HomeMy WebLinkAbout18-86 James & Mary Bragg - Gainesboro District - BackfileOld 46 -1
COUNTY of FREDERICK
Departments of Planning and Building
703/665-5650
June 23, 1988
James and Mary Bragg
P.O. Box 1441
Winchester, VA 22601
Dear Mr. and Mrs. Bragg:
This letter is to confirm the Frederick County Board -of Zoning Appeals, action at
their meeting of June 21, 1988:
Approval of Variance Request #018-86 of James and Mary Bragg for a 48 foot front
yard variance fora garage. This property is located on Route 600 in the
Gainesboro Magisterial District.
If you have any questions regarding your variance, please do not hesitate to call
this office.
Sincerely,
en . Gyuripnh
ty irector
SMG/dkg
9 Court Square - P.O. Box 601 - Winchester, Virginia - 22601
33
34
• 35
36
37
• 38
39
40
41
422
43
•44
45
46
47
48
51
52
54
5!
5E
5)
SE
1 0
29000-ADO-0000-0000-0041-0 BRAGG9 JAMES RICHARD L BA CREEK
A RY -ELL E N
SILER RT. 30X 337
- ------- W.-INCH-E-STER I VA.
22601
lgoao-AOO-Od-O—d---dO(30-0050-0—Vi-N--C--HESTER-FREDERlCK.-COUNTY JOHN FOUT EST*
CONSERVATION CLUB, INC.
C/O GEORGE QUARLES
1435 GRAYSTONE TERRACE
WINCHESTERI—VA. 22601
29000-A00-0000-0000-0080-0 MILLER, STEVEN----.A-,.-,,------ BACK CREEK.
-
& PAULETTE DAWN
BLOOMERY- STAR RT . BOX 1027D
WINCHESTER
22601
29000-AGO-0000-0000-0040-0 MCCREADY, CHARLES --PATRI.-CK--- BACK -CREEK
3OX 856
— ------- - ----- -'-.-- W I N C H E S T E R , VA-a.-.1 - - ------- ------
22601
29000-A00-0000-0000-0039-0 DELLINGER, I ENE BACK CREEK
2 BOX 509
22601
29000-A00-0300-0000-0046-0 CRITES, DOROTHY Me BACK CREEK_
6OX 838
WINCHESTER, VA.
22601
4.25 Al RS 9,300 29,300
5.50 Al AG
5,500
4*82 Al AG 6,800 3,200
3.50 Al RS 81500 299100
29.75 Al AG 3795
3*66 Al RS 7,700 409100
2 9000- AOO- 0000-000Q-70-005-1 L VERT. . MILTON J. RITTER 48.96 Al AG 49,000
E LACY 0. BATEMAN ET ALS --
516 BALDWIN ROAD
RICHMOND, VA.
23229
0
PLANNING
COUNTY of FREDERICK
P.O. Box 601 9 Court Square t--5'88 ^'�E �«
i _ ,) r•
Winchester, Virginia 22601
Na
Acl
f A t
(0 a 9 is ///�
APR
L(1.� 2 Est P l C/Y LoM M Dt,
pp V �'
Y, � AND B (0 N1Vlp��
���°:� U/ LNG
i.
74
71
��rr7'l�mr�l;
�! �%h-eke)
Uyglql�-y, /leas o�vs .. l�rJe� �cs
oC(1/il/l f vs �o a./ i1l
C�iJ c.P)/�1o4'7 _ w-e/. ��5
7h����%�
pcJ� G� dgl-UE u�ay. i�Jfo ��ie� O.�ee�
�c�l�cea�j, �
q, C� - A/- - A
'90I � �%Rf�SS� P�h�iZe%{
s `74 6 16 //)o A-e,e f119-c6,5 4:),.
v �
f�
-TnJ C /,3 6 in� (,tJe� (,tJ�lcocn � Vov/�,
UU�y a` ��6�Idn '7L bo���rz CL
lo -A-e� sial�/ �-
Jh1 I7deuaodcl)lJdl �loYJe�uJ�i�l oSic✓�: ,
ot) ue4
�ION6Iclerk-b'oN1 �
lq)q-r iJ2
0[9 -yfv r 2,
VARIANCE #018-86
James and Mary Bragg
LOCATION - Route 600, turn right off of Route 522, first house on right
MAGISTERIAL DISTRICT - Gainesboro
TAX MAP & PARCEL NUMBER - Tax Map 29, Parcel 41
LAND USE AND ZONING - Residential land use, and A-1 (Agricultural Limited) zoning
ADJACENT LAND USE AND ZONING - Residential and vacant land uses, and A-1
(Agricultural Limited) zoning
PROPOSED USE AND IMPROVEMENTS - A garage
VARIANCE - A 48 foot front yard variance
REASON FOR VARIANCE - The location of septic system, well, pool, garage, grape
vine, and ridge location.
BACKGROUND INFORMATION - This application was previously approved for a 20 foot
front setback variance and more recently denied for a 48 foot front setback. This
is a re -submittal of the previous application for consideration. (See attached
memo to Mr. John Riley listing the events of this case).
A 20 foot front yard variance has been approved for this garage. The garage has
been constructed and inspected. The prior application indicated that the
right-of-way for State Route 600 was less than 50 feet in width, requiring an 80
foot setback from the center of the right-of-way.
Upon investigation of this project, the staff has found that:
1. The right-of-way at the garage is 70 feet wide.
2. The required setback would be 60 feet from the edge of the right-of-way.
3. To allow the garage, a 48 foot variance is needed. 60 feet required, less 12
feet, equals the 48 foot needed variance.
STAFF COMMENT - The garage has been inspected and approved by the staff. It is
apparent that a mistake was made during the inspection stage of this project.
Thirty feet was measured and approved from the pavement edge, not the
right-of-way.
04"g,- ?
APPLICATION FOR VARIANCE
IN THE
COUNTY OF FREDERICK, VIRGIN
Variance Application No. - Submittal Meade �Yit� �
Application Date 5- IlL- For the M ti_
Fee Paid 45 Dry
1. The applicant is the (owner) (other) 6 4 T one)
2. NAME: S F c OCCUPANT: (If other than applicant)
ADDRESS : I p I �,4 I NAME:
Q �x ADDRESS
TELEPHONE: TELEPHONE:
3. T e prloperty is located at (please give exact directions)
G��.. r r � �� D�-F C;� J�o�,� l'j- �IQCe,. D►'� r!�h�)
4. The property has a frontage of feet and a depth of /c)
feet and consists of acres. (Please be exact)
5. The propert is.ownPd-by
� � 4 tip. as evidenced by
deed from ctrtc0 _gecorded in deaw book no. 5 'Z
on page registry of the County of
6. This property i �dign��ted as parcel no. 4/ on tax map no.
('7 in theQcC_LC4r-� Magisterial District. ,
7. Property Identification Number: L9000 - Iq C09/_ 0
8.
The
existing
zoning
of
the property is: Jq-1
0_�J
9.
The
existing
use of
the
property is:( -,:A
10. The adjoining properties zoning is:
11.
12.
The adjoining properties land use is: ` Q„Q.___
Describe the variance sought in terms of distance and type. (For
example -_A 3' rear yard variance.for an attached two car garage.)
13. List specific reasons) why the variance is being sought in terms
of:
- ex tional narrowness, shallowness size, or� of a specific
piece of property, or
xce tional topographic conditions or other extraordinary
situation or con i ion of-b uch- ece of property, or
- the use or development of property immediately adjacent thereto;
Page Two
Variance
ti
D/ Y-e6-Y
14. The following are all of the individuals, firms, or corporations
owning property adjacent to both sides and rear and in front of
(across street from) the property for which the variance is being
sought. (Use additional pages if necessary). These people will be
notified by mail of this application: (Please list complete 21-digit number)
NAME
.. -
rid
:•• -=�
HVINEW1 J
id r -
RF��
•. % i & : a! A+r
•.. -
wl ills
ff
Pro
pe
Coco sae.►
C0o
Address:
Prop
Address:
Prop
d -
Property ID#:
Add
Property
15. Additional comments, if any
I (we), the undersigned, do hereby respectfully agree to comply
with any conditions required by the Board of Zoning Appeals of the
County of Frederick, Virginia, and authorize the members of the Board
Zoning Appeals or a representative of the County to go upon the
property for the purpose of making site inspections. I/we hereby
depose and say that all of the above statements and the statements
contained in any exhibits transmitted are true.
Signature of
Applic
Signature of Owner:
>L
of
For Office Use Only ri-
BOARD OF ZONING APPEALS PUBLIC HEARING ACTION OF (date)
Approval Denial CHAIRMAN:
UP- TO -(, �'
VARIANCE #018-86
James and Mary Bragg
LOCATION - Route 600, first place on right, off of Route 522
MAGISTERIAL DISTRICT - Gainesboro
TAX MAP & PARCEL NUMBER - Tax Map 29, Parcel 41
LAND USE AND ZONING - Residential land use and A-1 (Agricultural Limited) zoning.
ADJACENT LAND USE AND ZONING - Residential and wooded vacant land uses, and A-1
(Agricultural Limited) zoning
PROPOSED USE AND IMPROVEMENTS - 18' x 24' Garage
VARIANCE - 48 foot front yard setback
REASON FOR VARIANCE - 1) Septic location; 2) Well location; 3) Pool and garage
location; 4) Grape vine and ridge location.
BACKGROUND INFORMATION - A 20 foot front yard variance has been approved for this
garage. The garage has been constructed and inspected. The prior application
indicated that the right-of-way for State Route 600 was less than 50 feet in
width, requiring an 80 foot setback from the center of the right-of-way.
Upon investigation of this project, the staff has found that:
1. The right-of-way at the garage is 70 feet wide.
2. The required setback would be 60 feet from the edge of the right-of-way.
3. To allow the garage, a 48 foot variance is needed. 60 feet required, less 12
feet, equals the 48 foot needed variance.
STAFF COMMENT - The garage has been inspected and approved by the staff. It is
apparent that a mistake was made during the inspection stage of this project. 30
foot was measured and approved from the pavement edge, not the right-of-way.
APPLICATION FOR VARIANCE
IN THE
COUNTY OF FREDERICK, VIRGINIA
Variance Application No.
Application Date
Fee Paid 4-6-M
Submittal Deadline is
For the Meeting of
1. The applicant is the (owner) V (other) (check one)
2. NAME: n w OCCUPANT: (If other than applicant)
ADDRESS: _ P. �. Ba i NAME:
til I ig(JoistiY VA .21_ ADDRESS:
TELEPHONE: EIL - 3144 TELEPHONE:
3. The property_is located at (please give exact directions)
4. The property has a frontage of 4, S feet and a depth of NO
feet and consists of 4.0alSj acres. (Please be exact)
5. The property is owned by Thmis-i N(lyll 8r C4 as evidenced by
deed from 1r 1-1—$ LLpYoL !)C)LViS recorded in deeld book no.
on page L >w, registry of the County of FT-0dL.rlC.1'-'—`►-
6. This property is designated as parcel no. /it on tax map no.
in the 1 r Magisterial District.
7. Property Identification Number: 0noco- A Ck7 oocc- ccoo- cc/.f1 -(o
8. The existing zoning of the property is:-j_____ar� ('L1lfi�v�
9. The existing use of the property is:SjdQyj
10. The adjoining properties zoning is: r } A�.cjLl f2,r-L a
1 1 . The adjoining properties land use is: k1--)i 11 i 1 t Wooded �
vacant
12. Describe the variance sought in terms of distance and type. (For
example - A 3' rear yard variance for an attached two car garage.)
f-2.D f Xc-- fD2
13. List specific reasons) why the variance is being sought in terms
of:
xcep_tional_ narrowness, shallowness size, or sha a of a specific
piece of property, or
- ceptional topographic conditions or other extraordinary
situation or con ition of such piece of property, or
the use or development of property immediately adjacent thereto
-- 7
Page Two
Va r_•iance
14. The following are all of the individuals, firms, or corporations
owning property adjacent to both sides and rear and in front of
(across street from) the property for which the variance is being
sought. (Use additional pages if necessary). These people will be
notified by mail of this application: (Please list complete 21-digit number)
NAME
1 . _
1 l tJ lC l'1 �5i_Q�i " -t"zCl L1'(CI�
Crn5P-r,vatim Cab
Address: 1435 4 -tuyu -Lvro e,
Pro ert ID :
000 , A C-n - co cc - OOCl� - (X�Sb O
2.
C , kCbj Lid ujaL
Address:
Propert ID, :
G' CW _ - U�00 - cow
- 0050- 0
3.
ck�5 rnccra-
Address:
1f property I #
.Xi o - C
- OCAC --o
4.
Dr.Q.Yl,2 V VuU
Address:
Property ID#:
- A - 00CC - CCCO
- CDS9
5. U
A r Lt Crf us
Address:
'
E
S t'
Property ID#:
- cn- CC010 -
- C 04(1 -
6.
11�� ( tcsn T 5���►-t
Address:
r�
Property ID#:
- occo - ccen
- o2
7.
Address:
Property ID#:
8.
Address:
Property ID#:
9.
Address:
Property ID#:
10.
Address:
Property ID#:
15. Additional comments, if any a tr io-CL
I (we), the undersigned, do hereby respectfully agree to comply
with any conditions required by the Board of Zoning Appeals of the
County of Frederick, Virginia, and authorize the members of the Board of
Zoning Appeals or a representative of the County to go upon the
property for the purpose of making site inspections. I/we hereby
depose and say that all of the above statements and the statements
contained in any exhibits transmitted are true.
Signature of Applica
Signature of Owner:
Date
/,
Dat ;2a
For Office Use Only
BOARD OF ZONING APPEALS PUBLIC HEARING ACTION OF (date)
Approval 12� Denial CHAIRMAN: f 2
ri
��j,�' �+.." ��� y�1,�+� 1 - c► ` � 4iU""",1 11_.b.
^- i7\ \11 at1; iiihNdoma'�h m i .
f �
�!;iii1�1;1111�1�, Ip ..mi �`,Z� 1` "„„w: •'..
1 _ 1
jell 1111�n1 �11Hj1\, \11!1i\
11 •�111111111y�'11 �� 1l1....1 e` �';'�MIl�\1uQ�`` •
1 It
UNIII,!N1c1p
MMOR
� I111N1' —i 11n'11y n4
1 A1,1111 � :1��111111i111\111 Il��y �1�1
p p
.0004 Ja—EQA�..
o m
.e �
05
All�tCE MOM 4
V CERTIFICATE No. >
54-17.3 (a)965
nF 54-17-3 (b)162 co -
LAND 0�:
/ 1N.4PL ES �
/WC C,PE<i0Y
I/ S70°,f5'07Y-
tixo �
h�
ACK n
4S
O
O\N
cs� �
\m
w
/5' 59-a/
A.PC/E C,P/TE,.S'
SLAT OF Tf/E CANO OF 3 2-
d M 's de. B/Q.4Cs l
Gq/N,: BYgMO O/ST.P/lT, leP 01EAO/CK <OU/VTY, !//1.
G.PEPqPEO BY
6AO Z-t/Ot/.4Y Eil/G/NEE,P/NG /INO CO., /rt/C.
Gt///1/Cf1ESTE�O, !//LPG/41/.4
h�
ACK n
4S
O
O\N
cs� �
\m
w
/5' 59-a/
A.PC/E C,P/TE,.S'
SLAT OF Tf/E CANO OF 3 2-
d M 's de. B/Q.4Cs l
Gq/N,: BYgMO O/ST.P/lT, leP 01EAO/CK <OU/VTY, !//1.
G.PEPqPEO BY
6AO Z-t/Ot/.4Y Eil/G/NEE,P/NG /INO CO., /rt/C.
Gt///1/Cf1ESTE�O, !//LPG/41/.4
D/Sl 9(-1b
The accompanying plat represents a survey of the land of James Richard Bragg
and Mary Ellen Bragg by deed dated October 21, 1983 and recorded in the Frederick
County Court Clerk's Office in Deed Book 567 at Page 446.
The aforesaid land lies along the east side of Virginia State Secondary Highway
No. 600, about three -fourths mile east of Gainesboro, in Gainesboro District,
Frederick County, Virginia and is bounded as follows:
Beginning at an iron pin set corner to C. Robert Kidwell land and in the east
R/W line of Va. Route 600; thence with said Va. Route 600 for the 3 following
courses, N46°3611211E - 250.84' to an iron pin set; thence N42026'4911E - 101.72' to
an iron pin set P.C..of a curve; thence with the arc of a curve to the left 106.23'
(Radius = 1450.3 9' - Chord = N42°17'3211E - 106.211) to an iron pin set in said east R/W
line and corner of McCready land; thence with said McCready S70°45'0711E - 219.79, to
a concrete monument found corner to McCready and in a --,-line of Dellinger land; thence
with said Dellinger and following the existing fence for the 6 following courses,
S13°19'31"W - 108.20' to a post; thence S30°10'09"W - 119.22' to a 8" pine; thence
S16022'35"W - 43.81' to a 811.pine; thence S01°1910011E - 38.31' to a post; thence
S05°5211811E - 108.08' to a post; thence S0001712111E - 179.73' to a corner post in
a line of Dellinger and corner to Crites land; thence with said Crites N6V 15'59"W -
286.11' to an iron pin set corner to said Crites and C. Robert Kidwell; thence
with said Kidwell N43027124"W - 273.03' to the beginning.
Containing. . . . . . . 4.2251 Acres
Surveyed. . . . . . . . September 9, 1984
Prepared By
Greenway Engineering and Surveying Co., Inc.
Winchester, Virginia
��ALTN D,c,
o H. UCE
U CERTIFICATE No. Y
54-17-3 (a)965
5417.3 (b)162
LAND ��R�\
COUNTY of FREDERICK
Departments of Planning and Building
703/665-5650
M E M O R A N D U M
TO: John R. Riley, Jr., County Administrator
FROM: Stephen M. Gyurisin, Deputy Planning Director
SUBJECT: Board of Zoning Appeals Information Request
DATE: May 9, 1988
Following is information in response to your questions:
Question 1
Is there anything in the Board of Zoning Appeals' policy regarding time frame for
re -petitioning?
Answer
No. There is no Board of Zoning Appeals' policy on time frame for re -petitioning.
Attached is the Board of Zoning Appeals' policies, local Frederick County Code,
and Virginia State Code. There appears to be no time frame policy or code statute
for re -petitioning.
Since the Board of Zoning Appeals is a quasi-judicial group, not legislative, the
process should be by appeal and not re -petitioning, unless some facts of the
original case changed and requires Board re-evaluation.
Question 2
List the events on the Mary Bragg case from beginning to end.
Answer
Attached for your review are the contents of the Board of Zoning Appeals Case
#018-86 for Mary and James Bragg:
List of BZA Events:
Date
11/14/86
12/16/86
12/17/86
1/ 8/87
Event
Applied for a 30' front yard variance for a garage.
BZA approved a 20' yard variance for a garage.
Watkins' approval letter.
Building permit applied for and approved.
9 Court Square
P.O. Box 601 - Winchester, Virginia - 22601
.a
Page 2
•BZA Information Request
May 9, 1988
1/ 9/87
2/ 3/87
5/19/87
6/16/87
10/20/87
3/ 1/88
3/16/88
3/21/88
4/19/88
4/20/88
Footing inspection.
Slab inspection.
BZA minutes
BZA minutes
BZA minutes
Cockerill violation letter
Gyurisin letter
Revised #018-86 BZA application. Applied for a 48' front
variance.
Revised # 018-86 BZA application denied for 48'.
Gyurisin notification letter.
oIP-J6-/3
O��EALTN of
u . BROCE EM L
CERTIFICATE No. i
54.17-3 (a)965
of 54-17-3 (b)162 c
LAND gVR
� /Llc C,PEAOY
S70 °�5'07"E Z/9 79 '
Z51 14CRES
167
A,pL/E C.P/TE..S'
SLAT OF Tf/E LAND OF
LMMES AP. BR.4GG
GA/NESBO,PO O/ST,P/CT, FPEOEP/CK �OUiI/TY, !/A .
SEPT. /3, /994
P,PEPq,PEO BY
G,PEEN,W,4Y Eit/G/NEE,P/A14; .4100 SU,P!/EY/NG CO., /Ac.
0vly-r6-/y
COUNTY of FREDERICK
Departments of Planning and Building
703/665-5650
June 7, 1988
TO: THE APPLICANT(s) and/or ADJOINING PROPERTY OWNER(s)
RE: Application #018-86 of James & Mary Bragg
FOR: A 48 foot front yard setback variance for a garage, located on Route 600,
off Route 522, in the Gainesboro Magisterial District.
This variance request will be considered by the Frederick County Board of
Zoning Appeals at their meeting of June 21, 1988, at 3:30 p.m., in the Board of
Supervisors' Meeting Room, the Old Frederick County Court House, 9 Court Square,
Winchester, Virginia.
Any interested parties having questions or wishing to speak may attend this
meeting.
Sincerely,
Robert W. Watkins
Director
RWW/dkg
9 Court Square - P.O. Box 601 - Winchester, Virginia - 22601
This is to certify that the attached correspondence was mailed to the following on
June 7, 1988 from the Department of Planning and Development, Frederick County,
Virginia:
BRAuG, JAMES RICHARD L
MARY ELLEN
SILER RT. 60X 337
wINCHESTER, VA.
226J1
WINCHESTER-FREOERICK COUNTY
CONSERVATION CLUB, INC.
C/O bEORGE QUARLES
1435 GRAYSTONE TERRACE
wINCHESTER, VA.
22601
MILLER, STEVEN A.
L PAULETTE DAWN
SLOJMERY STAR RT.30X 102-D
WINCH ESTER, VA.
226ID1
MCCREADY, CHARLES PATRICK
HC-38 BOX 366
WINCHESTER, VA.
226U1
DELLINGER, IRENE
RT. 2 6OX 509
WINCHESTER, VA.
2Z6J1
STATE OF VIRGINIA
COUNTY OF FREDERICK
---jp (r, o. Bax 1+441')
CRITES, UOROTHY M.
HC-38 BOX 8S8
WINCHESTER, VA.
C, jZcber+ Klc.wek(
Yi(66-2ry Star R+. b." a7a
W;wckesl�er VA -22601
SILVERT, MiLTOW J.
& LACY 0. BATEMAN ET ALS
516 BALD'WIN ROAD
RICHMOND, VA.
Robert W. Watkins, Director
Frederick County Dept. of Planning
226J1
23229
a.e_ k. Ga)nl a Notary Public in and for the state and
county aforesaid, do hereby certify that Robert W. Watkins, Director for the
Department of Planning and Development, whose name is signed to the foregoing,
dated J uke 7, f i g �f has personally appeared before me and
acknowledged the same in my state and county foresaid.
Given under my hand this 7-th day of _J uit� 1988.
My commission expires on 1'e2Y-e$,,.6er
NOTARY PUBLIC
COUNTY of FREDERICK
Departments of Planning and Building
703/665-5650
April 20, 1988
Mary and James Bragg
P.O. Box 1441
Winchester, Virginia 22601
RE: Variance Application #018-86 for a 48 Foot Front Yard Setback Variance
Dear Mr. and Mrs. Bragg:
This letter is confirm the action taken by the Frederick County Board of Zoning
Appeals at their meeting of April 19, 1988:
Denial of Variance Application #018-86 of James and Mary Bragg for a 48 foot front
yard setback variance for an 18' X 24' garage. This property is located on Route
600 and is identified as Parcel 41 on Tax Map 29 in the Gainesboro Magisterial
District.
You have the right to appeal the Board of Zoning Appeals' decision to the Circuit
Court, but the appeal must occur within 30 days.
If you have any questions concerning the Board's action or if you have any
questions on how to proceed with the appeal, please do not hesitate to call me.
Sincerely,
Steph.n Gyurisin
Dep y P anning Director
SMG/rsa
9 Court Square - P.O. Box 601 Winchester, Virginia - 22601
COUNTY of FREDERICK
Departments of Planning and Building
703/665-5650
April 5, 1988
TO: THE APPLICANT(s) and/or ADJOINING PROPERTY OWNER(s)
RE: Application #018-86 of James & Mary Bragg
FOR: A 48 foot front yard setback variance for a garage, located on Route 600,
off Route 522, in the Gainesboro Magisterial District.
This variance request will be considered by the Frederick County Board of
Zoning Appeals at their meeting of April 19, 1988, at 3:30 p.m., in the Board of
Supervisors' Meeting Room, the Old Frederick County Court House, 9 Court Square,
Winchester, Virginia.
Any interested parties having questions or wishing to speak may attend this
meeting.
Sincerely,
Robert W. Watkins
Director
RWW/dkg
9 Court Square - P.O. Box 601 - Winchester, Virginia - 22601
This is to certify that the attached correspondence was mailed to the following on
April 5, 1988 from the Department of Planning and Development, Frederick County,
Virginia:
3RAG3, JAMES RICHARD E
MARY ELLEN
SILER RT. BOX 337
WINCHESTER, VA.
22601
WINCHESTER-FREDERICK COUNTY
CONSERVATION CLU3, INC.
C/O GEORGE QUARLES
1435 GRAYSTONE TERRACE
WINCHESTER, VA.
22601
MILLER, STEVEN A.
E PAULETTE DAWN
BLOOMERY STAR RT.BOX 102-D
WINCHESTER, VA.
22601
MCCREADY, CHARLES PATRICK
HC-38 BOX 866
WINCHESTER, VA.
226J1
DELLINGER, IRENE
RT. 2 BOX 509
WINCHESTER, VA.
22601
STATE OF VIRGINIA
COUNTY OF FREDERICK
CRITES, DOROTHY M.
HC-38 BOX 888
WINCHESTER, VA.
2 2 6 J 1
SILVERT, MILTON J.
E LACY 0. BATEMAN ET ALS
516 BALDWIN ROAD
RICHMOND, VA.
23229
Saes q AkaY.1
V. 0. g0X I H'I I
w �nc� e� heir VA 221a0 �
C. RA.?r+ Kilwe-(l
&00"e-1 Star ?,+.) 'E)ox a7a
W � KcIteS+e-Y VA Z 2(90 i
Robert W. Watkins, Director
Frederick County Dept. of Planning
a Notary Public in and for the state and
-T
county aforesaid, do hereby certify that Robert W. Watkins, Director for the
Department of Planning and Development, whose name is signed to the foregoing,
dated aA�IL U.Pe � , has personally appeared before me and
-V
acknowledged the same in my state and county foresaid.
Given under my hand this day of C , 1988.
My commission expires on
i 1
NOTARY PUBLI
OXY
COUNTY of FREDERICK
Departments of Planningn and Building
703/665-5650
April 5, 1988
TO: THE APPLICANT(s) and/or ADJOINING PROPERTY OWNER(s)
RE: Application #018-86 of James & Mary Bragg
FOR: A 48 foot front yard setback variance for a garage, located on Route 600,
off Route 522, in the Gainesboro Magisterial District.
This variance request will be considered by the Frederick County Board of
Zoning Appeals at their meeting of April 19, 1988, at 3:30 p.m., in the Board of
Supervisors' Meeting Room, the Old Frederick County Court House, 9 Court Square,
Winchester, Virginia.
Any interested parties having questions or wishing to speak may attend this
meeting.
Sincerely,
v
Robert,W. Watkins
Director.
RWW/dkg
9 Court Square - P.O. Box 601 - Winchester, Virginia - 22601
COUNTY of FREDERICK
Departments of Planning and Building
703/665-5650
March 16, 1988
Mr. and Mrs. James Bragg
P.O. Box 1441
Winchester, VA 22601
RE: Revised Variance
Dear Jim and Mary:
Please find enclosed the revised application for your garage. Please
sign and return it to our office by March 25, 1988.
If you have any questions, please call. Thank you for resolving this
matter.
Sincerely,
14
Stp e M. Gyurisin
Dep ty Director
SMG/jls
enclosure
9 Court Square - P.O. Box 601 - Winchester, Virginia - 1 22601
COUNTY of FREDERICK
Departments of Planning and Building
703/665-5650
March 1, 1988
Mary and James Bragg
P.O. Box 1441
Winchester, Virginia 22601
Dear Mary and James Bragg:
We believe your garage was not built where the Board of Appeals specified in their
decision of December 16, 1986.
I am sending you an application for a variance to reflect the exact location of
the garage. Please complete this variance application and return it to our
office.
If you have any questions, please do not hesitate to call our office.
Sincerely,
A. Bray Cockerill
ABC/rsa-
Enc: Variance Application
cc:. Stephen Owen,- Assistant County Administrator
Stephen Gyurisin, Planning Deputy Director
- alD 'OC
2
Chairman Adams called for anyone wishing to speak in opposition,
but no one came forward.
Mr. Gyurisin said that the County does not require a survey prior
to construction of a house. He said that County inspectors measure the
front, back, and side yards during inspection, but there is always a
possibility of this type of thing happening without a survey. Mr. Gyurisin
said that a Certificate of Occupancy has already been issued for this
building.
Upon motion made by Mr. Wakeman and seconded by Mr. Garrett,
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals does
hereby unanimously approve Variance Application #003-87 of Ronald
Strosnider for a 1' (one foot) left side yard variance and a 7" (seven
inch) right side yard variance for a single-family residence. This
property is located at 4376 Mystic Court, Lot 73, Section 3, The Village at
Lakeside, in the Shawnee Magisterial District.
OTHER
Chairman Adams brought the Board's attention to a matter
concerning a variance granted to Mr. and Mrs. Bragg in December. Chairman
Adams said that the Bra ggs had requested a 30' variance for a garage on
Route 600 and the Board granted a 20' variance, permitting the garage to be
C' placed 60' from the road. Chairman Adams said that the garage has been
built and it looks like it has been placed 45' from the side of the road.
Chairman Adams asked the staff to check into the matter.
ADJOURNMENT
Upon motion made by Mr. Garrett and seconded by Mr. Wakeman, the
meeting adjourned.
Respectfully submitted,
Ernest W. Adams, Chairman
964"V_ 16.1 1qY7
r - 3 - d
the Frederick County Zoning Ordinance to allow office -type uses in the B-3
(Industrial Transition) category. Mr. Gyurisin said that both of these
avenues are currently being pursued by Mr. Hardison of Battlefield
Parternship.
After considerable discussion of the matter, Mr. Garrett moved to
sustain the administrative ruling and this motion was seconded by Mr.
Wakeman.
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals does
hereby unanimously agree to sustain the administrative decision by the
Frederick County Department of Planning and Development regarding Appeals
Application #005-87 of Douglas R. Toan for the State Farm Claim Office.
This property is located east of Route 11 South, between I-81 and Route 11,
and south of the Route 37 interchange, Battlefield Industrial Park, in the
Magisterial District.
DISCUSSION ON VARIANCE APPROVED FOR JAMES AND MARY BRAGG
Mr. Gyurisin presented information on Variance Case #018-86 of
James and Mary Bragg, located on Route 600, north off of Route 522 North,
in the Gaine„sboro District, regarding a 20' front setback variance for a
garage which was granted by the Board in December of 1986. Mr. Gyurisin
said that he has asked the State to stake the property to be certain where
the right-of-way was located. Mr. Gyurisin felt the Braggs probably
measured from the road rather than the right-of-way, resulting in them
placing the garage closer to the road than what was approved by the Board.
DISCUSSION ON OFFICE USE IN THE B-3 (INDUSTRIAL TRANSITION) ZONING DISTRICT
There was next a discussion regarding uses allowed in the
business zoning districts. The Board also discussed the various zones
existing in the Battlefield Industrial Park. The Board felt a redefinition
of the uses allowed in the B-3 Zoning District was in order.
Upon motion made by Mr. Sempeles and seconded by Mr. Garrett,
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals does
hereby instruct the staff to formulate a resolution to the Planning
Commission suggesting that the uses in the B-3 (Industrial Transition)
Zoning District be reviewed. The vote on this decision was unanimous.
An.TnTTRNMFNT
R tfully submitted,
Dougla Mf../(Swi t, 'Jr., Secretary
Ernest W. Adams, Chairman
3
Board members were in agreement, weather permitting.
---------------------
DISCUSSION OF BRAGG PROPERTY
Mr. Gyurisin said that the staff has notified the Bragg's of the
violation and will be working with them to correct the violation either
through re -application or through court proceedings.
---------------------
ADJOURNMENT
Upon motion made by Mr. Sempeles, seconded by Mr. Garrett, and.
passed unanimously, the meeting adjourned.
Respectfully submitted,
v! �
Douglas Swift, J .', Secretary
Ernest W. Adams, Chairman
e .
MINUTES OF THE MEETING
FREDERICK COUNTY BOARD OF ZONING APPEALS
Held on December 16, 1986 in the Board of Supervisors' Meeting Room, the
Old Frederick County Court House, 9 Court Square, Winchester, Virginia.
PRESENT: Ernest W. Adams, Chairman; Ralph Wakeman; James F. Garrett;
Douglas Swift, Legal Counsel; Stephen M. Gyurisin, Advisory.
ABSENT: J. Patrick Russell; Robert E. Hockman
CALL TO ORDER
Chairman Adams called the meeting to order at 3:25 p.m. The
first order of business was the consideration of the minutes of October 21,
1986. Upon motion made by Mr. Garrett and seconded by Mr. Wakeman, the
minutes of October 21, 1986 were unanimously approved as presented.
CUT-OFF DATE ANNOUNCEMENT
Mr. Swift announced that all applications for variance must be
submitted by 3:00 p.m. on January 23, 1987 in order to be reviewed by the
Board of Zoning Appeals on February 17, 1987.
PUBLIC HEARINGS
Variance Application #018-86 of James and Mary Bragg for a 30 foot front
yard setback variance for an 18' X 24' garage on Route 600 in the
Gainesboro Magisterial District.
Action - Approved
Mr. Swift read the background material and a letter from Mary
Bragg as follows:
November 10, 1986
Gentlemen:
There are many reasons we hope you will grant us a zoning variance other
than what we have listed.
1. We have made a $500.00 (unrefundable) deposit on the building.
2. I would like, to store my car in the winter.
A
- 2 -
d
3. The State Road Department has put a driveway into the area already.
4. We have paid for the culvert, top soil, fertilizer, and straw.
5. There is no other place to put it.
In closing, we welcome your inspection of the site. It is out of the way
and shouldn't bother a soul. Behind, to the right side and in front, there
is nothing but an undeveloped, wooded, hill side.
Thank you very much for your consideration.
Mrs. Mary Bragg
Chairman Adams asked if the garage would be enclosed and have a
door and Mrs. Bragg replied that it would. Mr. Adams was concerned if the
21 foot driveway allowed sufficient room to turn the car around in. Mrs.
Bragg said that they could make do with ten foot less of a variance.
Mr. Gyurisin noted that there is a steep embankment to the rear
of where they intended to place the garage. Mrs. Bragg said that a lot of
water comes off of the bank and she did not want to get too close to the
bank for fear of the water getting into the garage.
Mr. Gyurisin suggested that the Bra ggs use a "T-type" turn-
around, so there would be sufficient room to turn around without backing
out onto the street.
Upon motion made by Mr. Wakeman and seconded by Mr. Garrett,
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals does
hereby unanimously approve Variance Application #018-86 of James.and Mary
Bragg for a 20' front yard setback variance for an 18' X 24' garage. This
property is identified as Parcel 41 on Tax Map 29 and is located on Route
600 in the Gainesboro Magisterial District.
ADJOURNMENT
adjourned.
There being no further business to discuss, the meeting
Respectfully submitted,
Douglas A4. Swif , r. , Secretary
/_� U /. /er,�
Ernest W. Adams, Chairman
COUNTY of FREDERICK'
Departments of Planning and Building
mcn5
703/656-5650
1758
December 17, 1986
Mr. & Mrs. James Bragg
P.O. Box 1441
Winchester, VA 22601
Dear Mr. & Mrs. Bragg:
This letter is to confirm the Board of Zoning Appeals' action at their
meeting of December 16, 1986.
Approval of Variance #018-86 of James and Mary Bragg, for a 20' front yard
(setback) variance for a 18' x 24' garage on Route 600, in the.Gainesboro
Magisterial District.
If you have any questions regarding this variance approval, please do not
hesitate to contact this office.
Sincerely,
Robert W. Watkins
Planning Director
RWW/dll
V n Rnv A01 _ WinrhPgtPr. Virginia - 22601
APPLICATION FOR VARIANCE
IN THE
COUNTY OF FREDERICK, VIRGINIA
Variance Application No. C�?I8-Submittal Deadline is
Application ate %-f For the Meeting of
Fee Paid
1,,1. The applicant is the (owner) (other) (check one)
'�. NAME: �1 E OCCUPANT: (If o he than applicant)
ADDRESS:, NAME:
ti ZIpU 1 ADDRESS:
TELEPHONE: TELEPHONE:
3. Te pryo,erty is o ated at ( lea�spe give exact directions),
v✓4 . The property has a frontage of 45 feet and a depth of 310
feet and consists of acres. acres. (Please be exact)
See. 0-4pc.heC4
Al. The propert is owned by JRIYL'S* MArq &-Aqq as evidenced by
deed from ; ��eora. ��;s recor ed i deed book no. 567
on page registry of the County of Ft";'-k,
✓6. This property i esi ated as parcel no.� on tax map no.
in the,/ v o- Magisterial District.
c✓7. Property Identification Number:2?"0,0a_q)--0d10o- 0600 QO41-b
8. The existing zoning of the property is: -� fC0CP'r�C.
9. The existing use of the property is:
10. The adjoining properties zoning is:
11. The adjoining properties land use is: 1�i1�T1/
'\12- Describe the variance sought in terms of distance and type. (For
example - A 3' rear yard variance for an attached two car garage.)
13. List specific reasons) why the variance is being sought in terms
of:
Iarrowness, shallowness, size, o shape of a specific
piece or
- exceptional topographic conditions or other extraordinary
situation or condition of suc piece of property, or
,the use or development of property immediately adjacent there —to
Page Two
Vari�nr-e
Y
018 -.2q
14.
The following are all of the individuals, firms, or corporations
owning property adjacent to both sides and rear and in front of
(across street from) the property for which the variance is being
sought. (Use additional pages if necessary). These people will be
notified by mail of this application: (Please list complete 21-digit number)
�v !� UJ. d�icanQ¢-c -
NAME llL�S �1�n�.2TDnt0 niinn� Igo It� r,�iiait�i: iici
FR.e.8enc-k Co ConSeR,J
CI b
-
erty I #
�G aG -(�} 6 G Q D D- G oo-D O,fo-d
2. ` 1
`---
V III
d ess:
.�: 72- N/� YG. �t L4 a
Propert I
0 6) - d Q 6-c--0- d 0- 0 D 9-44 - O
3. % A-r I�
McCrea
ACe 3 �'- ��''4 Ctiti���wG� y�- GQ C
Property
.7, a&0 - D a-0 = Q 0-"—&-0 -6 - O oizo- O
4.
�rttA,�e11 e�
A r ss o o��Q Z/ 1 ,
Proppert L,6
Od —D -Qa6d ac-39_6
5.
Ar�ii�
1�r A-c
Address:
�' � CS��b�g' Z1/• �.�•Z�o J
Property In
o�01•00 --C&&o -' UGera O o �C --6
6 . ��''Lc�,.�
Address-
pN�G�.r✓ ��Q,�G �l-,Z, -2 �
Propertyte--
I #:
a11a eo- 0 a0-66a0- 00O
7.
Address:
Property ID#:
8.
Address:
Property ID#:
9.
Address:
Property ID#:
10.
Address:
Property ID#:
L/ 15. Additional comments, if any 5e2 Akl-Jl7ej
I (we), the undersigned, do hereby respectfully agree to comply
with any conditions required by the Board of Zoning Appeals of the
County of Frederick, Virginia, and authorize the members of the Board of
Zoning Appeals or a representative of the County to go upon the
property for the purpose of making site inspections. I/we hereby
depose and say that all of the above statements and the statements
contained in any exhibits transmitted are true.
Signature of Applicant:
(/ Signature of Owner:
�o
Date ,3 I /Ap
Date
2YJJ/-96
For Office Use Only /
BOA D OF ZONING APPEALS PUBLIC HEARING ACTION OF (date)
Approval Denial CHAIRMAN:
A G E N D A
FREDERICK COUNTY BOARD OF ZONING APPEALS
December 16, 1986
3:25 p.m. CALL TO ORDER
(1) Minutes of the Meeting -- October 21, 1986
CUT-OFF DATE ANNOUNCEMENT
(2) All applications for variance must be submitted by 3:00 p.m.
on January 23, 1987 in order to be reviewed by the Board of
Zoning Appeals on February 17, 1987.
3:30 p.m.
PUBLIC HEARINGS
(3) Variance Application #018-86 of James and Mary Bragg for a
30' front yard setback variance for a 18' x 24' garage on
Route 600 in the Gainesboro Magisterial District.
(4) Other
---------------------------------------------------------------
COUNTY of FREDERICK
IDepartments of Planning and Building
703/665-5650
December 2, 1986
TO THE APPLICANT (a) and/or ADJOINING PROPERTY OWNER (a)
The Application Of: James & Mary Bragg, Route 600
Variance Application For: 30' front yard (setback) variance for a 18' x 24'
garage
This variance request will be considered by the Frederick County Board of
Zoning Appeals at their meeting of December 16, 1986, at 3:30 p.m., in the
Board of Supervisors' Meeting Room, in the Old Court House, Winchester,
Virginia.
Any interested parties having questions or wishing to speak may attend this
meeting.
Sincerely,
Robert W. Watkins
Director
RWW/dll
9 Court Square - P.O. Box 601
Winchester, Virginia -
22601
This is to ce- :fy that the attached correspondence was mailed to the
following on .1cember 2, 1986, from the Department of Planning and
Development, Frederick County Virginia:
Winchester/Frederick County Conservation Club
P . era yo'D , et " Q -� o a . ,
Winchester, VA 22601
C. Robert Kidwell Milton J. Silvent
Bloomery Star Route, Box 272 516 Baldwin Road
Winchester, Virginia 22601 Richmond, VA 23229
Charles McCready James & Mary Bragg
HC 38, Box 866 P.O. Box 1441
Winchester, Virginia 22601 Winchester, VA 22601
Irene Dellinger
Route 2, Box 509
Winchester, Virginia 22601
Arlie Crites
HC 38, Box 888
Winchester, Virginia 22601
Robert W. Watkins, Director
Frederick County Department of
Planning and Development
STATE OF VIRGINIA
COUNTY OF FREDERICK
I, DL6ra- d •-aynr,an , a Notary Public in and for the state and county
aforesaid, do hereby certify that Robert W. Watkins, Director of the
Department of Planning and Development, whose name is signed to the
foregoing, dated has personally appeared before me and
acknowledged the same in my state and county foresaid.
Given under my hand this a^d day of bte'-IMbEr- , 1986.
My commission expires on
NOTARY PUBLIC
DEED OF TRUST
JAMES RICHARD BRAGG
and
MARY ELLEN BRAGG
TO
THOMAS J. CHASLER, TRUST
THOMAS J. CHASLER
ATTORNEY AT LAW
WINCHESTER, VIRGINIA
er625PG484
CERTIFICATE OF SATISFACTION
OFFICE OF THE CLERK OF CIRCUIT COURT, Frederick County, VA
DATE OF DEED OF TRUST October 21, 1983
DEED BOOK 567 PAGE 448
FACE AMOUNT SECURED S 32, 000, 00
NAME OF GRANTOR(S) of trust: James Richard Bragg and
ary�l7en Bragg, Fils wife
NAME OFTRUSTEE(S) _ Thomas J. Chasler
p SCRIPTION QF PROP- Ty 4 4 acres situated alongthe eastern side of. highway
��6U about i/4 mi es east o aines oro, in aines oro MagisterialDist.
Frederick
MAKER(S) OF NOTE James Richard Bragg and
Mary Ellen Bragg
DATE OF NOTE October 21, 1983 AMOUNT OF NOTE $32. 000. 00
/We, the holder(s) of the above mentioned Note, which is secured by the above referenced Deed of
Trust and hereby produced before the Clerk of the Court, do hereby certify that the same has been paid in
full and the lien therein created and retained is hereby released.
GIVEN under my/our hand(s) this 25th da of August
19-8 6 .
Y
Farmears & Merchants National Bank
Notehol r(s)
�
SstZoif° '' Virginia Vice President
,
: \� County of: Frederick to -wit:
yea t:
SUBSCRIBED AND SWORN to before me this 25th day
r,
Iof_:� 19 86 by James L. Dix
°•.uajM2 Jresi ent of Farmers ere ants ationa an
(Noteholder).
Notary Public I was gte
i ioned a Notary Public
My Commission expire�"Iarch 12,_ 1990 �F!as
J hnson
I certify that the Note(s) mentioned in the foregoing Certific aving been paid was/were
produced before the Clerk.
ATTEST:
t,:;INIA f RE0;:P,1l;K rOUhlti St.:T. oay of _�.._
This 'rsh um:1�t nt v�riting w"-''; Pr^du':yd to me on U"j --•- - mPnt tt�ereYo annexed l s admitted
with rrlriifiCat^ of acknowladg
' �t
D/IF -06 3s
�V
AUG 1986
i9D
($32,000.00)
0
b 3� ?" &
Winchester, Virginia
1983
FOR VALUE RECEIVED, the undersigned promise to pay
to the order of FARMERS AND MERCIiANTS NATIONAL BANK of
Winchester, Virginia, at wherever holder may designate, t:ze
principal sum of Thirty -Two Thousand and no/100--($32,000.00)
with interest thereon at the rate of Twelve and One -Half per
centum (12 1/20) per annum, payable in consecutive monthly
installments of Three Hundred Forty -Eight and 91/100--
($348.91), which include principal and interest, commencing
on the, �� /.y -day of 1 ,%_,. , 19 and continuing on the
same day of each succeeding month thereafter for a total of
eleven (11) months with the entire amount of principal and any
accrued interest due and payable on the twelfth (12th) month
from date.
If any of said installments be not paid within
fifteen (15) days from the date it becomes due, the undersigned
agree to pay a late charge of four per cent (4%) of the amount
so unpaid. If default be made in the payment of any installment
of this obligation, the entire principal sum and accrued
interest shall at the option of the holder hereof and without
further notice, become immediately due and payable. Failure
to exercise this option shall not constitute a waiver of the
right to exercise the same in the event of any subsequent
default.
The makers and endorsers of this Bond do hereby
waive presentment, notice of dishonor, protest, the benefit
of their homestead exemption as to this debt and agree to pay
all costs and expense of collecting same, including a reasonable
sum as attorney's fees.
The undersigned reserve the right to anticipate and
pa_v the whole of said debt without penalty.
This Bond is secured by a Deed of Trust of even date
herewith executed by the undersigned to Thomas J. Chasler,
Trustee, on property situate in Frederick County, Virginia,
and recorded in the Clerk's Office of the Circuit Court of
Frederick County, Virginia.
NOTICE - THE DEBT SECURED HEREBY IS SUBJECT TO CALL
IN FULL OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF
SALE OR CONVEYANCE OF THE PROPERTY SECURED HEREBY.
THOMAS J. CHASLER
A rTORNEY AT LAW
AINCIIESTER. VIRGINIA
��
THIS LOAN IS PAYABLE IN FULL AT THE END OF ONE (1)
YEAR. AT MATURITY, YOU MUST REPAY THE., ENTIRE PRTNCTPAT, BALANCE
OF THE LOAN AND UNPAID INTEREST THEN DUE. THE BANK IS UNDER NO
OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. YOU WILL THERE-
FORE BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS YOU MAY
[.OWN OR YOU WILL HAVE TO FIND A LENDER WILLING TO LEND YOU THE
MONEY AT PREVAILING MARKET RATES, WHICH MAY BE CONSIDERABLY
HIGHER THAN THE INTEREST RATE OF THIS LOAN.
`✓ AUG 1986 S RICHAR ' B GG
{� `S
PAID
0.
t r? C (SEAL)
L C� oy,
LLYN BRAGG
0/0'P-eC-37
THOMAS J. CHASLER
ATTORNEY AT LAW
WINCHESTER. VIRGINIA
aK567FIG4��8
THIS DEED OF TRUST, made and dated this2/,;day of
C 1Y', , 1983, by and between JAMES RICHARD BRAGG and
MARY ELLEN BRAGG, his wife, parties of the first part, and
THOMAS J. CHASLER, of Winchester, Virginia, Trustee.
WITNESSETH: That for and in consideration of
One Dollar ($1.00) cash in hand paid by the said Trustee to the
parties of the first part, on or before the delivery of this
Deed of Trust, the receipt of which is hereby acknowledged,
the parties of the first part do hereby grant and convey, with
general warranty of title, unto said Trustee, and his successors
forever, the following real estate, to -wit:
All of that certain lot or parcel of land,
containing Four and one-fourth acres
(4 1/4 A.), more or less, together with
all rights, rights of way, privileges,
improvements and appurtenances thereto
belonging, lying and being situate along
the Eastern side of Virginia State Secondary
Highway No. 600, about three -fourths mile
East of Gainesboro, in Gainesboro Magisterial
District, Frederick County, Virginia.
This is the same real estate conveyed to the
parties of the first part herein, by Deed
recorded immediately preceding this Deed of
Trust.
This conveyance is made subject to all easements,
rights of way and restrictions of record affecting the
subject property.
IN TRUST HOWEVER, to secure payment to the holder
of a certain Bond of even date herewith payable one (1) year
from date, in the principal amount of Thirty -Two Thousand and
no/100--($32,000.00), together with interest thereon at the
rate of Twelve and One-half per centum (12 1/20) per annum,
payable in consecutive monthly installments of Three Hundred
Forty -Eight and 91/100--($348.91), which include principal
and interest, made by the parties of the first part and payable
to FARMERS AND MERCHANTS NATIONAL BANK of Winchester, Virginia,
commencing on the,,: 1- day of -�, .,;�: _ , 1983, and
Bn567PG9
continuing on the same day of each succeeding month thereafter
for a total of eleven (11) months with the entire amount of
principal and any accrued interest due and payable on the
twelfth (12.th) month from date.
permitted.
Renewals and extensions of the foregoing debt are
AND FURTHER IN TRUST, to secure the payment of
any money with interest thereon, advanced by the holder of the
hereinabove described obligation to the parties of the first
part or their successors in title at any time before the release
of this Deed of Trust for any purpose to the extent that the
amount advanced at any one time when added to the balance due on
the original indebtedness and any prior advance, shall not exceed
the amount originally secured by this Deed of Trust.
This Deed of Trust is executed and is to be construed
in accordance with all the provisions of Sections 55-59 and
55-60 of the Code of Virginia, and all amendments thereto
except as otherwise provided herein.
Advertisement required; Publication of notice of
sale once a week for two (2) successive weeks in any newspaper
of general circulation ox.published where the property is
located. Said sale may be held not less than eight (8) days
following the first advertisement nor more than thirty (30) days
following the last advertisement. Commission of two and one-half
per cent (2 1/2%) of indebtedness paid before sale; right of
ahticipation reserved; exemptions waived; subject to all upon
default; and insurance required against fire and other calamity
in the amount of the original indebtedness secured hereby.
Late Charge; In the event of a late payment, the
holder of the Bond may collect a "late charge" equivalent to
four per cent (4%) of the amount of any payment which is more
than fifteen (15) days late.
-2-
BK567PGk50
Prepayment. penalty: The parties of the first part
herein reserve the right to pay the entire amount due without
penalty.
The holder of the indebtedness secured by the Peed
of Trust is hereby granted the power to appoint a substitute
Trustee pursuant to Section 26-49 of the Code of Virginia in
the event of resignation, death, incapacity or disabil.it17 of
a Trustee; such substitute Trustee shall have the same powers
as if originally named herein.
Conveyance: If all or any part of the property
or any interest therein is sold or transferred by the. parties
of the.first part by deed, installment contract of sale or
other, instrument, without the prior written consent of the holder
of the Bond, excluding (a) the creation of a lien or encumbrance
subordinate of this Deed of Trust, or. (b) the transfer by
devise, descent, or by operation of law upon the death of a
joint tenant, the holder of the Bond may, at the holder's
option, declare all the sums secured by this Deed of Trust
to be irmnediately due and payable. The holder of the Bond
shall. have waived such option to accelerate if, prior to the
sale or transfer, the holder of the Bond and the person to
whom the property is to he sold or transferred have reached an
agreement in writing that the credit of such person is
satisfactory to the holder of the Bond and that the interst
payable on the sum secured by the Deed, of Trust shall be at
such rate as the holder of the Bond shall request. In the
event that the holder of the Bond exercises such option to
accelerate, the holder shall mail the parties of the first
part notice of acceleration by certified mail addressed to the
parties of the first part at the property address or such other
address as the parties of the first part may designate by
-3-
n/S JP6 �c
an567PGIt51
written notice to the holder of. the Bond. Such notice of
acceleration shall provide a period of not le-ss_ than thirty
(30) days from the date the notice is mailed within which the
parties of the first part shall pay the sum declared d>>e. If
the parties of the first part fail to pay such sums prior to
the expiration of stich period, the holder may, without further
notice or demand on the parties of the first part declare the
trust to be in default and direct the Trustee to take such
action as hereinabove allowed.
NOTICE -- THE DE73T SECURED HEREBY TS SUBJECT TO CALL
IN FULL OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF
SALE OR CONVEYANCE OF THE PROPERTY SECURED HEREBY,
THIS LOAN IS PAYABLE IN FULL AT THE END OF ONE (1
YEAR. AT MATURITY, YOU MUST REPAY THE ENTIRE PRINCIPAL BALANCE
OF THE LOAN AND UNPAID INTEREST THEN DUE. THE BANK IS UNDER NO
OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. YOU WILL THERE—
FORE BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS THAT YOU
MAY OWN, OR YOU WILL HAVE TO FIND A LENDER WILLING TO LEND
YOU THE MONEY AT PREVAILING MARKET RATES, WHICH MAY BE
CONSIDERABLY HIGHER THAN THE INTEREST RATE OF THIS LOAN.
WITNESS the following signatures and seals:
SEAT,)
SEAL)
STATE OF VIRGINIA — �� X�c�p /
r
OF-, /rQC 2c NYC', . to —wit:
I► }�"�c c a1 C ,F,�(a .� a Notary Public,
in and for. the State and aforesaid, do hereby certify
that James Richard Bragg and Mao Ellen Bragg, his wife, whose
names are signed to the foregoing Deed of Trust, bearing date
n
the ,, J,{ day of Cj c- ,�,��, , 1983, have this day personally
appeared before me and acknowledged the same.
Given under my hand this =L, day of ((Dj_� 1983.
My Commission Expires:
NOTARY PUBLIC
r1140II1IA f Pr0i_RK'K (,`OUrgjy. t;OT.
This Instrument of wi1;1nF wa ;xcxSikw.1 to rrlo cur the ,� � (�Iy of �! �✓✓
at (I arrd w1Ur a:rtifiwto W to record. kiwacw! ecl,,ment th0ruto etrfmd w.m tida&ta
CLERK'S OFFICE
(O — d f 19 ``
DATE OF DEED
cas 3 a
CIRCUIT COURT, FREDERICK
COUNT(, VA.
�`,.-....1 �./.•`.....
;, `�;, Gl ...............................
......��..
RECEIVED OF ......... ........ �J
-rti, -.... r �.�..... X
.. ...............
61015
C
m
W
FOR RECORDATION OF THE FOLLONh NG DEED
_ ACCOUNT
039
I
AMOUNT
G �
U
h
(��'
STATE TAX
U
Z
J
FROM �� (^' l/�'.213
TO
COUNTY TAX
`G:
DEED
_
5
GRANTEE
ztz
TRANSFER
V
No. I
ADDRESS
301 RECORDING
t V
Z
W
r
U
OF-Sr.RIPTION
K
518
PLATS
3
Il.
L AG
GEORGE B. WHITACRE
038STATE TAX
3
U
O
(�6% VALUE OF INTEREST
$ �,G / SOLD 58-54.1 $
§ 58-54.1
_
220 LOCAL TAX
58_54 1
CLERK
CONSIDERATION
223 LOCAL TAX
-
58-54.1
DEPUTY CI
KIND Oi, ��
TO L
� �
P.M. CONVEYANCE
Old pi'z- I � �
FREDERICK COUNTY BOARD OF ZONING APPEALS
POLICIES AND PROCEDURES
Contents: Page
List of BZA Members ...................................... 1
_Adopted BZA Policies ..................................... 2
Adopted BZA Application Form ............................. 6
Frederick County Zoning Ordinance, Article XX, Board of
Zoning Appeals...........................................12
Code of Virginia, Title 15.1 - 494.......................16
Adopted September 24, 1982
MINUTES OF THE MEETING
OF THE
FREDERICK COUNTY BOARD OF ZONING APPEALS WORKSESSION
Held in the Board of Supervisors' Meeting Room on
September 24, 1982, at 3:14 p.m.
PRESENT: Margaret Starliper, Chairman; Ernest Adams, Vice -Chairman;
Ralph Wakeman; Robert Hockman; Douglas Swift; and
H. C. Christianson.
CALL TO ORDER
The Chairman called the meeting to order.
Discussion of Variance Policies
The Board reviewed policies and procedures adopted from
1/9/73 to 4/20/82 and updated and reviewed them as necessary.
1. MEETING DATE AND TIME
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
shall meet the third Tuesday of every other month, beginning with
the month of February, and these meetings shall begin at 3:25 p.m.`
2. PROCEDURES FOR SUBMITTAL OF APPLICATION
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
does hereby require that all variance applications contain:
A. One (1) copy of the application.
B. One (1) copy of a Plot Plan suitable to the Zoning
Administrator showing:
a. Existing structures. .
b. Measurements from existing structures to all property
lines.
C. Measurements of any additions for which a variance is
requested.
d. Measurements of any additions for which -a variance is
requested to all property lines.
C. One (1) copy of Deed to the land.
D. Every application for variance shall be accompanied by a fee in
the amount of forty-five dollars ($45.00) to cover the cost of
-2-
0
L
advertising, a sign, and other expenses connected with the
processing of application.
E. Upon receipt of notification of the Board of Zoning Appeals
meeting time, the applicant shall post the sign, provided with
the application, on the property for which the variance is
sought and maintain it so as to be legible and visible from the
road or right of way.
F. The title of the representative for a variance of an
organization, church, etc., shall be shown on the application.
3. VARIANCE REVIEW
BE IT RESOLVED, That the Board of Zoning Appeals of Frederick
County shall review each and every application on its own merits
individually.
4. PROPERTY INSPECTION
.r
BE IT RESOLVED, That the Board of Zoning Appeals of Frederick
County does hereby move that a personal inspection of each property
on which a variance is requested shall be made prior to each
meeting of the Board of Zoning Appeals; and
BE IT RESOLVED, That this inspection will be made by the Zoning
Administrator and the Board member whose district the property is
located in; and
BE IT RESOLVED, That any other member of the Board may be present
for the inspection.
5. ADJOINING PROPERTY OWNER NOTIFICATION
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
does hereby move to send certified mail to all adjacent property
owners.
6. REPRESENTATION
BE IT RESOLVED, That the Board of Zoning Appeals of Frederick
County does hereby adopt the following addition to the Variance
Policies:
A. The applicant or a representative applying for a variance must
be present at the Board of Zoning Appeals Meeting for which the
variance is requested. If the applicant or representative is
not present, the variance application will then be tabled until
the next regular meeting.
-3-
7. RESOLUTION TO LIMIT DEBATE TIME
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
?' does hereby establish that:
A. Representatives of both sides of an issue considered at a
public hearing will be allowed a maximum time of ten (10)
minutes each for their presentations and each side will be
allowed a maximum time of five (5) minutes each for rebutting
the opposing side. Discussion in excess of this time will be
allowed only upon a motion duly made and passed by the Board of
Zoning Appeals. The Board will receive evidence, exhibits,
etc. in advance of the public hearing should an individual
desire to present same in order to expedite the public
hearing.
8. ERASURE OF TAPES
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
does hereby require that the tapes used to record the meetings
be stored for future reference, if needed, for a period of one year
unless the Board of Zoning Appeals members or secretary request
that tapes be held for a longer period of time.
9. TIE VOTE
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
does hereby consider any tie vote to be a denial.
10. CUT-OFF DATE
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
will not hear applications submitted after the announced deadline
date or cut-off date, unless approved by the Zoning Administrator
or Chairman of the Board of Zoning Appeals.
11. STAFF RECOMMENDATIONS
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
does hereby request that the staff make comments in the agenda.
12.. FEES
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
does hereby approve an increase in the variance application fee to
$45.00.
13. PROOF OF OWNERSHIP OR PURCHASE
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
requires proof of purchase or proof of ownership by the' applicant
of the property for which the variance is being requested.
-4-
14. SPECIAL MEETINGS FOR PENDING APPLICATIONS
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
f will not alter its schedule of meeting dates for individual variance
applications, unless for reasons of public health, safety, and
welfare. In the event that a full quorum of the Board of Zoning
Appeals is lacking, the Chairperson may call a special meeting to
hear pending variance applications.
15. EVIDENCE, EXHIBITS, ETC.
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals
requires that evidence, exhibits, etc., be received in advance of the
public hearing, should individuals desire to present this information
in order to expidite the public hearing.
The Board next reviewed the application form and supplements
and made a few minor changes to the format.
Mr. Adams next moved to adopt the 'policies and the new
application form with the attachments.
Christianson.
This motion was seconded by Mr.
BE IT RESOLVED, That the Frederick County Board of Zoning Appeals does
'hereby adopt the policies, as listed in these minutes, and the new
application form with the attachments, as follows: (See Attachments)
Adjournment
The preceding resolution was passed by the following vote:
YES: Ms. Starliper and Messrs. Adams, Hockman,
Christianson.
NO: Mr. Wakeman
There being no further business to come before the Board, the
vote was carried unanimously to adjourn.
Respectfully submitted,
Douglas V. Sw'ft, e retary
as ga t tar iper, airperson
-5-
e
21-21-1
ARTICLE XXI
BOARD OF ZONING APPEALS
21-1 GENERALLY
21-1-1 A board consisting of five members shall be appointed by the
circuit court of Frederick County. Appointments for vacancies
occurring otherwise than by expiration.of term shall in all cases
be for the unexpired term.
21-1-2 The term of office shall be for five years, except that of the
first five members appointed, one shall serve for five years, one
for four years, one for two years, and one for one year. One of
the five appointed members may be an active member of the Planning
Commission.
21-1-3 Members may be removed for cause by the appointing authority upon
written charges and after public hearing.
21-1-4 Any member of the Board shall be disqualified to act upon a matter
before the Board with respect to property in which the member has
an interest.
21-1-5 No variance shall be granted for any proposed use, development, or
activity in the Floodway District that will cause any increase in
flood levels during the one hundred year flood.
21-1-5.1 A variance shall only be issued after the Board has determined
that the granting of such will not result in (a) unacceptable or
•prohibited increases in flood heights, (b) additional threats to
public safety, (c) extra -ordinary public expense, (d) create
nuisances, (e) cause fraud or victimization of the public, or (f)
conflict with local laws or ordinances.
21-1-6 In authorizing a variance, the Board may impose such conditions
regarding the location, character and other features of the
proposed structure for use as it may deem necessary in the public
interest, and may require a guarantee or bond to insure that the
conditions imposed are being and will continue to be complied
with.
21-2 POWERS AND DUTIES
Boards of Zoning Appeals shall have the following powers and
duties:
21-2-1 To hear and decide appeals from any order, requirement, decision
or determination made by an administrative officer in the
' administration or enforcement of this article or of any ordinance
adopted pursuant thereto.
21-21-2
21-2-2 To authorize upon appeal in specific cases such variance from the
terms of this chapter as will not be contrary to the public
rty' interest, when owing to special conditions a literal enforcement
of the provisions will result in unnecessary hardships; provided
that the spirit of this chapter shall be observed and substantial
justice done, as follows: When a property owner can show that his
property was acquired in good faith and where by reason of the
exceptional narrowness, shallowness, size or shape of a specific
piece of property at the time of the effective date of this
chapter, or where by reason of exceptional topographic conditions
or other extraordinary situation or condition of such piece of
property, or of the use or development of property immediately
adjacent thereto, the strict application of the terms of this
chapter would effectively prohibit or unr9asonably restrict the
use of the property or where the Board is satisfied upon the
evidence heard by it, that the granting of such variance will
alleviate a clearly demonstrable hardship approaching
confiscation, as distinquished from a special privilege or
convenience sought by the applicant, provided that all variances
shall be in harmony with the intended spirit and purpose of this
chapter.
21-2-3 No such variance shall be authorized by the Board unless it finds:
That the strict application of this chapter would produce undue
hardship; that such hardship is not shared generally by other
properties in the same zoning district and the same vicinity; and
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. No
such variance shall be authorized except after notice and hearing
as required by section 15.1-431 of the Code of Virginia, as
amended.
21-2-4 No variance shall be authorized unless the Board finds that the
condition or situation of the property concerned or the intended
use of the property is not of so general or recurring nature as to
make reasonably practicable the formulation of a general
regulation to be adopted as an amendement to this chapter.
21-2-5 In authorizing a variance, the Board may impose such conditions
regarding the location, character and other features of the
proposed structure for use as it may deem necessary in the public
interest, and may require a guarantee or bond to insure that the
conditions imposed are being and will continue to be complied
with.
21-3 RULES AND REGULATIONS
21-3-1 The Board of Zoning Appeals shall adopt such rules and regulations
as it may consider necessary.
21-3-2 The meeting of the Board shall be held at the call of its chairman
or at such time as a quorum of the Board may determine.
21-21-3
21-3-3 The chairman, or in his absence the acting chairman, may
administer oaths and compel the attendance of witnesses.
21-3-4 The Board shall keep minutes of its proceedings, showing the vote
of each member upon each question, or if absent of failing to
vote, indicating such fact. It shall keep records of its
examinations and other official actions, all of which shall be
immediately filed in the office of the Board and shall be a public
record.
21-3-5 All meetings of the Board shall be open to the public.
21-3-6 A quorum shall be at least three members.
21-3-7 A favorable vote of three members of the (Board shall be necessary
to reverse any order, requirement, decision, or determination of
any administrative officer or to decide in favor of the applicant
on any matter upon which the Board is required to pass.
21-4 APPEAL TO THE BOARD OF ZONING APPEALS --CONDITIONS
An appeal to the Board may be taken by any person aggrieved or by
any officer, department, board or bureau of the county affected by
any decision of the zoning administrator. Such appeal shall be
taken within thirty days after the decision appealed from by
filing with the zoning administrator, and with the Board, a notice
of appeal specifying the ground thereof. The zoning administrator
shall forthwith transmit to the Board all the papers constituting
the record upon which the action appealed was taken. An appeal
shall stay all proceedings in furtherance of the action appealed
from unless the zoning administrator certifies to the Board that
by reason of facts stated in the certificate a stay would in his
opinion cause imminent peril to life or property, in which case
proceedings shall not be stayed otherwise than by a restraining
order granted by the Board or by a court of record, on application
and on notice to the zoning administrator and for good cause
shown.
21-4-1 APPEAL PROCEDURE
21-4-1.1 Appeals shall be mailed to the Board of Zoning Appeals in care of
the zoning administrator, and a copy of the appeal mailed to the
secretary of the Planning Commission. A third copy should be
mailed to the individual, officer, department, or agency
concerned, if any.
21-4-1.2 Appeals requiring an advertised public hearing shall be
accompanied by.a nonrefundable fee of forty-five dollars.
21-4-2 PUBLIC HEARING
The Board shall fix a reasonable time for the hearing of an
application or appeal, give public notice thereof as well as due
r t
21-21-4
notice to the parties in interest and decide the same within sixty
days. In exercising its powers the Board may reverse or affirm,
wholly or partly, or may modify the order, requirement, decision
or determination appealed from. The concurring vote of three
members shall be necessary to reverse any order, requirement,
decision or determination of an administrative officer or to
decide in favor of the applicant on any matter upon which it is
required to pass under this chapter or to effect any variance from
this chapter. The Board shall keep minutes of its proceedings and
other official action which shall be filed in the office of the
Board and shall be public records. The chairman of the board or
in his absence, the acting chairman may administer oaths and
compel the attendance of witnesses.
21-5 DECISION OF BOARD OF ZONING APPEALS
21-5-1 Any person or persons jointly or severally aggrieved by a
decision of the Board of Zoning Appeals, or any taxpayer or any
officer, department, board, or bureau of the county may present to
the circuit court of the county a petition specifying the grounds
on which aggrieved within thirty days after the filing of the
decision in the office of the Board.
21-5-2 Upon the presentation of such petition, the court shall allow a
writ of certiorari to review the decision of the Board of Zoning
Appeals and shall prescribe therein the time within which a return
thereto must be made and served upon the relator's attorney, which
shall not be less than ten days and may be extended by the court.
The allowance of the writ shall not stay proceedings upon the
decision appealed from, but the court may, on application, on
notice to the Board and on due cause shown, grant a restraining
order.
21-5-3 The Board of Zoning Appeals shall not be required to return the
original papers acted upon by it, but it shall be sufficient to
return certified or sworn copies thereof or of such portions
thereof as may be called for by such writ. The return shall
concisely set forth such other facts as may be pertinent and
material to show the grounds of the decision appealed from and
shall be verified.
21-5-4 If, upon the hearing, it shall appear to the court that testimony
is necessary for the proper disposition of the matter, it may take
evidence or appoint a commissioner to take such evidence as it may
direct and report the same to the court with his findings of fact
and conclusions of law, which shall constitute a part of the
proceedings upon which the determination of the court shall be
made. The court may reverse or affirm, wholly or partly, or may
modify the decision brought up for review.
21-5-5 Costs shall not be allowed against the Board, unless it shall
appear to the court that it acted in bad faith or with malice in
making the decision appealed from.
-y
§ 15.1-493
ed unless the governing
ment to the local commis -
ion to report ninety days
proposed amendment or
�r such shorter period as
eemed approval.
!e onamendment thereof,
•ing thereon, pursuant to
the governing body may
ante or proposed amend -
to a more intensive use
�e without an additional
-)uch ,ordinances shall be
ed an urban county form
-722 et seq.) of this title
evations, and other such
is for amendments to the
first, nineteen hundred
-ity of prior acts shah not
e, give notice or conduct
tch act or by this chapter,
t ning body prior to such
oi( ineteen hundred
-ing the county executive
clared invalid by reason
!ction in said county for
sions of this section for
ith. Nothing herein con-
Aion pending. on March
-822, 15-846; Code 1950
. 652; 1970, c. 216; 1972,
Aic hearing" meant only that
t and citizens must be apprised
flanges to be acted upon so they
to state their views. It did not
e notice contain an accurate
recise action which the county
e upon the subjects mentioned
Baring. Ciaffone v. Community
195 Va. 41, 77 S.E.2d 817
accompanying notice desig-
rea of land different from map
t of amended ordinance did not
rending ordinance. Ciaffone v.
pping Corp., 195 Va. 41, 77
i3), decided under repealed
('own of Vienna Council
966, 244 S.E.2d 542 (1978).
.A
§ 15.1-494
COUNTIES, CITIES AND TOWNS § 15.1-495
§ 15.1-494. Boards of zoning appeals to be created; membership, orga-
nization, etc. — In and for any county or municipality which has enacted or
enacts a zoning ordinance pursuant to this chapter or prior enabling laws,
there shall be created a board of zoning appeals, which shall consist of no more
than seven and no less than five residents of the county or municipality but
shall always be an odd number, appointed by the circuit court of the county or
city. Their terms of office shall be for five years each except that original
appointments shall be made for such terms that the term of one member shall
expire each year. The secretary of the board shall notify the court at least thirty
days in advance of the expiration of any term of office, and shall also notify the
court promptly if any vacancy occurs. Appointments to fill vacancies shall be
only for the unexpired portion of the term. Members may be reappointed to
succeed themselves. Members of the board shall hold no other public office in
the county or municipality except that one may be a member of the local
planning commission. A member whose term expires shall continue to serve
until his successor is appointed and qualifies.
Counties and municipalities may, by ordinances enacted in each jurisdiction,
create a joint board of zoning appeals, which shall consist of two members
appointed from among the residents of each participating jurisdiction by the
circuit court of each county or city, plus one member from the area at large to
be appointed by the circuit court or jointly by such courts if more than one,
having jurisdiction in the area. The term of office of each member shall be five
years except that of the two members first appointed from each jurisdiction, the
term of one shall be for two years and of the other, four years. Vacancies shall
be filled for the unexpired terms. In other respects, joint boards of zoning
appeals shall be governed by all other provisions of this article.
The board shall elect from its own membership its officers who shall serve
annual terms as such and may succeed themselves. For the conduct of any
hearing and the taking of any action, a quorum shall be not less than a majority
of all the members of the board. The board may make, alter and rescind rules
and forms for its procedures, consistent with ordinances of the county or munic-
ipality and general laws of the Commonwealth. The board shall keep a full
public record of its proceedings and shall submit a report of its activities to the
governing body or bodies at least once each year.
Within the limits of funds appropriated by the governing body, the board
may employ or contract for secretaries, clerks, legal counsel, consultants, and
other technical and clerical services. Members of the board may receive such
compensation as may be authorized by the respective governing bodies. Any
board member may be removed for malfeasance, misfeasance or nonfeasance
in office, or for other just cause, by the court which appointed him, after
hearing held after at least fifteen days' notice. (Code 1950, §§ 15-825, 15-850;
Code 1950 (Suppl.), § 15-968.8; 1950, pp. 176, 489; 1952, c. 688; 1962, c. 407;
1975, c. 641; 1976, c. 642; 1977, c. 172.) -
§ 15.1-495. Powers and duties of board of zoning appeals. — Boards of
zoning appeals shall have the following powers and duties:
(a) To hear and decide appeals from any order, requirement, decision or
determination made by an administrative officer in the administration or
enforcement of this article or of any ordinance adopted pursuant thereto.
(b) To authorize upon appeal or original application in specific cases such
variance from the terms of the ordinance as will not be contrary to the public
interest, when, owing to special conditions a literal enforcement of the provi-
sions will result in unnecessary hardship; provided that the spirit of the
ordinance shall be observed and substantial justice done, as follows:
When a property owner can show that his property was acquired in good faith
and where by reason of the exceptional narrowness, shallowness, size or shape
of a specific piece of property at the time of the effective date of the ordinance,
235
—16—
§ 15.1-495 CODE OF VIRGINIA
§ 15.1-495
or where by reason of exceptional topographic conditions or other extraordi-
nary situation or condition of such piece of property, or of the use or
development of property immediately adjacent thereto, the strict application of
the terms of the ordinance would effectively prohibit or unreasonably restrict
the use of the property or where the board is satisfied, upon the evidence heard
by it, that the granting of such variance will alleviate a clearly demonstrable
hardship approaching confiscation, as distinguished from a special privilege or
convenience sought by the applicant, provided that all variances shall be in
harmony with the intended spirit and purpose of the ordinance.
No such variance shall be authorized by the board unless it finds:
(1) That the strict application of the ordinance would produce undue
hardship.
(2) That such hardship is not shared generally by other properties in the
same zoning district and the same vicinity.
(3) That the authorization of such variance will not be of substantial detri-
ment to adjacent property and that the character of the district will not be
changed by the granting of the variance.
No such variance shall be authorized except after notice and hearing as
required by § 15.1-431.
No variance shall be authorized unless the board finds that the condition or
situation of the property concerned or the intended use of the property 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.
In authorizing a variance the board may impose such conditions regarding
the location, character and other features of the proposed structure or use as
it may deem necessary in the public interest, and may require a guarantee or
bond to insure that the conditions imposed are being and will continue to be
complied with.
No such appeal hear and decide appeals from the decision of the zoning administrator.
§ 15. such shall be heard except after notice and hearing as provided by
(d) To hear and decide applications for interpretation of the district map
where there is any uncertainty as to the location of a district boundary. After
notice to the owners of the property affected by any such question, and after
public hearing with notice as required by § 15.1-431, the board may interpret
the map in such way as to carry out the intent and purpose of the ordinance
for the particular section or district in question. The board shall not have the
power to change substantially the locations of district boundaries as estab-
lished by ordinance.
"(e) No provision of § 15.1-495 shall be construed as granting any board the
power to rezone property.
(fl To hear and decide applications for such special exceptions as may be
authorized in the ordinance. The board may impose such conditions relating to
the use for which a permit is granted as it may deem necessary in the public
interest and may require a guarantee or bond to insure that the conditions
imposed are being and will continue to be complied with.
No such special exception may be granted except after notice and hearing as
provided by § 15.1-431. (Code 1950, H 15-83115-850; Code 1950 (Suppl.), §
15-968.9; 1950, p. 176; 1962, c. 407; 1964, c. 5K 1972, c. 695; 1975, cc. 521,
641.)
Editor's note. — The cases in the following law for the year 1970-1971, see 57 Va. L. Rev.
annotation were decided under provisions of 1572 (1971). For case comment entitled, "Judi -
former chapter 24 of Title 15, now repealed. cial Attitudes Toward Multiple -Family Dwell-
L.
onLaw m nic pal corporations eview. — For ra d admivey of re tat ve Rev. 220 (1971). For article, inia law ings: A Reappraisal," 8Virg "Virginia Natural
236
—17—
§ 15.1-495
ns or other extraordi-
ty, or of the use or
he strict application of
unreasonably restrict
,on the evidence heard
clearly demonstrable
i a special privilege or
variances shall be in
•dinance.
iless it finds:
:ould produce undue
Lher properties in the
e of substantial detri-
ie district will not be
iotice and hearing as
that the condition or
of the property is not
viably practicable the
in .amendment to the
co ions regarding
�d k: ture or use as
equire a guarantee or
id will continue to be
zoning administrator.
earing as provided by
n of the district map
strict boundary. After
h question, and after
board may interpret
pose of the ordinance
.rd shall not have the
boundaries as estab-
anting any board the
!xceptions as may be
conditions relating to
�cessary in the public
e that the conditions
h.
notice and hearing as
erode 1950 (Suppl.), §
c. 695; 1975, cc. 521,
0.1971, see 57 Va. L. Rev.
comment entitled, "Judi-
-d Multiple -Family Dwell -
se( Wash. & Lee L.
arts• . Arginia Natural
§ 15.1-495 COUNTIES, CITIES AND TOWNS
Resources Law and the New Virginia Wetlands
Act," see 30 Wash. & Lee L. Rev. 19 (1973). For
survey of Virginia law on municipal corpora-
tions for the year 1975-1976, see 62 Va. L. Rev.
1455 (1976). For article entitled, "Upzoning,
Public Policy, and Fairness," see 17 Wm. &
Diary L. Rev. 701 (1976).
Purpose of board of zoning appeals. —
Overall zoning laws are of a nonspecific and
general nature. They are not perfect and can
hardly be made perfect, thus the necessity for
the creation of boards of zoning appeals. The
very purpose of these boards is, within the
confines of the law, to vary specific terms of
zoning ordinances to the end that the intent of
the zoning law may be effectuated, keeping in
mind that the health, safety, morals and gen-
eral welfare of the public is the basis for the
enactment of such laws. Board of Zoning
Appeals v. Fowler, 201 Va. 942,114 S.E.2d 753
(1960).
Boards of zoning appeals function to vary,
within the confines of the law, specific terms of
zoning ordinances to the end that the intent of
the zoning law may be effectuated. These
boards furnish elasticity in the application of
regulatory measures so that they do not operate
in an arbitrary or confiscatory and,
consequently, unconstitutional manner.
Gayton Triangle Land Co. v. Board of Supvrs.,
216 Va. 764, 222 S.E.2d 570 (1976).
The board is a creature of statute pos-
sessing only those powers expressly conferred
upon it. Lake George Corp. v. Standing, 211 Va.
733, 180 S.E.2d 522 (1971); Board of Zoning
Appeals v. Cedar Knoll, Inc., 217 Va. 740, 232
S.E.2d 767 (1977).
This section does not confer upon the
board original jurisdiction to entertain an
appeal from the terms of a zoning ordinance.
Lake George Corp. v. Standing, 211 Va. 733,
180 S.E.2d 522(1971).
Where the proceeding before the board was
on an original petition and not on an appeal
from a prior order or decision, the board was
without power and jurisdiction to entertain the
application for a variance, and the decision of
the board was null and void. Lake George Corp.
v. Standing, 211 Va. 733, 180 S.E.2d 522 (1971).
Jurisdiction to grant variance. — Under
the terms of this section, the board has jurisdic-
tion to grant a variance only upon an appeal
from a prior decision of a zoning officer. Lake
George Corp. v. Standing, 211 Va. 733, 180
S.E.2d 522(1971).
Jurisdiction to revoke special use permit.
— A board of zoning appeals does not have
original jurisdiction to revoke a special use
permit which it has granted. Board of Zoning
Appeals v. Cedar Knoll, Inc., 217 Va. 740, 232
S.E.2d 767(1977).
The issuance of a special use permit is purely
a legislative function delegated to the board of
§ 15.1-495
zoning appeals and revocable by the board of
supervisors by ordinance at any time. Board of
Zoning Appeals v. Cedar Knoll, Inc., 217 Va.
740, 232 S.E.2d 767 11977).
Board must consider each case on its
merits. — In determining whether a variance
for a particular piece of property shall be
granted, the board must consider each case on
its own peculiar facts or merits. In the per-
formance of this duty the board is clothed with
discretionary power, but this power must be
exercised intelligently, fairly, within the
domain of reason, and not arbitrarily. Azalea
Corp. v. City of Richmond, 201 Va. 636, 112
S.E.2d 862 (1960); Board of Zoning Appeals v.
Fowler, 201 Va. 942, 114 S.E.2d 753 (1960).
Financial loss, standing alone, cannot
establish an extraordinary or exceptional
situation or hardship approaching confiscation
sufficient to justify the granting of a variance of
a zoning regulation, but it is a factor or an ele-
ment to be taken into consideration and should
not be ignored. Azalea Corp. v. City of
Richmond, 201 Va. 636. 112 S.E.2d 862 (1960).
The provisions of the second paragraph
of subdivision (b) are stated in the
disjunctive. Therefore, appellant was required
to show one of several situations which would
unreasonably restrict the use of its property in
addition to satisfying the three specifically enu-
merated tests in the third paragraph of subdi-
vision (b) in order to sustain its request for a
variance. Tidewater Util. Corp. v. City of
Norfolk, 208 Va. 705, 160 S.E.2d 799 (1968).
Not only must an applicant show the exis-
tence of at least one of several "special condi-
tions" which would cause compliance with a
zoning ordinance to result in an "unnecessary
hardship," but the board of zoning appeals must
find that the three enumerated tests set forth in
subsection (b) of this section are satisfied to
qualify for a variance from a zoning ordinance.
Packer v. Hornsby, Va. 267 S.E.2d 140
(1980).
Variances to be granted only where
restrictions constitutionally impermissible.
— The language used in subsection (b) of this
section to define "unnecessary hardship"
clearly indicates that the General Assembly
intended that variances be granted only in
cases where application of zoning restrictions
would appear to be constitutionally
impermissible. Packer v. Hornsby, Va. ,
267 S.E.2d 140(1980).
Self-inflicted hardship, whether delib-
erately or ignorantly incurred, affords no
basis for the granting of a variance. Alleghany
Enterprises, Inc. v. Board of Zoning Appeals,
217 Va. 64, 225 S.E.2d 383 (1976).
Exhaustion of administrative remedies
required. — When a landowner claims a
zoning ordinance is invalid as applied to his
specific property, he must exhaust adequate
237
2=.
§ 15.1-495.1 CODE OF VIRGINIA § 15.1-496.1
and available administrative remedies before
proceeding by declaratory judgment to make a
direct judicial attack on the applied
constitutionality of the ordinance. Gayton Tri-
angle Land Co. v. Board of Supvrs., 216 Va. 764,
222 S.E.2d 570 (1976).
But not application for useless variance.
— Landowner challenging the validity of a
zoning ordinance as applied to his property
need not apply for a variance before bringing
his declaratory judgment action if the chal-
lenged restrictions or obligations could not be
remedied by variance. Gayton Triangle Land
Co. v. Board of Supvrs., 216 Va. 764, 222 S.E.2d
570 (1976).
Variance allowing total exemption not
the purpose of section. — When the relief
sought constitutes a challenge to the
constitutionality of a zoning ordinance in its
entirety, only a variance providing total exemp-
tion would vindicate the rights asserted. But a
variance releasing landowners from all the
restrictions and obligations complained of
would be contrary to the intended "spirit and
purpose" of a challenged ordinance, and
therefore would be beyond the purport of this
section. Board of Supvrs. v. Rowe, 216 Va. 128,
216 S.E.2d 199 (1975).
A zoning restriction upon the privilege of
proximity to the ocean does not constitute an
"unnecessary hardship" within the meaning of
subsection (b) of this section. Packer v.
Hornsby, Va. , 267 S.E.2d 140 (1980).
Sewage disposal plant entitled to vari.
ance. — A sewage disposal plant, a
nonconforming use under a city zoning
ordinance. was required to expand its sludge
drying beds in order to meet standards imposed
by the State Water Control Board. It was held
that the plant was entitled, as a matter of law,
to a variance from the terms of the ordinance,
since a strict application of the zoning
ordinance produced undue hardship
approaching confiscation, such hardship not
shared generally by other properties in same
zoning district, a variance would not be a detri-
ment to adjacent property, and the character of
district would not be changed, and a variance
would not adversely affect the health, safety or
general welfare of the neighborhood, but would
do substantial justice and be in harmony with
the intended spirit of the zoning ordinance.
Tidewater Util. Corp. v. City of Norfolk, 208
Va. 705, 160 S.E.2d 799 (1968).
Failure to grant variance held abuse of
discretion. Azalea Corp. v. City of Richmond,
201 Va. 636, 112 S.E.2d 862 (1960).
Record transmitted on certiorari. — If the
record transmitted on certiorari does not reflect
the findings underlying the board's decision,
the parties cannot properly litigate, the circuit
court cannot properly adjudicate and the
Supreme Court cannot properly review the
issues on appeal. Packer, v. Hornsby, Va.
, 267 S.E.2d 140 (1980).
§ 15.1-495.1: Repealed by Acts 1975, c. 641.
§ 15.1-496. Applications for special exceptions and variances. —
Applications for special exceptions and variances may be made by any property
owner, tenant, government official, department, board or bureau. Such applica-
tion shall be made to the zoning administrator in accordance with rules
adopted by the board. The application and accompanying maps, plans or other
information shall be transmitted promptly to the secretary of the board who
shall place the matter on the docket to be acted upon by the board. No such
special exceptions or variances shall be authorized except after notice and
hearing as required by § 15.1-431. The zoning administrator shall also
transmit a copy of the application to the local commission which may send a
recommendation to the board or appear as a party at the hearing. (Code 1950,
§§ 15-828 to 15-830, 15-832, 15-833, 15-850; Code 1950 (Suppl.), § 15-968.10;
1950, p. 176; 1962, c. 407; 1966, c. 256; 1975, cc. 521, 641.)
Law Review. — For survey of Virginia law
on municipal corporations for the year
1975-1976, see 62 Va. L. Rev. 1455 (1976).
§ 15.1-496.1. Appeals to board. — An appeal to the board may be taken
by any person aggrieved or by any officer, department, board or bureau of the
county or municipality affected by any decision of the zoning administrator.
Such appeal shall be taken within thirty days after the decision appealed from
by filing with the zoning administrator, and with the board, a notice of appeal
238
—19—
§ 15.1-496.1
sal plant entitled to vari-
sewage disposal plant, a
use under a city zoning
equired to expand its sludge
ler to meet standards imposed
er Control Board. It was held
.s entitled, as a matter of law,
n the terms of the ordinance,
application of the zoning
duced undue hardship
iscation, such hardship not
by other properties in same
variance would not be a detri-
property, and the character of
t be changed, and a variance
ely affect the health, safety or
f the neighborhood, but would
itice and be in harmony with
rit of the zoning ordinance.
Corp. v. City of Norfolk, 208
.2d 799 (1968).
int,variance held abuse of
as Corp. v. City of Richmond,
S.E.2d 862 (1960).
nitted on certiorari. — If the
d on certiorari does not reflect
erly' the board's decision,
t prk litigate, the circuit
roper., -adjudicate and the
cannot properly review the
Packer-v. Hornsby, Va.
40 (1980).
is and variances. —
)e made by any property
or bureau. Such applica-
accordance with rules
ing maps, plans or other
retary of the board who
i by the board. No such
except after notice and
lministrator shall also
-ision which may send a
he hearing. (Code 1950,
30 (Suppl.), § 15-968.10;
641.)
-he board may be taken
:, board or bureau of the
e zoning administrator.
de n appealed from
ooa notice of appeal
Tez
§ 15.1-496.2 COUNTIES, CITIES AND TOWNS § 15.1-496.3
specifying the grounds thereof. The zoning administrator shall forthwith
transmit to the board all the papers constituting the record upon which the
action appealed from was taken. An appeal shall stay all proceedings in fur-
therance of the action appealed from unless the zoning administrator certifies
to the board that by reason of facts stated in the certificate a stay would in his
opinion cause imminent peril to life or property, in which case proceedings
shall not be stayed otherwise than by a restraining order granted by the board
or by a court of record, on application and on notice to the zoning administrator
and for good cause shown. (1975, c. 521.)
§ 15.1-496.2. Procedure on appeal. — The board shall fix a reasonable
time for the hearing of an application or appeal, give public notice thereof as
well as due notice to the parties in interest and decide the same within sixty
days. In exercising its powers the board may reverse or affirm, wholly or partly,
or may modify, an order, requirement, decision or determination appealed
from. The concurring vote of three members shall be necessary to reverse any
order, requirement, decision or determination of an administrative officer or to
decide in favor of the applicant on any matter upon which it is required to pass
under the ordinance or to effect any variance from the ordinance. The board
shall keep minutes of its proceedings and other official actions which shall be
filed in the office of the board and shall be public records. The chairman of the
board, or in his absence the acting chairman, may administer oaths and compel
the attendance of witnesses. (1975, c. 521.)
Law Review. — For survey of Virginia law
on land use planning for the year 1974-1975,
see 61 Va. L. Rev. 1769 (1975).
§ 15.1-496.3. Proceedings to prevent construction of building in viola-
tion of zoning ordinance. — Where a building permit has been issued and
the construction of the building for which such permit was issued is subse-
quently sought to be prevented, restrained, corrected or abated as a violation
of the zoning ordinance, by suit filed within fifteen days after the start of
construction by a person who had no actual notice of the issuance of the permit,
the court may hear and determine the issues raised in the litigation even
though no appeal was taken from the decision of the administrative officer to
the board of zoning appeals.
The 1975 amendments to §§ 15.1-495 and 15.1-496 shall not be taken into
consideration nor be interpreted to have any effect on any litigation instituted
prior to January twenty-one, nineteen hundred seventy-five. (1975, c. 521.)
Meaning of "start of construction." — The
operation of a backhoe for two hours to dig sev-
eral holes for the base of a radio tower
amounted to, at the most, minimal work and
did not constitute "the start of construction"
within the contemplation of this section. It
could more properly be designated as work pre-
liminary to construction. WANV, Inc. v. Houff,
219 Va. 57, 244 S.E.2d 760 (1978).
Aggrieved persons. — The parties who may
be adversely affected by the construction of a
radio tower in a particular residential district
are those persons who own or live on property
within, or in close proximity to, the district.
They are the aggrieved persons, and the ones
contemplated by the section, which authorizes
"a person who had no actual notice of the issu-
ance of the permit" to institute proceedings to
prevent construction of the building in viola-
tion of a zoning ordinance. WANV, Inc. v.
Houff, 219 Va. 57' 244 S.E.2d 760 (1978).
Findings have weight of jury verdict. —
In a proceeding under this section, findings of
fact by the trial judge that the suit was filed
within 15 days of the start of construction and
that the suit was filed by a person who had no
actual knowledge of the issuance of the permit
had the weight of a jury verdict. WANV, Inc. v.
Houff, 219 Va. 57, 244 S.E.2d 760 (1978).
239
—20—
§ 15.1-497 CODE OF VIRGINIA § 15.1-497
§ 15.1-497. Certiorari to review decision of board. — Any person or
persons jointly or severally aggrieved by any decision of the board of zoning
appeals, or any taxpayer or any officer, department, board or bureau of the
county or municipality, may present to the circuit court of the county or city
a petition specifying the grounds on which aggrieved within thirty days after
the filing of the decision in the office of the board.
Upon the presentation of such petition, the court shall allow a writ of certio-
rari to review the decision of the board of zoning appeals and shall prescribe
therein the time within which a return thereto must be made and served upon
the relator's attorney, which shall not be less than ten days and may be
extended by the court. The allowance of the writ shall not stay proceedings
upon the decision appealed from, but the court may, on application, on notice
to the board and on due cause shown, grant a restraining order.
The board of zoning appeals shall not be required to return the original
papers acted upon by it but it shall be sufficient to return certified or sworn
copies thereof or of such portions thereof as may be called for by such writ. The
return shall concisely set forth such other facts as may be pertinent and
material to show the grounds of the decision appealed -from and shall be
verified.
If, upon the hearing, it shall appear to the court that testimony is necessary
for the proper disposition of the matter, it may take evidence or appoint a
commissioner to take such evidence as it may direct and report the same to the
court with his findings of fact and conclusions of law, which shall constitute a
part of the proceedings upon which the determination of the court shall be
made. The court may reverse or affirm, wholly or partly, or may modify the
decision brought up for review.
Costs shall not be allowed against the board, unless it shall appear to the
court that it acted in bad faith or with malice in making the decision appealed
from. (Code 1950, §§ 15-834 to 15-839, 15-850; Code 1950 (Suppl.), § 15-968.11;
1950, p. 176; 1962, c. 407; 1975, c. 641.)
Editor's note. — The cases in the following
annotation were decided under provisions of
former chapter 24 of Title 15, now repealed.
Law Review. — For article, "Virginia Nat-
ural Resources Law and the New Virginia
Wetlands Act," see 30 Wash. & Lee L. Rev. 19
(1973). For note entitled "Challenging
Exclusionary Zoning Practices," see 10 U. Rich.
L. Rev. 646 (1976).
The requirement that the petition shall
be "presented to the court" within thirty
days after the filing of the decision, is complied
with where within the period specified the peti-
tion is filed with the clerk of the court.
Therefore, it was error to dismiss a petition
because it had not literally been "presented to
the court." Ross v. Arlington County Bd., 197
Va. 91, 87 S.E.2d 794 (1955).
Presumption that board's power and
discretion properly exercised. — On an
appeal to the circuit court, there is a prima facie
presumption that the power and discretion of
the board of zoning appeals have been properly
exercised, and it must appear from the record
transmitted to the court, together with any
additional evidence taken and procedure had
under the statute, that the decision of the board
is plainly wrong before it may be disturbed by
the court. Hopkins v. O'Meara, 197 Va. 202, 89
S.E.2d 1 (1955); Board of Zoning Appeals v.
Combs, 200 Va. 471. 106 S.E.2d 755 (1959);
Board of Zoning Appeals v. Fowler, 201 Va. 942,
114 S.E.2d 753(1960).
Record not reflecting findings of board.
— If the record transmitted on certiorari does
not reflect the findings underlying the board's
decision, the parties cannot properly litigate,
the circuit court cannot properly adjudicate and
the Supreme Court cannot properly review the
issues on appeal. Packer v. Hornsby, Va.
, 267 S.E.2d 140 (1980).
Trial on appeal is not de novo in strict
sense of term. — The trial before the court is
not a de novo trial in the strict sense of the term
but a trial wherein the court should give con-
sideration to the fact that the board is
empowered to exercise a reasonable discretion
in determining whether or not a variance
should be granted or denied. Board of Zoning
Appeals v. Combs, 200 Va. 471, 106 S.E.2d 755
(1959).
A proceeding before the trial court under this
section is not a trial de novo. Alleghany Enter-
prises, Inc. v. Board of "Zoning Appeals, 217 Va.
64, 225 S.E.2d 383 (1976); Packer v. Hornsby,
Va. , 267 S.E.2d 140 (1980).
240
—21—
§ 15.1-497
trd. — Any person or
of the board of zoning
)oard or bureau of the
rt of the county or city
ithin thirty days after
1 allow a writ of certio-
als and shall prescribe
made and served upon
ten days and may be
I not stay proceedings
i application, on notice
ing order.
to return the original
-urn certified or sworn
•d for by -such writ. The
nay be pertinent and
ed :from and shall be
testimony is necessary
evidence or appoint a
report the same to the
hick shall constitute a
of hp court shall be
lay modify the
it shall appear to the
the decision appealed
(Suppl.), § 15-968.11;
,,. O'Meara, 197 Va. 202. 89
Hard of Zoning Appeals v.
i 1, 106 S.E.2d 755 (1959 );
)eals v. Fowler, 201 Va. 942,
;0).
zcling findings of board.
nsmitted on certiorari does
ngs underlying the board's
s cannot properly litigate,
not properly adjudicate and
cannot properly review the
'acker v. Hornsby, Va.
(1980).
is not de novo in strict
'he trial before the court is
the strict sense of the term
the court should give con -
fact that the board is
ise a reasonable discretion
ether or not a variance
,r denied. Board of 'Zoning
00 Va. 471, 106 S.E.2d 755
e the trial court under this
de novo. Alleghany Enter-
)fZqq' 1ppeals, 217 Va.
197A,, ker v. Hornsby,
.2d 140 (1980).
§ 15.1-498 COUNTIES, CITIES AND TOWNS § 15.1-498
Board's authority may not be challenged
before decision. — Plaintiffs contention that
since this section provided him, because he was
a taxpayer, the right of judicial review to attack
the authority of the board of zoning appeals
after a decision was made by the board, he had,
a fortiori, the right to challenge such authority
before such a decision was made, was clearly
without merit. City of Fairfax v. Shanklin, 205
Va. 227, 135 S.E.2d 773 (1964).
Burden on appellant. — On appeal, the
burden was on appellant to show to the
satisfaction of the court that the permit granted
by the board of zoning appeals was contrary to
law. Wicker Apts. v. City of Richmond, 199 Va.
263, 99 S.E.2d 656 (1957); Board of Zoning
Appeals v. Combs, 200 Va. 471, 106 S.E.2d 755
(1959).
On appeal there is a presumption that the
board of zoning appeals acted correctly and the
burden is on the appellant to show to the
satisfaction of the court either that the permit
granted by the board was contrary to law or
that the board's decision was plainly wrong
under the evidence. C. & C. Inc. v. Semple, 207
Va. 438, 150 S.E.2d 536 (1966); Tidewater Util.
Corp. v. City of Norfolk, 208 Va. 705,160 S.E.2d
799(1968).
There is a presumption that the board's deci-
sion was correct and the burden is on the appel-
lant to overcome this presumption. Alleghany
Enterprises, Inc. v. Board of Zoning Appeals,
217 Va. 64, 225 S.E.2d 383 (1976); Packer v.
Hornsby, Va. , 267 S.E.2d 140 (1980).
Weight of board's decision. — The decision
of the board is presumed to be correct, and the
court should not substitute its discretion for
that of the board. The court may not disturb the
board's decision unless it has applied erroneous
principles of law or where the board's discretion
is involved unless the evidence before the court
proves to its satisfaction that the board's deci-
sion is plainly wrong and violative of the
purpose and intent of the zoning ordinance.
Board of Zoning Appeals v. Combs, 200 Va. 471,
106 S.E.2d 755 (1959); C. & C. Inc. v. Semple,
207 Va. 438, 150 S.E.2d 536 (1966); Tidewater
Util. Corp. v. City of Norfolk, 208 Va. 705, 160
S.E.2d 799 (1968).
The court may not disturb the decision of a
board of zoning appeals unless the board has
applied erroneous principles of law or, where
the board's discretion is involved, unless the
evidence proves to the satisfaction of the court
that the decision is plainly wrong and in viola-
tion of the purpose and intent of the zoning
ordinance. Alleghany Enterprises, Inc. v. Board
of Zoning Appeals, 217 Va. 64, 225 S.E.2d 383
(1976); Packer v. Hornsby, Va. 267
S.E.2d 140 (1980).
Variance allowing total exemption
needed. — When the relief sought constitutes
a challenge to the constitutionality of a zoning
ordinance in its entirety, only a variance
providing total exemption would vindicate the
rights asserted. But a variance releasing
landowners from all the restrictions and obli-
gations complained of would be contrary to the
intended "spirit and purpose" of a challenged
ordinance, and therefore would be beyond the
purport of this section. Board of Supvrs. v.
Rowe, 216 Va. 128, 216 S.E.2d 199 (1975).
Action by a city council not encompassed
by this section. — See Fralin & Waldron, Inc.
v. City of Martinsville, 370 F. Supp. 185 (W.D.
Va. 1973), affd, 493 F.2d 481 (4th Cir. 1974).
Adjudication in certiorari proceeding
does not bar declaratory judgment pro-
ceeding. — Having sought special use permit
under interim ordinance in certiorari pro-
ceeding, appellant was not barred by adjudica-
tion in that proceeding from challenging
validity of ordinance in declaratory judgment
proceeding. different issues being involved.
Matthews v. Board of Zoning Appeals, 218 Va.
270,237 S.E.2d 128(1977).
Corporations not owning real estate held
not aggrieved by decision of board of zoning
appeals in the instant case. Belle -Haven Citi-
zens Ass'n v. Schumann, 201 Va. 36,109 S.E.2d
139 (1959).
Applied in Board of Zoning Appeals v.
Columbia Pike, Ltd. Partnerships, 213 Va. 437,
192 S.E.2d 778 (1972); Fralin & Waldron, Inc. V.
City of Martinsville, 493 F.2d 481 (4th Cir.
1974); Board of Zoning Appeals v. Cedar Knoll,
Inc., 217 Va. 740, 232 S.E.2d 767 (1977).
§ 15.1-498. Conflict with statutes, local ordinances or regulations. —
Whenever the regulations made under authority of this article require a
greater width or size of yards, courts or other open spaces, require a lower
height of building or less number of stories, require a greater percentage of lot
to be left unoccupied or impose other higher standards than are required in any
other statute or local ordinance or regulation, the provisions of the regulations
made under authority of this article shall govern. Whenever the provisions of
any other statute or local ordinance or regulation require a greater width or
size of yards, courts or other open spaces, require a lower height of building or
a less number of stories, require a greater percentage of lot to be left
unoccupied or impose other higher standards than are required by the regu-
241
—22—