational schools 824 Business associations 861 Professional membership organizations 862 Labor unions and similar labor organizations 863 Engineering, accounting, research, 87 management and related services Testing laboratories [Added 8 -24 -2004] 8734 12 -15 -2004 dustry :coup No. 5 Industry No. AGRICULTURE, FORESTRY, AND FISHING 33 ANIMAL SERVICES, EXCEPT VETERINARY 0751 Livestock Services, Except Veterinary Establishments primarily engaged in performing services, except veterinary, for cattle, hogs, sheep, goats, and poultry. Dairy herd improvement associa- tions are also included in this industry. Establishments primarily engaged in the fattening of cattle are classified in Industry 0211. Establishments engaged in incidental feeding of livestock as a part of holding them in stockyards for periods of less than 30 days (generally in the course of transportation) are classified in Transportation and Public Utilities, Industry 4789. Establish- ments primarily engaged in performing services, except veterinary, for ani- mals, except cattle, hogs, sheep, goats, and poultry are classified in Industry 0752. Artificial insemination services: live- stock Breeding of livestock Cattle spraying Cleaning poultry coops Dairy herd improvement associations Livestock breeding services Milk testing for butterfat fp Animal shelters Artificial insemination services: animal specialties Boarding horses tfr Boarding kennels r Breeding of animals, other than cattle, hogs, sheep, goats, and poultry Dog grooming Dog pounds Honey straining on the farm )76 FARM LABOR AND MANAGEMENT SERVICES Pedigree record services for cattle, hogs, sheep, goats, and poultry Sheep dipping and shearing Showing of cattle, hogs, sheep, goats, and poultry Slaughtering, custom: for individuals Vaccinating livestock, except by veteri- narians 4 0752 Animal Specialty Services, Except Veterinary Establishments primarily engaged in performing services, except veterinary, for pets, equines, and other animal specialties. Establishments primarily en- gaged in performing services other than veterinary for cattle, hogs, sheep, goats, and poultry are classified in Industry 0751. Establishments primarily engaged in training racehorses are classified in Services, Industry 7948. Pedigree record services for pets and other animal specialties Showing of pets and other animal spe- cialties Training horses, except racing Training of pets and other animal spe- cialties Vaccinating pets and other animal spe- cialties, except by veterinarians 0761 Farm Labor Contractors and Crew Leaders Establishments primarily engaged in supplying labor for agricultural pro- duction or harvesting. Establishments primarily engaged in machine harvest- ing are classified in Industry 0722. Crew leaders, farm labor: contract Farm labor contractors 0762 Farm Management Services Establishments primarily engaged in providing farm management services, including management or complete maintenance of citrus groves, orchards, and vineyards. Such activities may include cultivating, harvesting, or other specialized activities, but establishments primarily engaged in performing such services without farm management services are classified in the appro- priate specific industry within Industry Group 072. Citrus grove management and mainto- Vineyard management and mainte- nance, with or without crop services nance, with or without crop services Farm management services Orchard management and mainte- nance, with or without crop services Ara. ;ALM. Mindmaktk7411115Wdmiligi.:Q&' MI AZtr;-0111 a l enallipVialliabb Z" 3/4 "N i t' *16304010."' r-ia•mrloym 4;44/4 Ve-.4110, WIINOktol■ 4 41.!Ir ":;60411166, "k`s 41111Prddr**.„;40,. 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"i'.".. .e4V1f, il a• q AlMarikVir.ii3//raird 01:41 4134V441itiliVrAil p OttiViNhAtelitts,N4 A i rkri• ‘z P Arall V: '11 ;:ii".' +43s Viiar• i:t.z nitzi!:, 2: di tik," I:4Z t■ '.....1 a IN .liiiii ‘AtiMiliie I t .',,i 4 9 t vi l �k _o .i �p "17:. 4 iB}�1 o ,,,yam y•u �wA N... �M1cD� q i P J4LyR .�p ��73efipty+�.{0 1 Macy :24 .•.4 R7 •i t's ��Qi do vnif I If li ARN f I I/ /II !.6.'5••=:,•••,i-L.-''..-• May 24, 2007 Thomas M. Lawson, Esquire PO Box 2740 Winchester, VA 22604 RE: Appeal #04 -07, Joyce E. Myers Dear Mr. Lawson: This letter is to confirm that the above referenced appeal application was approved by the Board of Zoning Appeals at their meeting on May 15, 2007. Your application appealed the decision of the Zoning Administrator as to animal shelters as a permitted use in the RA (Rural Areas) Zoning District. The subject property is located at 625 Town Run Lane, Property Identification Number 85 -A- 137, in the Opequon Magisterial District. If you have any questions regarding this action, please feel free to call this office. Sincerely, de ark R. Cheran Zoning and Subdivision Administrator MRC/bhd Department o cc: Joyce E. Myers, 625 Town Run Lane, Stephens City, VA 22655 Jane Anderson, Real Estate John Trenary, Inspections Bill Ewing, Opequon Magisterial District Supervisor Roger Thomas and Rick Ours, Opequon Magisterial District Commissioners Commissioner of Revenue 107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000 RICK anning and Development 540/665 -5651 FAX: 540/665 -6395 2. APPLICANT: Stephens City, VA 22655 a APPLICATION FOR APPEAL IN THE COUNTY OF FREDERICK, VIRGINIA OFFICE USE ONLY- Submittal Deadline For the meeting of Appeal Application Submittal Date Fee Paid yes initials: MUST BE TYPED OR FILLED OUT IN INK PLEASE PRINT 1. The applicant is the owner X other (Check one) OCCUPANT: (if different) NAME: Dr. Joyce E. Myers NAME: ADDRESS: 625 Town Run Lane ADDRESS: TELEPHONE: (540) 869 -5424 TELEPHONE: The property is located at (give exact directions and include State Route numbers): From Route 277, turn South onto Town Run Lane. House on Comer of Town Run Lane and Peace and Plenty Lane. 4. Magisterial District: Opequon 5. 14 -Digit Property Identification No.: 85 -A -137 6. The existing zoning of the property is: RA 7. The existing use of the property is: RA 8. Adjoining Property: North Residential East RA South Wooded West Agricultural USE ZONING Notice of Violation Attached as Exhibit 1 RP RA RA RA 9. Describe the decision being appealed. (Attach a copy of the written decision.) 10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision. (This may be provided on separate sheet.) The Applicant disagrees with the definition of animal shelter as there does not currently appear to be a definition of animal shelter contained in the Zoning Ordinance. Further the determination that the presence of dogs and structures used to contain animals does not rise to the definition cited in the County's letter. The stated requirement to remove structures for dogs is not a requirement under the ordinance. Also the interpretation reached by the Zoning Administrator of Section 165 -50 is in error. 11. Additional comments, if any: Arcadia Development Address: 501 Town Run Lane Property ID# 85 -A -138 Wm. L. Ramey Address: 834 Peace Plenty Lane PropertylD# 85- A -137E Jerry L. See Address: 307 Buckingham Drive Property ID# 85 -A -134 Wm. L. Ramey Address: 824 Peace Plenty Lane Property ID# 85 -A -60 Address: Property ID Address: Property ID Address: Property ID Address: Property ID Address: Property ID Address: Property ID Address: Property ID 12. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the appeal is being sought, including properties at the sides, rear, and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notified by mail of this application: (Please list complete 14 digit property identification number.) NAME SIGNATURE OF APPLICANT BZA PUBLIC HEARING OF AGREEMENT APPEAL .b d 1 (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as described herein. I agree to comply with any conditions required by the BZA. I authorize the members of the BZA and Frederick County officials to go upon the property for site inspection purposes. I hereby certify that all of the statements and information contained herein are, to the best of my knowledge, true. SIGNATURE OF OWNER DATE OFFICE USE ONLY- //n 7 -DATE- APPEAL OVERRULED APPEAL SUSTAINED SIGNE DATE: DATE 5 „ZS: acre 7 ACTION: A CHAIRMAN (if other than applicant) HAND- DELIVERED Febnary 27, 2007 Joyce E. Myers 625 Town Run Lane Stephens City, VA 22655 RE: 625 Town Run Lane; Zoning District: RA (Rural Areas) Property Identification Number (PIN): 85 -A -137 Dear Ms. Myers: 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 On February 27, 2007, I visited the above referenced property in response to a complaint regarding an illegal animal shelter. My inspection of the site revealed the presence of several dogs and multiple structures used for containment of animals. An animal shelter is defined as an establishment, especially one supported by charitable contributions, that provide a temporary home for dogs, cats, and other animals that are offered for adoption. In accordance with Section 165 -50 of the Frederick County Zoning Ordinance, animal shelters are not a permitted use in the RA (Rural Areas) Zoning District. Specifically, resolution of this violation may be accomplished by removing the animal shelter. Failure to comply with the Zoning Ordinance will result in a criminal complaint being filed against you. This office will allow 30 days from the retrieval date of this letter to resolve this violation. You may have the right to appeal the above notice of violation within 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 un- appealable, if it is not appealed within 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, the date of Page 2 Joyce E. Myers Re: 625 Town Run Lane February 27, 2007 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 that you may have at (540) 665 -5651. Sincerely, irL-77-1 Kevin T. Henry Planning Technician KTH/dlw