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HomeMy WebLinkAbout02-05 High View One LLC - Back Creek - BackfileBOARD OF ZONING APPEALS Variance Request Tracking Sheet Date: 1 ,Z File opened Reference Manual updated/number assigned p . D-base updated One B&W location map requested from GIS Two sets of labels requested from Data Processing 01, Al d 5- File given to Renee' to update Application Action Summary a1A--- MEETING DATE: _7�FINAL ACTION: CLOSE OUT FILE: 0-5-- Approval (or denial) letter mailed to applicant/copy made for file 2 �� 65' File stamped "approved", "denied" or "withdrawn" . . . 05- Reference Manual updated 1,J& ©5" D-base updated l (9. D j ' File given to Renee' for final update to Application Action Summary 6Nk/ Wi3ev\Common\Tracking sheetsMA Tracking.bu Revised 05/25/01 a ITT> MY ClI a L 107 d o� -Ar/hV,6-' �miv e6 v,Y 4 nJ C,-,-b &6 DATE JIQ 10 NO. 8055 AMT. OF I CASH I ACCOUNT AMT. PAID CHECK S BALANCE I I ORDER BY � � --/-0O f /L F s MEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS ,a Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on February 15, 2005. PRESENT: Theresa Catlett, Chairman;.:Opequon District; Dwight Shenk, Gainesboro District; Robert Perry, Vice Chairman, Stonewall District; Kevin Scott, Shawnee District; and, Dudley Rinker, Back Creek District. ABSENT: Lennie Mather, Red Bud District; Robert W. Wells, Member -At -Large STAFF. PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; Bernard S. Suchicital, Zoning Inspector; and, Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. JANUARY 18, 2005 MINUTES On a motion by Mr. Rinker, the minutes for the January 18, 2005 meeting were unanimously approved as presented. PUBLIC HEARING Variance Request 408-04 of David Hicks, presented by Artz & Associates, for a 40 foot side yard variance, on both sides. This property is located in the 2200 block of Front Royal Pike (Route 522), on the west side. The subject property is identified with Property Identification Number 76A-1-30 in the Opequon Magisterial District. ACTION - VARIANCE APPROVED Chairman Catlett stated that she will turn the meeting over to Vice Chairman Perry as she needs to abstain from the two variance requests from David Hicks. Vice Chairman Perry asked Mr. Cheran to present the staff report. Mr. Cheran gave the background information. This application is for a variance for property located in the 2200 block of Front Royal Pike in the Opequon Magisterial District. This property is currently zoned RA (Rural Areas) and the land use is vacant. The surrounding property is zoned RA and RP (Residential Performance) and the land uses are vacant, residential and school. The applicant is requesting a 40 foot side yard variance on both sides. This property was created in 1946 as noted by the deed and plats included in the agenda. Frederick County adopted a comprehensive zoning in 1967. The Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page1269 Frederick County historical map shows this property was zoned A-2 in 1967. The property setback lines at the adoption of the zoning ordinance were 35 feet from the front and 15 feet from the sides. Frederick County amended its Code in 1989 to change the A-1 and A-2 zoning districts to the current RA (Rural Areas) zoning district. The current setbacks for a property in the RA zoning district abutting lots with residential use are 60 feet front, 50 feet on the rear and sides. Mr. Cheran further stated that the Code of Virginia, Section 15.2-2309(2) states that no variance should be authorized by the Board unless it finds that (a) strict application of the Ordinance would produce an undue hardship; (b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and, (c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. The applicant is seeking a variance of 40 feet on the sides of this property. Should this variance be granted, the building setbacks for this property would be 60 feet from the front,10 feet from the sides and 50 feet from the rear as noted in the plat submitted with the application. It appears that this variance meets the intent of the Code of Virginia, Section 15.2-2309(2) and the request for a 40 foot variance from the current setbacks of the RA zoning district maybe justified. Should this variance be granted, it will allow having the similar setbacks of the adjacent properties, with structures built prior to the current zoning ordinance. Vice Chairman Perry asked if the property owner has a set of house plans for this particular lot. As Mike Artz of Artz & Associates was not present, Mr. Eric Ertel approached the podium on behalf of David Hicks. Mr. Ertel stated that he did not have the plans with him; Mr. Artz was supposed to be in attendance and Mr. Ertel is not prepared to show the Board anything. However, Mr. Ertel knows what the plan is; they are putting up a house that is basically 28 feet wide, two story, 900 square feet per floor. There would be two houses built as there are two lots in question. Vice Chairman Perry questioned Mr. Ertel that if the planned house is only 28 feet wide, they only need a 3 9 foot variance. Mr. Ertel stated they had not picked a plan, but that plan could fit on the lot, so that is true. Vice Chairman Perry asked if anyone is present to speak in favor of this request and Mr. Ertel stated that he is. No one else spoke in favor of the request. Vice Chairman Perry asked if anyone is present to speak against the variance. Mr. Phillip Summer approached the podium, stating that he is an adjacent property owner. He stated that the applicant has already built two houses very similar to the ones that were just described on adjacent lots that are much too close together. Mr. Summer's main concern is that they're going to put two houses on one lot and there's nothing in the plans that show access in terms of drive ways. Mr. Summer is assuming it's off of Route 522 and there's no way to put a drive way in there, and certainly not for two houses. Mr. Summer further stated that there was a dwelling on the property that was demolished less than two months ago, and now it's still a property of asbestos and insulation and the property owner and the builder have been adding to that pile. Mr. Summer and the co- owner of the adjacent property object to the variance; they think it is way over -packed for the two dwellings they're asking to be placed on this lot, especially in relationship to the surrounding properties. Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1270 Vice Chairman Perry asked Mr. Cheran if there could be two houses on the lot. Mr. Cheran responded that Mr. Ertel spoke incorrectly; actually this is for one dwelling. The following variance request that is to be heard today is the other lot in question. These are two lots next to each other. Mr. Cheran stated for the record that there was a dwelling on this property and it wouldn't meet the non -conforming use. There will not be two houses on this property, just one. Mr. Summer stated he thinks that the existing lots, which are the same size on which two houses were built, that the houses on the lots are too big for the size of the lots and the setbacks and the request for the setbacks enhances that problem. Mr. Summer said they would appreciate it if the Board does not grant the variance. Vice Chairman Perry asked Mr. Cheran what is the requirement for access from Route 522. Mr. Cheran stated that currently the access for that property would be a drive way off of Route 522. As shown on the map included in the agenda, the houses that are currently there do have access to Route 522 South. Those houses, some of them, were built prior to the zoning ordinance. Mr. Summer stated he believed that is not correct. He believes those houses, when Route 522 was re -adjusted and reconfigured, were given access to what is now termed Calloway Court. They all have drive ways coining off their properties onto there and they do not use Route 522 at all for access. As a matter of fact, those drive ways that approach off of Route 522have been removed for the lots that are adjacent here. Mr. Summer further stated that the two houses that are there are connected by a gravel, single car drive way, that runs out to Calloway Court. Mr. Ertel once again approached the podium. He apologized and stated that he realizes there are two different hearings for the two different lots. When it comes to access to this property, the gentleman who builds the houses that are not question today, is a different applicant and a different builder. Right now there is a paved drive way coming off of Route 522. It will be the intention to come off that same drive way to feed into these lots. Mr. Ertel feels it is a confusing issue to bring the other two houses that were built recently, as they are not part of this equation at all and they use a different access road. Vice Chairman Perry asked Mr. Ertel which lot has this access road that he's speaking of. Mr. Ertel said it is the one that is the most southern lot, which is this variance request. Mr. Ertel further stated that when it comes to the density of these lots, it looks like the gentleman who was arguing the point of us getting the structure up here, is on a similar narrow lot that has a structure on it, too, so it goes with the flow of the rest of the structures that are there now. Mr. Scott asked for the size of these lots again. Mr. Ertel stated they are right at 9,000 feet; they're 50 feet wide. Vice Chairman Perry stated that it is his personal opinion that we should not do any more than what is necessary, and he would not be in favor of granting a 40 foot variance if he only needs 39 feet. Vice Chairman Perry does not want to set a precedent. Mr. Ertel stated that they do not have the house plans. If they are granted what they are requesting, they will find a house that will confine to those Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1271 restrictions. The neighboring lot was granted a 10 foot side yard and that's all they're asking for. Mr. Ertel assumes that this Board granted it so the precedent has already been set. Mr. Rinker stated that each variance stands on its own, it's not precedent setting. Vice Chairman Perry asked if there were any other questions from the Board and there were none. Vice Chairman Perry asked for a motion. Mr. Shenk made a motion to approve this variance request, seconded by Mr. Scott. The vote was unanimous. PUBLIC HEARING Variance Request #09-04 of David Hicks, presented by Artz & Associates, for a 40 foot side yard variance, on both sides. This property is located in the 2200 block of Front Royal Pike (Route 522), on the west side. The subject property is identified with Property Identification Number 76A-1-30 in the Opequon Magisterial District. ACTION - VARIANCE APPROVED Mr. Cheran presented the staff report. The applicant is requesting a 40 foot side yard variance on both sides of this property located in the 2200 block of Route 522 South on the western side in the Opequon Magisterial District. This property is zoned RA (Rural Area) and the land use is vacant. The adjacent properties are all rural areas, except for the property on the west, which is RP (Residential Performance). The land use is residential, vacant and school respectively. Mr. Cheran further stated the reason for the variance is that the lot predates the current Zoning Ordinance with regards to RA setbacks and prevents new structures to be built. This property was created in 1946 as noted by the deed and plats included in the agenda. Frederick County adopted a comprehensive zoning in 1967. The Frederick County historical map shows this property was zoned A-2 in 1967. The property setback lines at the adoption of the zoning ordinance were 3 5 feet from the front and 15 feet from the sides. Frederick County amended its Code in 1989 to change the A-1 and A-2 zoning districts to the current RA (Rural Areas) zoning districts. The current setbacks for a property in the RA zoning district abutting lots with residential use are 60 feet front, 50 feet on the rear and sides. The applicant is seeking a 40 foot variance on the sides of this property. Should this variance be granted, the building setbacks will be 60 feet from the front, 10 from the sides and 50 from the rear, as noted on the plat in the agenda. It appears that this variance meets the intent of the Code of Virginia, Section 15.2-2309(2) and the request for a 40 foot variance from the current setbacks of the RA zoning district may be justified. Should this variance be granted, it will allow having the similar setbacks of the adjacent properties, with structures built prior to the current zoning ordinance. Vice Chairman Perry stated this appears to be a mirror of the previous variance request and Mr. Cheran responded that is correct. Vice Chairman Perry asked if anyone is present to speak in favor of the variance request. Mr. Eric Ertel approached the podium. He stated this is a mirror application of the previous lot. Mr. Ertel felt it was all covered well during the last request. Vice Chairman Perry asked if anyone is present to speak against the request. Again, Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1272 Mr. Phillip Summer approached the podium. Mr. Summer reiterated his objection, stating there are already two houses crowded on two lots of the same size and the Board just authorized a variance for a third one and now you're looking at a fourth one. Mr. Summer stated that Mr. Ertel misspoke; Mr. Summer's lot is one half acre. Mr. Summer stated that it might be more important that the Board go and take a look, or have somebody go and take a look, as to what's going on there on these particular lots and how it's all laid out. Mr. Summer objects to the application. Vice Chairman Perry asked if any Board members had any questions and there was no response. Vice Chairman Perry asked if there was any discussion, and there was no response. Mr. Shenk made a motion to approve the variance request, Mr. Scott seconded the motion and it passed unanimously. Vice Chairman Perry turned the meeting back over to Chairman Catlett. PUBLIC HEARING Appeal Application #01-05 of Colleen McDonough, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to adjoining property setback requirements. The subject property is located at 162 Hopewell Road in Welltown Heights Subdivision, and is identified with Property Identification Number 32-5-5 in the Stonewall District. ACTION — APPEAL DENIED Chairman Catlett asked Mr. Cheran for the staff report. Mr. Cheran stated this is an appeal of the decision of the Zoning Administrator pertaining to adjoining setback requirements for property located at 162 Hopewell Road in Welltown Heights Subdivision in the Stonewall Magisterial District. The land is zoned RA (Rural Area) and its land use is residential. The adjoining properties are zoned RA and the land use is orchard and residential respectively. The applicant is appealing the decision of the Zoning Administrator in the administration of Frederick County Zoning Ordinance pertaining to the adjoining property setback requirements. The property was created in 1966 as noted by the deed and plats included with the agenda. The deed has recorded plats that set the building restriction lines for lot 32-5-5 as 10 feet from the sides and 50 feet from the front. Staff is requesting to affinn the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-4, Administration and Interpretation of the zoning ordinance by the Zoning Administrator regarding the recorded deed and plat for setbacks and issuance of a building permit for lot 32-5-5 of the Welltown Heights Subdivision. Mr. Cheran stated that for the record, the applicant is here and also the property owner of the subject property is here. Chairman Catlett asked Mr. Cheran if the applicant is not the property owner, and Mr. Cheran responded that is correct, the applicant is not the owner. Mr. Rinker stated he is confused that there is not a copy of the letter, that went to the applicant as to the Zoning Administrator's decision. He asked if the side setbacks need to be addressed. Mr. Cheran stated that when the permit was applied for, sent in with the application, the deed and plat showing it was recorded were attached. Staff hand -delivered the Zoning Administrator's Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1273 decision. Mr. Cheran apologized for not providing the Board with a copy of this letter. The decision of the Zoning Administrator was through the application process of a building permit; the applicant submitted copies of the Welltown Heights Subdivision created in 1966, prior to the zoning ordinance. As a recorded deed and with the plats, you will note it talks about the setback requirements of that property being 10 feet, and that is what the Zoning Administrator went on and issued the building permit. Since then, the applicant is appealing that decision with reference to today's zoning ordinance. Mr. Rinker stated that they are looking at it opposite from what they normally do, and Mr. Cheran stated that would be correct. Chairman Catlett stated, to set the record straight, if someone comes in with a plat that does have setbacks identified on the plat, those remain in effect if zoning is later changed. Mr. Cheran said yes, if it's prior to the zoning ordinance, that's correct. Chairman Catlett asked Mr. Cheran that in lieu of that plat, he has gone on the deed for this entire subdivision. Mr. Cheran said that's right, and if you read the deed with the plats that accompany it, it identifies the lots and that is what the Zoning Administrator went on when the permits were issued. Mr. Cheran further stated that commonly, the current Zoning Administrator requires that we do site surveys regardless on non -conforming properties. Mr. Rinker asked for further clarification. He said that the County is saying that the setback is 10 feet from each side, and Mr. Cheran said that is correct. Mr. Rinker asked if the applicant is saying that it shouldn't be 10 feet, but it should be today's zoning, which is 50 feet. Chairman Catlett told the members to keep in mind that the applicant is not the owner of the property who is the applicant for the building permit. Chairman Catlett asked if the applicant is here. Ms. McDonough approached the podium and stated that she is the owner of the adjacent property. Ms. McDonough gave each member a prepared presentation. Ms. McDonough stated that basically the purpose is to determine or verify the following: that the Frederick County Zoning Administrator correctly determined the setback requirements for the building of new homes on adjacent properties to her home in the rural area of Hopewell Road, specifically lot 5; if the Zoning Commission actually has the authority to enforce deeds; where setback requirements are not shown or illustrated on land plats, can the Zoning Administrator detennine setbacks based on language mentioned in a deed; to confirm that Welltown Heights is currently considered rural area, even though it was parceled out or subdivided in 1967; to confirm setback requirements for RA areas within subdivided parcels; to confirm that deeds are actually civil issues and not zoning issues; and, to illustrate the adjacent properties which also have been approved at 10 foot setbacks, where the deed does not have any mention of setbacks, for example lot B4. Ms. McDonough further stated that one of the impacts of the approved 10 foot setbacks from the adjacent property line, with the house being so close to the property line, is that the back two acres that she owns are currently land locked. The only way she can get to that back two acres is to put a drive way on her property. Further impacts would be safety, potential neighbor disputes, current and future financial impacts, future adjacent property development, environmental impacts and no alternate drainfield location. Ms. McDonough asked the members to refer to the photographs she provided them that illustrate the proximity of the new construction to the existing property line. She stated that the photograph will show how close this new construction actually is to the property line. Ms. McDonough referred the members to her diagram titled "New Driveway to exceed 320' from road frontage". The diagram shows the new home and the approximate location of the drainfield. It Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1274 further shows where the future proposed drive way to get to the back two acres would be located. It needs to be located there; there isn't another alternate drive way location because of an existing drainfield serving her house. To get back to her two acres, this is more than a 320 foot drive on an incline, so on a snowy night coming off that back two acres within ten feet of that drive way will be the corner of his house. In order to avoid any potential safety issues there, there's going to be a financial impact on her part to either put fencing up, and other impacts like financial and neighborhood disputes. Ms. McDonough has copies of all the deeds and they reference a 10 foot setback from the sides, they don't mention the back or the front, and the plats do not show any setback requirements drawn on theirs, so she's in doubt as to if the zoning was actually made correctly. Based on the fact that the existing deeds for lots 5 and 8 do not show setback requirements on the original plat and the deed only references two sides of the subject property, it's her concern that perhaps the Zoning Administrator has not correctly enforced the zoning requirements for this area. It is also her understanding that at the time she purchased her home, that this area was in an RA zone and that setback requirements would be 50 feet on all three sides regardless of any grandfather clause or regardless of Welltown Heights subdivided parcels of 1966. Additionally, since lot B4 was also approved with a 10 foot setback where the deed nor the plat indicates any setback requirements and since that lot which is currently under construction for a garage should have actually met current RA setbacks of 50 feet, it raises doubt about the zoning approval for lot 5. Vice Chairman Perry asked Mr. Mitchell, attorney for the BZA, which would have precedence, a deed or a plat. Mr. Mitchell said he hesitates to talk on something he hasn't been able to research. However, it seems to Mr. Mitchell that the interpretation is based on Section 165-152 of the Zoning Ordinance, which talks about legally non -conforming lots of record. So the current setbacks for the particular zoning district in question are to be applied for all lots unless the most recently legally approved and recorded plat of the property clearly depicts all appropriate terminology and numeric information for different setbacks. Vice Chairman Perry asked Mr. Mitchell if what he is saying is that the plat supercedes the deed and Mr. Mitchell responded that it seems to him that would be the case. Mr. Cheran stated that would be the case, but with the plat running with the deed, that was the determination of the Zoning Administrator because it was platted in 1966. Mr. Mitchell stated if that is the issue, his opinion would be that the plat would control. Vice Chairman Perry asked what if there were no setbacks denoted on the plat. Mr. Cheran stated, on the plat, no; but running with the deed, it does call out those lots. Mr. Rinker asked, if the deed and the plat are recorded together, aren't they coupled together as two documents making one? Mr. Mitchell stated that sometimes they are and sometimes they aren't. Mr. Cheran answered Mr. Rinker that in this case, yes, they did run with it. Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page1275 Mr. Mitchell stated that the County approves the plat, the County does not approve the attached document, the deed. Mr. Rinker said that the deed is taken from an approved plat. Mr. Mitchell said that seems to be the issue here, as to whether or not the deed reflects what's on the plat, or reflects more or different than what's on the plat. Ms. McDonough said there's nothing on the plat. Mr. Mitchell stated that's what the ordinance says, and the ordinance refers to the plat. Chairman Catlett thanked Mr. Mitchell. Chairman Catlett stated that she feels it's important that the Board recognizes that a number of issues were brought up by the applicant which this Board has no control over, such as the land locked lot, the garage being built on B4, etc. The only thing that the Board is here to do today is to determine whether the Zoning Administrator made the correct decision in issuing the building permit for lot 5. She further stated that while the other issues may be important to the applicant, they are not issues that are under the control of the Board of Zoning Appeals. Chairman Catlett asked if there is anyone else present who wanted to speak in favor of this appeal and there was no response. Chairman Catlett then asked if anyone was present to speak against the appeal. Mr. Shifflett approached the podium and stated that he owns lot 5. He stated that Mr. Cheran has pretty much laid out all the information. The deed does show a 10 foot setback on the sides and the deed also does call for a 50 foot setback from the front. He submitted for and was issued a building permit by Frederick County and at this point, the house is well along on this lot. He did this based on doing the research and checking the covenants of the subdivision and the covenants do read as spoken, 10 feet on the sides and 50 feet from the front. The house is more than 10 feet; it's between approximately 16 and 17 feet at the closest point. Chairman Catlett asked if there is anyone else present to speak on this appeal and there was no response. Chairman Catlett closed the public portion of the hearing. DISCUSSION Mr. Rinker had some comments about Ms. McDonough's issues. He stated that RA covers a large part of the County and this subdivision was put in before we had zoning requirements, so it's still in a RA area even though it's more residential. As far as being here instead of Civil Court, this is the process to get to Civil Court; the BZA is an intermediary before you get to that point. Concerning the drainfield, to get the health permit they have to have a certain amount of reserve in that drainfield for expansion if necessary. Concerning a future drive way, Mr. Rinker would hope that would be done on a right-of-way on the other piece of property instead of the property we're talking about. And land locked lots are really immaterial to this consideration. Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1276 Chairman Catlett asked Mr. Cheran if he stated that the deed was recorded along with the plat of the subdivision, and Mr. Cheran responded that is correct. She further asked in any other plat that is recorded today, if the deed is more restrictive, you would still go with the plat according to the RA setbacks at this time. Mr. Cheran stated that is correct, and for the record, if it's today, because we do have performance zoning, the Zoning Administrator would review all plats in the County that come through that are applied for and if there's any issues, they're rejected and have to be re -submitted. Mr. Mitchell stated that in review, it seems that the ordinance refers to what's on the plat. He thinks that would control, but he would point out, this is before you want an appeal of an administrative decision. If in fact different setbacks apply, and those setbacks would make the property unusable or unbuildable and constitute a hardship, the owner of the property would be eligible for a variance. Mr. Shenk made a motion to affirm the decision of the Zoning Administrator. Mr. Rinker seconded the motion and it passed by a majority vote. PUBLIC HEARING Variance Application #02-05 of High View One, L.L.C., to request variances of side yard setback requirements for each of the following parcels: Identification Numbers 60A-2B-A-2 through 26, 28 through 30, 33 through 38; 60A-lC-B-1 through 8, 10 through 16, 20 through 24, 27 through 35, 37 through 48; 60A-ID-B-1, 6 through 9, 13, 18 through 29; 60A-1E-B-1 through 25. Further, High View One, L.L.C., requests a variance of the rear yard setback requirements for each of the following parcels: Identification Numbers 60A-2B-A-2 through 26, 28 through 30,33 through 38; 60A-lC-B-1 through 8,10 through 16, 20 through 24, 27 through 35, 37 through 48; 60A-ID-B-1, 6 through 9, 13, 18 through 29; 60A-1E-13-1 through 25. These properties are located 7.5 miles west of Winchester in Highview Manor Subdivision, on the northwest side of Wardensville Grade (Route 608) and south of Glen Ridge Road, in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Chairman Catlett asked Mr. Mitchell to step forward and give the Board members a history on this application. Mr. Mitchell stated that because this involves a bit of an unusual case with some legal history, it is appropriate to go over that and put it on the record. This is a case of the approval of a 1962 subdivision that involved 170 some lots. Of course, that was before a Zoning Ordinance had even been adopted in Frederick County, the first ordinance being adopted in 1967. Therefore, there were no zoning ordinance setbacks that existed in 1962. Little development occurred in this subdivision in the 40 plus years since the plat has been recorded. A few of the lots were sold, a few houses have been built upon. By virtue of Section 165-152 of the Zoning Ordinance, all of the lots are made lots which are legally non- conforming lots of record; which means as legal lots they can be used and built upon in their configuration. However, that same ordinance section says that those legally non -conforming lots, the current setbacks in the ordinance apply. High View One, LLC, which is the applicant, purchased 100 plus lots in 2003 and after doing that, it submitted to the County some proposed boundary line adjustment plats. The Subdivision Administrator ruled at that time that the current side and rear setbacks applied to the lots and must be shown on the plats. With respect to the front, this is a situation similar to the one talked about in Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1277 the last case in that the plats which were recorded in 1962 showed the front setbacks. Therefore, they are vested, but the front setbacks are established by the plat that was recorded in 1962. The 1962 plat did not show side yard setbacks or rear setbacks. Mr. Mitchell further stated that the Subdivision Administrator said that current setbacks would apply and they had to be shown on these boundary line adjustments plats. High View One contended that it had vested rights by virtue of the 1962 approved subdivision which would preclude the application of current setbacks. In effect, it was saying that there weren't any side or rear setbacks that could be applied to this property and the lots in this subdivision. High View One filed suit against the County on that vested rights issue, asking the Court to declare that High View One was vested so as to preclude the application of the setbacks. While that case was pending, High View One submitted to this Board of Zoning Appeals a blanket variance application which asked this Board to grant blanket side and rear variances to all of the lots, asking for uniform 10 foot variances resulting in 10 foot side setbacks and 25 foot rear setbacks. This Board denied that blanket variance application, finding there was insufficient information submitted with respect to each individual lot for this Board to make a determination as to each individual lot what variance was needed in order to alleviate a hardship. High View One appealed that decision to the Circuit Court regarding the denial of that blanket variance application. Upon hearing all the issues in the case, the Circuit Court ruled in the County's favor on both issues. The Court found that on the vested rights issue, the High View One did not have vested rights so as to preclude the application of current side and rear setbacks to the property. High View One has appealed that ruling to the Supreme Court of Virginia and that case is now pending. On the appeal of the BZA decision which denied the blanket variance application, the Circuit Court affirmed the decision of the BZA and High View One has not appealed that decision. In the course of the proceedings in the Circuit Court on those two issues, it was recognized that the application of current setbacks to the lots as platted in 1962 would render the lots unbuildable and that High View One could be eligible for variances to alleviate that hardship. It was also recognized that this represented an unusual situation because of the large number of lots which have been recognized as legal non -conforming lots by the County. In response to these circumstances and discussions with the Circuit Court, the County told the Circuit Court that if High View One elected to apply again for variances, it could, as it had done before, submit a single application for all the lots in the subdivision and since it was not practical to know the precise house plan that purchasers of the lot would use for each lot, the applicant could file a variance application using a sample footprint for each lot. The County further advised the Court that since the sample house footprint may not be in the exact location that the ultimate purchaser would use, the ultimate house location could vary laterally just so that any side yard variances granted by the Board of Zoning Appeals in their total would not be exceeded. High View One subsequently filed another variance application. The initial application which they filed recently showed sample house footprints but did not show distances from the exterior walls of the sample footprint to the exterior lot lines. It also asked for uniform variances throughout the subdivision, not variances tailored to each specific lot. That application was not accepted for filing. Subsequently, the applicant has revised its application to meet the applicable requirements as to what is necessary and proper and required to be on the plat in order for this Board to be able to properly consider a variance application. Given the house location as indicated by the sample house footprint, your analysis for determining a variance is the same as in any other case. That is, the threshold question for you to determine is whether or not the application of the current side and rear yard setbacks would render the lot unbuildable or unusable, so as to constitute a hardship that meets the requirements of the ordinance in the code. The side setbacks under the current ordinance for the RA district are 50 feet side and rear. These lots being of the size they are, that would in effect render the lots to be unbuildable. If you make that initial determination with respect to the lot, then your duty is to tailor a variance to alleviate the hardship, but only enough to alleviate the hardship. Staff has put together for you and discussed this with you at your Frederick Co. Board of Zoning Appeals 1278 Minutes of February 15, 2005 Minute Book Page last meeting, exhibits Al through A4 in which they've gone through and for each lot have taken a sample house footprint to determine the distances to the side and rear property lines, to indicate for you what variance would be necessary to alleviate the hardship given that sample footprint. Mr. Mitchell further stated that as sewage disposal systems have not been located on the property, it was impractical under the circumstances to locate it on 100 plus lots prior to filing this application. Any variance that you would grant with respect to these would be conditioned upon approval by the Virginia Department of Health of a sewer system to serve each lot before the variances would apply. Mr. Mitchell feels it's important that the Board and the public understand what the scope of what the BZA's authority is with respect to this matter. What is before you is a variance application that involves only side and rear yard setback variances. If the application meets the requirements of hardship, in other words that the application of the current setbacks would render the lots unbuildable, then you must grant a variance to alleviate that hardship, and that is the limit of your authority. The Board has no authority to say that this is too many houses in this area and we're not going to approve it to keep you from building the houses. That's not within the scope of the authority of this Board. You're only deciding what the rear and side setbacks would be in order to alleviate the hardship if you find that hardship to exist. It should also be mentioned and noted that granting these variances does not give ultimate approval for development of this property. There are still issues of sewer systems to serve each individual lot that have to be approved; the building permit brings into play the building code, land disturbance permits, drainage and things of that nature. Those are things that are not before you. The sole thing before you is 1): does a hardship exist? And 2): what variances, if any, should be granted in order to alleviate those hardships? Vice Chairman Perry asked if anyone has run an average to see what the minimum distance between two sample houses on two lots would be. Mr. Mitchell stated it was stipulated that the minimum setback would have to be at least 10 feet, so it would be 20 feet. And that's if the 10 feet butted up against each other. Mr. Rinker asked if there is a minimum rear setback. Mr. Mitchell stated that he did not think there is any variance requested that would reduce the rear setback to less than 50 feet, except maybe one or two lots. The only reason the variance is needed to get it down to 50 feet is because of the rule that says that if the adjoining property is agricultural, the setback is 100 feet. Vice Chairman Perry asked if the bottom line of this variance request as it's presented would be simply to simplify the variance request process per lot. Mr. Mitchell responded that he thinks so, but the analysis that you're using on this is not any different than the analysis that you use on any other application. Chairman Catlett asked for comments from the staff. Mr. Cheran read into the record the following: The reason for this variance request is due to the fact that the current side and rear setbacks render these existing parcels unusable. The current side and rear setbacks are significantly larger than the side and rear setbacks that were in effect at the time of the creation of these lots. The effect of the setbacks of the current zoning ordinance as applied without this variance would interfere with any reasonable uses of the property as a whole. The property is located 7.5 miles west of Winchester in the High View Manor Subdivision on the northeast side of Wardensville Grade (Route 608), in the Back Creek Magisterial District. The properties are currently zoned RA (Rural Areas) and the land use is vacant. The adjoining properties are zoned RA (Rural Areas) and the land use is vacant, agriculture and residential respectively. The subdivision known as High View One was created in 1962, as noted by the Frederick Co. Board of Zoning Appeals 1279 Minutes of February 15, 2005 Minute Book Page recorded deed and plat in the agenda. The recorded deed and plats do not have side and rear setback lines assigned to them. The current zoning ordinance for property in the RA zoning district abutting lots that are residential use are 60 feet from the front, and 50 feet from the rear and sides. The ordinance requires a 100 foot setback from adjoining properties primarily used for agricultural purposes. The applicant is seeking a variance of the current RA zoning requirements on the sides and rear of the properties on the four charts, exhibits 1 A — 4A, shown in the agenda. It appears that this variance request meets the intent of the Code of Virginia, Section 15.2-2309 (2) due to the fact that it would be an undue hardship as a result of the zoning ordinance requirements. Mr. Cheran stated that Mr. Thomas Lawson is representing the applicant and the surveyor who set this up, Mr. Scott Marsh, are here to answer any questions. Mr. Rinker stated that on the application, number 11— describe the variance sought — the last lines state that the side yard will not be less than 30 feet total and reduce the rear setback to 25 feet. Also,, number 8 on block B, is down to 10 and he thinks the rest of them are 25 to 50, so we are in essence doing rear setbacks as well. Mr. Cheran explained that some of the setbacks are for lots that are a little different. For example, on lot 2 they're requesting a variance of 13 feet and the resulting setback is 37 feet, the right is 22 feet and the resulting would be 28 feet, the combined setbacks would be 35 feet. They're not requesting any setbacks on some of the lots and some are going to be a little different. Vice Chairman Perry asked if one or two of these lots or more become not eligible for a building permit because of health permit reasons and the owners elected to make a boundary line adjustment and take two lots side by side and make one lot out it, how would the variance then affect that combined lot? Mr. Mitchell responded that the variances that you grant will only affect the lots in the present configuration. Mr. Ty Lawson approached the podium. Mr. Lawson stated to follow up on a couple of the questions, and Scott Marsh can explain it better than he can about the sides, it's a composite and per the agreement that was reached in front of Judge Prosser it's a sliding setback on the sides. The total is approximately 30, but in response to Mr. Perry's question, under any circumstance it could get no smaller than 20 from the adjoining house if you had the two tens together. And in response to Mr. Rinker's question, Mr. Lawson is not sure that Mr. Rinker was reading from number 11, and he will tell you there are several submissions as they worked with the County and the last one showed that it would reduce rear setbacks to 25 feet. Some of the earlier drafts did show a 30 and as Scott Marsh worked through it, there are some lots you just couldn't fit them in, and they made the correction to make it no fewer than 25 for those specific lots and the charts should so reflect. Mr. Lawson stated that he greatly appreciates Mr. Mitchell's history of this. There are a total of 176 lots, with a total of nine houses already within the subdivision, and High View One owns 116 of those lots. When the subdivision was approved in 1962, there was a deed of dedication that was submitted with restrictive covenants that did have side and rear and front setbacks, but it only had in the plat the front setbacks. There is a request in front of you for variances for only 114 lots, there are two that even with reduced variances, we cannot get a house site on them. Mr. Lawson submitted to the Secretary for the record transcripts from the various proceedings in front of Judge Prosser. Mr. Marsh was hired to work with Staff to work with a plat and is here to explain why some rear setbacks are what they are. The whole idea is to create a building envelope. The reason they can't be exact and the reason why the Judge thought it wise to allow them to file as they have, is simply because they don't know what the prospective purchasers are going to want, where they're going to want these houses on the lots and the reason they Frederick Co. Board of Zoning Appeals 1280 Minutes of February 15, 2005 Minute Book Page have representative squares of the dimensions of these homes, is you don't know where a bay is going to be, where a bump -out room is going to be and so on; but they're committing that it will no greater than X. The Judge allowed them not to put the drainfields on the plats; obviously the amount of work and money that would have gone into locating a drainfield only then to be told that you're not going to be granted a variance, would be futile and very costly. Mr. Lawson stated that they agree with what Mr. Mr. Mitchell said is what they're asking for is the variance to allow for a building envelope. Having said that, everything from this point forward, assuming the variance is granted, would be subject to the building permit process and everything that goes with it and certainly, the science of locating suitable drainfields and that they be approved by the Health Department is recognized. Mr. Scott Marsh approached the podium. Mr. Marsh stated that this is an interesting survey problem only in the sense that we have to try to forecast for you in this application how they would put a house on a lot. Their intent is to show the realistic house types that they can fit on a lot and define a space and a setback and try to create minimums so that everyone is comfortable with those, but also something that gives them the ability to do the design. It took quite a while to actually position what you see here. The setbacks are controlled, particularly the rears, based on the use so if the adjacent land use is agriculture, the setback is 100 feet. If the use of the adj acent land is residential, then the setback is 50 feet. They tried in all cases to use the 50 foot margin and many of the lots, the use is residential, and that's why on your chart, you'll see they're not asking for a rear setback. In the areas where the rear buts up to agricultural land, that's where they're trying to get a variance to a 50 foot rear yard setback. The reason item 11 addresses 25 foot rear is because he wanted to make it clear in the application that yes, there are a few lots that 50 feet will not work. When these subdivisions were done in the 60's, they would do them in sections and then they'd start re -numbering the lots over again as opposed to lot 1 through 116. It took a lot of time to figure out how to put this chart together, how each lot fit and how the setbacks work so there are some lots that they're asking to reduce the setback to 25 feet whereas it would be 50 feet based on today's ordinance. There are some lots that are not buildable: lot 1 they're not asking for any variance at all; and lot 37, they're not asking for a variance. Their intent is for the chart and the plat to be the governing factor for this variance application. They derived the minimum of 30 feet combined side yard setback from the current RA ordinance for two -acre lots. Even though these lots are smaller than two acres, they felt like that is a distance they could live with, and when they start positioning the houses on there, you'll see most of these will fit on a lot and the combination of the left and the right side is in excess of 30. They've tried to be realistic about what they're asking for. Chairman Catlett asked if anyone is present to speak in favor of the variance request. No one responded. Chairman Catlett asked if anyone is present to speak against the request. Ms. Cybil Kraft approached the podium. Ms. Kraft stated that in 1962 these lots, about one third of an acre each, were zoned recreational and back in 1990, they were changed to rural. The Board previously made a decision that they were not going to give a variance on the total number of lots they wanted to build on, that there were enough lots that they could combine to make a buildable lot. Route 608 is a narrow, curvy road and it will not uphold the extra traffic. Ms. Kraft feels that this property can be built upon, but anything under two acres should not be allowed. They moved there 26 years ago and it's been peaceful and quiet. Ms. Kraft feels that 116 lots are a lot for variance. Most of the lots there do not perk and there is only one way in and out of the subdivision. Chairman Catlett stated that this Board is not here to determine these issues. Ms. Kraft knows it's inevitable that the property will be built on and developed, but she thinks we should consider that this be done on a lot that is more than one third of an Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1281 acre. Chairman Catlett asked if anyone else is present to speak against the request. Mr. Louis Kenney approached the podium. Mr. Kenney stated that he is not for or against the request, but he is against the blanket variance for all the lots. Chairman Catlett asked if there is anyone else present to speak against the request. Ms. Ethel Pasqual approached the podium. Her family has owned land there since the 60's. Ms. Pasqual lives in Alexandria, but she went out to the site today. She's asking that we seek a compromise because she has two lots, number 25 and 26, which are buildable lots. The ones adjacent to her, number 24 and 27, are also buildable lots. Ms. Pasqual requests that they leave out the lots on either side of her. Vice Chairman Perry asked Mr. Mitchell, should they grant this variance would they be within the spirit of the code concerning hardships on lots by doing it in a blanket situation as opposed to an individual? Mr. Mitchell responded no, and he suggests that when the application came into you two years ago, that was a blanket application because they were asking for across the board variances of 10 feet on the side and 25 feet in the rear. This is not a blanket variance, although that's not a legal term, in the sense the only thing different here is that it's all being presented to you at one time. You're looking at each lot individually; it's not a blanket across the board. Chairman Catlett asked if anyone else is present to speak against the request. Ms. Pasqual asked what the setbacks are for her property and Mr. Cheran responded that the only setbacks in question today are the ones being discussed in the High View One variance request. Mr. Mitchell told her that if and when she builds on her lots, she will probably need to apply for a variance. Mr. Rinker asked if the roads are state maintained. Mr. Cheran stated that he did not believe these roads are not state maintained. Mr. Lawson stated that they are private parcels and are owned by High View One. Chairman Catlett stated that there have been a lot of points addressed and there is only so much that's within the scope of the authority of this Board, which does not include the subdivision and the size of the lots or perk permits. As Mr. Mitchell pointed out, the first question before us is to determine whether or not a hardship exists for these lots which were approved in 1962 not being unbuildable if they apply current zoning restrictions. If the Board decides this is the case, then the Board needs to decide whether or not to approve these variance requests as have been detailed on exhibits Al through A4, for each of these lots. Mr. Rinker made the following motion in Appeal Application 02-05: Whereas, the High View subdivision plat was approved in 1962; and Whereas 165-152 of the Zoning Ordinance establishes legal nori-conforming lot status on the lots as platted on the 1962 subdivision plat; and Frederick Co. Board of Zoning Appeals 1282 Minutes of February 15, 2005 Minute Book Page Whereas; pursuant to § 165-152 the front setbacks on the lots are vested by virtue of the front setbacks having been shown on the 1962 subdivision plat; and Whereas, the subdivision has been the subject of litigation in the Circuit Court of Frederick County between the County and the owner, in which case the Court has ruled that the subdivision does not have vested rights as to preclude the application of current side and rear setback regulations under the Zoning Ordinance; and Whereas, the Board finds that the application of the current side setback regulations for the RA zoning district to each of the platted lots in the subdivision would interfere with all reasonable beneficial use of the lot and meets the criteria of a hardship under the Frederick County Zoning Ordinance and the Code of Virginia; and Whereas, the Board finds that the application of the current rear setback regulations for the RA zoning district to certain of the platted lots in the subdivision would interfere with all reasonable beneficial use of such lots and meets the criteria of a hardship under the Frederick County Zoning Ordinance and the Code of Virginia as to such lots; and Whereas, in the aforesaid litigation the County has advised the Court that in recognition of the fact that the subdivision was approved in 1962 and that the applicant owns over one hundred lots in the subdivision, the applicant may file a single variance application for all lots and may show on each lot a footprint of a sample dwelling, and this application has been filed on that basis; and Whereas, the Board having found that a hardship exists as to the application of current side setback regulations for each of the platted lots in the subdivision and that a hardship exists as to the application of current rear setback regulations for certain platted lots in the subdivision, the Board's duty is to tailor variances so that variances are approved only to the extent necessary to alleviate the hardship with respect to each lot. Therefore, the Board hereby approves the side and rear setback variances for lots in Block B, C, D and E of High View subdivision as set for on exhibits Al, A2, A3 and A4 respectively, which exhibits are hereby made a part of this motion and shall be appended to the minutes of this meeting. The variances hereby approved are expressly subject to the following conditions and/or provisions: 1. The approval of the variances for each lot is conditioned upon the owner of the lot obtaining, prior to the issuance of a building permit for a dwelling on the lot, Virginia Department of Health approval of a sanitary sewer system to serve such lot. 2. The variances hereby approved for each lot shall apply only to the lot in the configuration shown on the plat approved in 1962, and will not transfer to any subsequent consolidation, boundary line adjustment, or other reconfiguration of the lot. 3. With respect to the side setback variances hereby granted for each lot, the Frederick Co. Board of Zoning Appeals 1283 Minutes of February 15, 2005 Minute Book Page locations of a dwelling on the lot may be varied from the sample dwelling footprint shown on the plats submitted with the application, provided that the total of the side setbacks for each lot shall not be less than the Combined Resulting Side Setback for each such lot as shown on exhibits Al, A2, A3, and A4, and provided, further, that in no event shall a side setback on any lot be less than ten (10) feet. as requested. Mr. Perry seconded the motion and the variance requests were approved unanimously NIs ID 7 Chairman Catlett asked Mr. Cheran the cut off date for the next meeting. Mr. Cheran responded that Friday, February 18, 2005 is the cut off. Mr. Cheran stated that the Legislative Session in Richmond is looking at variances again. "Cochran" is still the law of the land right now until the Legislative Session gets through, there may be some variations to that. It looks like the section of the code is going to stay the same for hardships, but there may be some tweaking that could happen in terms of cosmetics on structures. As soon as Mr. Cheran receives the revised section, there will probably be a session with Mr. Mitchell to talk about it. Chairman Catlett stated that she received a letter regarding Virginia Certified Board of Zoning Appeals Program, with training to be from March 31 st to April I st in Richmond. Chairman Catlett stated if anyone is interested, she has the particular information. Mr. Cheran encouraged new members especially to attend this program. As there were no other items or new business to be discussed, the meeting adjourned at 5:10 p.m. by unanimous vote. Respectfully submitted, Theresa B. Catlett, Chairman Bev Dellinger, Secretary Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1284 HIGH VIEW MANOR TM 60A-2B-A BLOCK B LOT NO. LEFTSIDE LEFTSIDE RIGHTSIDE RIGHTSIDE COMBINED REAR REAR VARIANCE REQUESTED RESULTING SETBACK VARIANCE REQUESTED RESULTING SETBACK RESULTING SIDE SETBACKS VARIANCE REQUESTED RESULTING SETBACK 2 13' 37' 22' 28' 35' n/a 3 1 15' 35' 34' 16' 49' n/a 4 35' 15' 11' 39' 46' n/a 5 10' 40' 20' 30' 30' n/a 6 10' 40' 20' 30' 30' n/a 7 10' 40' 20' 30' 30' n/a 8 30' 20' 10' 40' 40' 40' 10' 9 17' 33' 25' 25' 42' 25' 25' 10 12' 38' 22' 28' 34' n/a 11 12' 38' 23' 27' 35' n/a 12 12' 38' 23' 27' 35' n/a 13 23' 27' 14' 36' 37' n/a 14 20' 30' 10' 40' 30' n/a 15 30' 20' 11' 39' 61' 25' 25' 16 10' 40' 20' 30' 30' n/a 17 10' 40' 20' 30' 30' n/a 18 10' 40' 20' 30' 30' 50' 50' 19 10' 40' 20' 30' 30' 50' 50' 20 10' 40' 12' 38' 22' 50' 50' 21 23' 27' 12' 38' 35' 50' 50' 22 12' 38' 23' 27' 35' 50' 50' 23 13' 37' 22' 28' 35' 50' 50' 24 13' 37' 22' 28' 35' 50' 50' 25 13' 37' 22' 28' 35' 50' 50' 26 13' 37' 22' 28' 35' n/a 28 12' 38' 23' 27' 35' n/a 29 12' 38' 23' 27' 35' n/a 30 13' 37' 22' 28' 35' n/a 33 13' 37' 22' 28' 35' n/a 34 13' 37' 22' 28' 35' n/a 35 13' 37' 22' 28' 35' n/a 36 32' 18' 11' 39' 43' n/a 38 20' 30' 10' 1 40' 30' n/a EXHIBIT "AI" HIGH VIEW MANOR TM 60AA C-B BLOCK C LOT NO. LEFTSIDE LEFTSIDE RIGHTSIDE RIGHTSIDE COMBINED REAR REAR VARIANCE REQUESTED RESULTING SETBACK VARIANCE REQUESTED RESULTING SETBACK RESULTING SIDE SETBACKS VARIANCE REQUESTED RESULTING SETBACK 1 24' 26' 13' 37' 37' 25' 25' 2 13' 37' 22' 28' 35' n/a 3 13' 37' 22' 28' 35' n/a 4 13' 37' 22' 28' 35' n/a 5 22' 28' 13' 37' 35' n/a 6 13' 37' 22' 28' 35' n/a 7 13' 37' 22' 28' 35' n/a 8 13' 37' 22' 28' 35' n/a 10 12' 38' 23' 27' 35' 50' 50' 11 12' 38' 23' 27' 35' 50' 50' 12 13' 37' 22' 28' 35' 50' 50' 13 12' 38' 23' 27' 35' 50' 50' 14 13' 37' 22' 28' 35' 50' 50' 15 12' 38' 23' 27' 35' n/a 16 13' 37' 22' 28' 35' n/a 20 13' 37' 22' 28' 35' n/a 21 13' 37' 22' 28' 35' n/a 22 13' 37' 22' 28' 35' n/a 23 12' 38' 23' 27' 35' n/a 24 13' 37' 22' 28' 35' n/a 27 12' 38' 22' 28' 34' n/a 28 17' 33' 24' 26' 41' n/a 29 10' 40' 20' 30' 30' 50' 50' 30 10' 40' 20' 30' 30' 50' 50' 31 10' 40' 20' 30' 30' 50' 50' 32 10' 40' 20' 30' 30' 50' 50' 33 16' 34' 30' 20' 46' 50' 50' 34 12' 38' 24' 26' 36' 50' 50' 35 20' 30' 12' 38' 32' 50' 50' 37 10' 40' 20' 30' 30' 50' 50' 38 10' 40' 20' 30' 30' 50' 50' 40 10' 40' 20' 30' 30' 50' 50' 41 20' 30' 10' 40' 30' 50' 50' 42 10' 40' 20' 30' 30' 50' 50' 43 10' 40' 20' 30' 30' 50' 50' 44 10' 40' 21' 29' 31' 50' 50' 45 10' 40' 20' 30' 30' 50' 50' 46 10' 40' 20' . 30' 30' 50' 50' 47 10' 40' 20' 30' 30' 50' 50' 48 10' 40' 20' 30' 30' 50' 50' EXHIBIT "A2" HIGH VIEW MANOR TM 6OA-1 D-B BLOCK D LOT NO. LEFTSIDE LEFTSIDE RIGHTSIDE RIGHTSIDE COMBINED REAR REAR VARIANCE REQUESTED RESULTING SETBACK VARIANCE REQUESTED RESULTING SETBACK RESULTING SIDE SETBACKS VARIANCE REQUESTED RESULTING SETBACK 1 20' 30' 39' 21' 59' n/a 6 12' 38' 23' 27' 35' n/a 7 12' 38' 23' 27' 35' n/a 8 12' 38' 23' 27' 35' n/a 9 12' 38' 23' 27' 35' n/a 13 13' 37' 22' 28' 35' n/a 18 22' 28' 13' 37' 35' n/a 19 12' 38' 23' 27' 35' n/a 20 13' 37' 22' 28' 35' n/a 21 12' 38' 23' 27' 35' n/a 22 13' 37' 22' 28' 35' n/a 23 12' 38' 23' 27' 35' n/a 24 23' 27' 12' 38' 35' n/a 25 10' 40' 21' 29' 31' n/a 26 11' 39' 21' 29' 32' n/a 27 22' 28' 12' 38' 34' n/a 28 12' 38' 23 27' 35' n/a 29 30' 20' 10' 49' 40' n/a EXHIBIT "AY HIGH VIEW MANOR TM 60A-1 E-B BLOCK E LOT NO. 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Mi eO-L-L, of uc p10m,W lBI \ L01 �O b h Lor Js `• � N �a [Ol Jr 9$ for lr � ~ Lorm IrSm' ma ICRi ,, xo v.rc an(r b3R pYWIW Lotrz w - us( R�aa a n 0 / ♦ aw. w9 a } a pq O c 4 .Q� " ♦ O 9t�� C Lor 4) a for). a � 6 `"Or]J > 10144 dp Lo a e � ♦ tr¢ Lo Is LOr II a O d n �'4 tor dN Lor t, O dp � a LM a LOL o 1 a l or)o $ � for Is LAWSON AND SILEK, P.L.C. 160 EXETER DRIVE, SUITE 103 POST OFFICE Box 2740 WINCHESTER, VA 22604 TELEPHONE: (540) 665-0050 FACSIMILE: (540) 722-4051 February 15, 2005 Ms. Theresa B. Catlett, Chairman Board of Zoning Appeals 107 N. Kent Street Winchester, VA 22601 THOMAS MOORE LAWSON • TLAWSON(d%LSPLC.COM Re: High View One, LLC Our File No. 641.001 VIA HAND DELIVERY Dear Ms. Chairman: Enclosed for the BZA's records are copies of transcripts of hearings in front of Judge Prosser in High. View One LLC v. Frederick County Board of Zoning Appeals, et al., Chancery No. 03-415 and High View One, LLC v. Frederick County Board of Supervisors, et al., Chancery No. 04-428. High View One, LLC's respectfully requests that the BZA provide its decision in this matter in written form, with sufficient detail to allow for judicial review, if necessary. Thank you for your continued assistance and cooperation. If you should have any questions, please do not hesitate to give me a call. Very TML:cam Enclosure cc: High View One, LLC Lawson FRONT ROYAL ADDRESS: POST OFFICE BOX 602, FRONT ROYAL, VIRGINIA 22630, TELEPHONE: (540) 635-9415, FACSIN ILE: (540) 635-9421,E-.AIA1L: SILEK3@LYNXCONNF.CT.CODI FAIRFAX ADDRESS: 10805 MAIN STREET, SUITE 200, FAIRFAX, VIRGINIA 22030, TELEPHONE: (703) 352-2615, FACSIMILE: (703) 352-4190, E-NAIL: TIIONASO.LAWSON Q VERIZON.NET June 16, 2004 Highview Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 , Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454f-969c-Oa310bfda499 T � y June 16, 2004 Highview Page 2 1 ***** 1 2 Appearances: 2 3 On Behalf of the Plaintiff- 4 THOMAS M. LAWSON, ESQUIRE Lawson & Silek 4 5 160 Exeter Drive 5 Suite 103 6 6 Winchester, Virginia 22603 (540) 665-0050 7 7 8 On Behalf of the County: 9 8 ROBERT T. MITCHELL, JR., ESQUIRE 10 9 9 East Boscawen Street 11 Winchester, Virginia 22603 12 10 (540) 662-3200 13 11 ***** 14 12 13 15 14 16 15 17 16 17 18 18 19 19 20 20 21 21 22 22 Page 3 1 PROCEEDINGS 1 2 (Whereupon, the court reporter was 2 3 duly sworn by Judge Prosser.) 3 4 THE COURT: Mr. Mitchell, 4 5 Mr. Ambrogi, the case we had this morning drew a 5 6 little longer. 6 7 MR. AMBROGI: Oh, I knew that. 7 8 THE COURT: And that's not unusual. 8 9 MR. AMBROGI: Not unusual, at all. 9 10 THE COURT: Mr. Mitchell and 10 11 Mr. Lawson had one at eleven. If you don't mind 11 12 them sliding in here first -- 12 13 MR. AMBROGI: Not at all. 13 14 THE COURT: -- it shouldn't take a 14 15 whole lot of time. But then again, I don't know 15 16 about these things sometimes. 16 17 (Laughter) 17 18 THE COURT: All right. Where do we 18 19 stand in this case? My recollection was that we 19 20 started taking testimony, and we took about an 20 21 hour and a half or so of -- was it Mr. Cosheen? 21 22 MR. MITCHELL: Yes. 22 2 (Pages 2 to 5) Page 4 THE COURT: And then, as sometimes happens, a mild departure from the strict rule of evidence ensued, and a big dialogue took place. And then we recessed the case and you all indicated that you thought I could decide it on the facts that had been elicited to that point. And then we came back a couple of weeks ago, and you all indicated that you might be able to resolve it, you weren't sure, and put it off until today for a decision. Is there a desire for anybody else to put on any other evidence? Mr. Mitchell? MR. MITCHELL: Not from us, Your Honor, because we understood that the Court was looking at the question of the first element under the Vested Rights Statute, as a matter of law. THE COURT: Right. MR. MITCHELL: And then looking at the BZA decision as a matter, in terms of the BZA record. Page 5 111 THE COURT: Right. Mr. Lawson? MR. LAWSON: Your Honor, I agree with the posture, in terms of where we are. I would proffer that significant efforts have been made to follow your instruction to try to settle it. I think we got close but, for whatever reason, we are not there. THE COURT: Okay. Does anybody want to make any final comments? I don't want to foreclose anybody from further argument. Mr. Lawson? MR, LAWSON: I think we are ready for Your Honor's decision. THE COURT: All right. MR. LAWSON: I will point out that we have a couple of cases that were taken under advisement or stayed until after a decision was rendered in this case. THE COURT: Right. MR. LAWSON: But I think all parties Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118. Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com . bb2d9607-81de-454f-969c-Oa310bfda499 June 16, 2004 Highview )2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 0A 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Page 6 would desire a decision. THE COURT: It's a difficult case, from the standpoint that several things seem to conflict. First, it does seem to me that the record would support the fact that this subdivision was properly recorded at a date that predated the existence of the Frederick County Zoning Ordinance. That is correct, is it not, Mr. Lawson? MR. LAWSON: Yes, Your Honor. THE COURT: Mr. Mitchell? MR. MITCHELL: Correct, Your Honor. THE COURT: And the plat on record reflects setback lines on the front, but not the side and rear, I think. It doesn't reflect -- the plat, the picture, the drawing, doesn't reflect all the setback lines -- MR. MITCHELL: Correct. THE COURT: -- that are referred to in the written portion of the Deed of Dedication, Page 7 the Covenants. And the County had relied upon that, to some degree, to draw some distinctions. I don't think that makes any difference. The existence of the instrument was also recorded. And it seems to me when you are searching a title you have a duty to do something besides just look at the pictures, but to read the words. And so I think the words have some meaning. At the same time, it seems to me that all of this was so long ago that the Zoning Ordinances now come into effect, and governs the use of most all real estate in Frederick County. And I can't remember the name of the case, Mr. Mitchell, but a Circuit Court Judge for the City of Alexandria -- MR. MITCHELL: Correct. THE COURT: -- basically interpreted the law in that case to effect a five-year vesting period, in effect. Page 8 1 There was some discussion between 2 Mr. Lawson and Mr. Mitchell, in their various 3 briefs and arguments, about whether that 4 actually does apply, is it a five-year, are you 5 vested forever, are you vested for a limited 6 period of time? 7 It seems to me though, that in the 8 context of this case, that the Board of Zoning 9 Appeals did what they were supposed to do, 10 except the real vice here, was that they wanted 11 to do it on a lot -by -lot, or a case -by -case 12 basis, instead of looking at the one landowner, 13 saying the one landowner owns all these 14 properties, and so I want to make a blanket 15 ruling. ' 16 Now that's what the staff had 17 indicated that they recommended, was that there 18 be a blanket -- is that right, Mr. Lawson, a 19 blanket ruling? 20 MR, LAWSON: They had made a 21 recommendation to approve -- 22 THE COURT: In a blanket fashion? Page 9 1 MR. LAWSON: --the alternative 2 relief, which was to -- we are getting a little 3 far afield here -- not to necessarily 4 grandfather the old ones, but to approve 5 narrower setbacks on the side and rear. 6 THE COURT: And the staff recommended 7 that it be done in bulk, in effect. Is that 8 right, Mr. Mitchell, and the Planning Commission 9 didn't do that, or the Board of Zoning Appeals 10 didn't do that? 11 They said, we want if on a case-by- 12 case basis; is that right? 13 MR. MITCHELL: That's correct. The 14 staff recommended approval of the Variance 15 Application. 16 The Board of Zoning Appeals said that 17 there wasn't sufficient information for them as 18 to any particular lot in which to determine that 19 there was -- 20 THE COURT: And it struck me as though 21 the staff s recommendation was a sound one, and 22 the Board of Zoning Appeals decision was a sound 3 (Pages 6 to 9) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81 de-454-969c-Oa31 Obfda499 June 16, 2004 Highview 1 Page 10 one. 1 2 So this is a case that, there seems to 2 3 me, are good arguments all around. 3 4 And I guess it's for that reason that 4 5 Judge's have to make decisions, because it 5 6 doesn't seem to me it's a slam dunk in any 6 .7 direction. 7 8 I think the fair thing would be for 8 9 the Board of Zoning Appeals to fashion a remedy, 9 10 because I find there, clearly, is a hardship to 10 11 your clients, Mr. Lawson, and they are entitled 11 12 to relief from the BZA. 12 13 And I understand the BZA's desire to 13 14 do it on a case -by -case basis, but I'm not sure 14 15 that it requires it to be a house -by -house 15 16 basis. 16 17 I think if one landowner owns the 17 18 whole shebang -- and that's what happens here 18 19 -- it seems to me that if that landowner can put 19 20 forth, in a cogent and comprehensive plan, 20 21 consistent with the requirements that the staff 21 22 of the Frederick County Planning Department 22 Page 11 1 finds acceptable, that the BZA can act on more 1 2 than one at one time, which strikes me as being 2 3 the best way to handle this case. 3 4 This is good developable land. It is 4 5 a subdivision that's been in existence for a 5 6 long time. 6 7 It's not one of these things that's 7 8' been put to record back in the fifties, and it's 8 9 just a mountain somewhere, without any roads, or 9 10 trees, or other houses. 10 11 This is, factually, a subdivision, but 11 12 it's outmoded, it's outdated, it doesn't comply, 12 13 in many respects, to what now would be required. 13 14 And I think the BZA does have the 14 15 power to take a look at it. So to that extent, 15 16 Mr. Mitchell, I find in favor of the County, but 16 17 I believe the BZA has the authority to do 17 18 something, other than what they did. 18 19 I think the way they handled it 19 20 imposes a further hardship on Mr. Lawson's 20 21 clients, because I think it's almost impossible 21 22 for him to develop that property on a strict 22 4 (Pages 10 to 13) Page 12 house -by -house or lot -by -lot basis. So I think they do have the authority to say to one landowner, who owns more than one lot, okay, we will approve this, this, this and this. But those plans have to be submitted, Mr. Lawson, in a way in which the BZA can take a look at it and make a determination that they are charged with, by law, to do. I don't find anything wrong with the County's big statement of vested rights; I think that's fine. But I think the matter should be handled and run through the BZA. And I think that, Mr. Lawson, you indicated that your man was probably going to be consolidating, combining, restructuring, redrafting the lots he has, put the lines in different places. I think all he's got to do, if my decision is followed, would be to go ahead and make those plans, and submit them to the BZA, and then approval would be secured, assuming Page 13 everything else is in compliance with the law. Does that make any sense, Mr. Mitchell? MR. MITCHELL: If I'm following Your Honor, I think that -- I think that what needs to be submitted to the BZA -- there was no issue about the BZA. acting on more than one lot at a time. They only THE COURT: There was some discussion that led me to believe that they were reluctant to make any approvals until somebody got out there and had a site plan for each house that was going to be built. And that would make it impossible to sell those lots, especially -- MR. MITCHELL: Well -- THE COURT: —if he's going to combine lots and redraw the boundaries. MR. MITCHELL: It wasn't -- it wasn't necessarily that each lot needed to be a separate application. They were prepared, and Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81 de-454f-969c-Oa310bfda499 June 16, 2004 Highview Page 14 Page 16 1 were only charged one fee for the whole thing. 1 twenty -foot over here. 2 But the information needs to be 2 And I think, you know, if it's -- I 3 submitted on each lot in order for the BZA to be 3 -- 4 able to make a determination of what -- 4 THE COURT: And what if -- 5 THE COURT: And what I'm suggesting is 5 MR. MITCHELL: If it was to go back to 6 that their requirement that he's got to stake 6 the BZA, I think it should be understood that 7 out the place for the house to be built on a 7 that's the information needed to be submitted. 8 particular lot is impossible for him to do, if 8 THE COURT: What if -- I appreciate 9 he is going to be drawing up and having twenty 9 that. And what if they want to change the 3 10 empty lots, and then try to sell them. 10 location of their house? They sell the property 11 There is no way you know who the 11 to Mr. Jones down the road, and Mr. Jones says, 12 people who are going to buy the lots are, and 12 well, I don't want my house there, I want it up A 13 what they are going to do with it, in terms of 13 here on this little knoll? 14 where they want to put a house, what kind of 14 MR. MITCHELL: I don't think it makes 15 house, or any of that stuff. 15 any difference, because the BZA has granted the 16 MR. MITCHELL: Your Honor, I think the 16 variance in the setbacks. It's not locked in to 17 minimum that needs to be submitted -- and this 17 that specific location of the house. 18 is, in effect, what the BZA was saying -- is 18 THE COURT: Well, conceptually, it 19 that for each of the lot, submitted as a group, 19 seems to me that the County is right in its 20 there needs to be a documentation of approval of 20 interpretation of the vested rights argument, 21 Virginia -= Virginia Department of Health's 21 and I think the BZA does have to get involved in 22 approval of a septic system. 22 the process. E Page 15 Page 17 1 And secondly, a plat of the lot which 1 And I think that, for Mr. Lawson's 2 would show the location of that sewer system -- 2 people, it's unrealistic for them to believe 3 THE COURT: And I think that's fine. 3 that they have to comply with the current zoning 4 MR. MITCHELL: And secondly -- 4 setback requirements. 5 THE COURT: The problem is he may not 5 They are going to have to get a 6 be able to show where his sewer system is going 6 variance. 7 to .be because he may not know where he's going 7 And it seems to me that, in order for 8 to put his house. 8 them to do that, they are going to have to 9 MR. MITCHELL: Well, Your Honor, first 9 comply, at least in a general way, with 10 comes the location of the sewer system, because 10 Mr. Mitchell's recommendations about what the 11 that's much harder to locate than the house. 11 BZA is going to require in order to grant the 12 THE COURT: Right. 12 variance. 13 MR. MITCHELL: You locate the sewer 13 Does that make any sense, Mr. Lawson, 14 system and then you locate the house. 14 Mr. Mitchell? 15 Now I think secondly, in this case, 15 MR. LAWSON: If I could ask a couple 16 where we are talking about a lot of lots that 16 of questions. First of all, this issue of a 17 somebody wants to develop, there should be a 17 drain field, that really doesn't apply to what 18 footprint of a sample dwelling which is 18 we are doing, in terms of the setbacks. 19 appropriate in size for the size of the lot. 19 And I think it is somewhat, if it is 20 That would give the BZA the ability to 20 not a blatant red herring, to divert us from j 21 say, okay, we need a seventeen -foot setback over 21 what the real focus here -- 1 )22.- here, and a thirteen -foot over here, and a 22 THE COURT: All he was really saying 5 (Pages 14 to 17) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454-969c-Oa31obfda499 June 16, 2004 Highview Page 18 1 is they need a footprint. 1 2 MR. LAWSON: Okay. 2 3 THE COURT: That's all. 3 4 Is that right, Mr. Mitchell? 4 5 MR. MITCHELL: I think that a septic 5 6 system needs to be located on the lot. When 6 7 plats come to the BZA it comes as a -- it comes 7 8 as a completed plat with the drain -- 8 9 THE COURT: Well, those are the normal 9 10 rules and regulations -- 10 11 MR. MITCHELL: Yeah. 11 12 THE COURT: -- of what is required to 12 13 be submitted. 13 14 MR. MITCHELL: But the problem is, 14 15 Judge, and one of the primary problems here, of 15 16 course, is that they've indicated to the BZA 16 17 that these aren't really the lots we are going 17 18 to build on. 18 19 And so they are asking, in effect, the 19 20 BZA to make almost an advisory -type 20 21 determination on the variance that's not going 21 22 to apply, because the lots are going to be 22 Page 19 1 different. 1 2 Our point is, they come into the BZA 2 3 with lots that they want to build on, the lots 3 4 that they actually want to develop, show us 4 5 where the drain field is, show a footprint of a 5 6 sample house on there, and then that -- by doing 6 7 that you can establish what your hardship is. 7 8 THE COURT: And my ruling is that the 8 9 BZA does have the authority, and the landowner 9 10 would be required to do that, come before the 10 11 BZA. 11 12 Now I don't know about the allegation 12 13 that you are going to have different lots, 13 14 although there was some evidence that you plan 14 15 to combine some lots and redraw the parameters 15 16 and boundaries of other lots; is that right? 16 17 MR. LAWSON: Your Honor, I -- 17 18 MR. MITCHELL: I'm basing that on what 18 19 was in the BZA record, Your Honor. 19 20 MR. LAWSON: I -- 20 21 THE COURT: I understand. 21 22 MR. LAWSON: And that's part of our 22 6 (Pages 18 to 21) Page 20 question. I mean, we are kind of going down a path that we went through, by way of talking settlement -- THE COURT: Well, let me ask you this; what is wrong with just going ahead and figuring out what you want to do, and then run it by the BZA? That's what I'm suggesting has to be done. MR. LAWSON: Because we were told by the County that we can't do what we want to do, because the road network that we've proposed extend or exacerbate a non -conforming use. We've gone to that trouble. We hired two experts to work with the County, in vain, to draw this thing out THE COURT: So you are saying that that goes beyond the parameters of what has been in front of me in this case, because I haven't heard anything about inadequate roads or -- MR. MITCHELL: That's right. We are talking about a different issue that is not a part of this record, Your Honor. THE COURT: Right. MR. LAWSON: Well, we don't want to be in front of you again anymore than you want us in front of you again. THE COURT: Well, I want to try to resolve the problem. I think I've given you some guidance, and the question I have though, is I don't quite understand why this is so difficult to put into practice. Because it seems to me that if you are going to build a house, and you know what the lots are going to look like, why don't you draw a picture, put it in front of the BZA, and get it approved? MR. LAWSON: Well, again, as Mr. Cosheen well testified, this isn't the forties, and we are all building square boxes, and we are going to knock them out at a clip. THE COURT: But doesn't he know what he's going to do? He's got the land.. He bought the lots. It's all there. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454f-969c-Oa310bfda499 June 16, 2004 Highview )2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 22 Doesn't he know which lines he's going to draw? MR. LAWSON: He's going to have different models. In this modern day, most people, like yourself and your neighbor, we want something different. THE COURT: Right. MR. LAWSON: And so one person -- THE COURT: But doesn't he know what the lot sizes look like? That's all you are talking about, lots and setbacks. MR. LAWSON: I think what we are left with, because our other plans are hitting walls, is we are going to actually ask to have the lots that are there, and that were approved way back when in the sixties, to get those confirmed. And I think Your Honor has given some good guidance for that, and we will go forward with those. Let me bring up one thing though that may assist. I assume Your Honor said it, the way I Page 23 heard it, and maybe I misheard it, because it may be an end run to this thing. Your Honor made a determination that not only that thing that was recorded back in the sixties had drawings on a plat, but it also incorporated, and in fact, it was all part of the same instrument, setbacks, side and rear. The County's vesting policy, which is that other case that you put on hold, says we will confirm and allow, forever, plats and documents of record, historic ones, that have certain qualities to them. And that's why the County's position has come up, in terms of it's not on the plat, so the writing doesn't count. Well, if Your Honor is making a determination -- and we've argued this -- you would have to be a really good guesser, back in the sixties, to know how somebody, forty years later, was going to interpret what you were putting in the record. And I think what Your Honor has said Page 24 1 makes common sense. 2 If someone went to the trouble of 3 putting it in writing, putting it in the same 4 instrument, then it ought to be given some 5 dignity forty years hence, because it was 6 recorded and signed off by the Board, et cetera. 7 If that's true, then we may not need 8 to go to the BZA, at all, because those are 9 setback lines, side and rear. And the fronts 10 are drawn -- 11 THE COURT: If you are going to 12 restructure your lots and combine them, you are 13 going to have to do something; aren't you? 14 MR. LAWSON: No, what Pm saying is, 15 leave them the way they are, and give us what 16 was approved back in'62, and we don't need to 17 bother Your Honor; we don't need to bother the 18 BZA. 19 And I think, frankly, that was that 20 other case that we argued, about the vested 21 rights policy, and how it was being interpreted. 22 If Your Honor does make that Page 25 1 determination, I think we are actually in a 2 position to cut this short, and we will not 3 trouble this Court and not trouble the BZA. 4 THE COURT: I'm not sure where you are 5 going. It seems to me you are going outside 6 what has been brought to me. I don't have any 7 idea what your guy is trying to do. 8 MR. LAWSON: This is what is in front 9 of the record I'm referring to. 10 THE COURT: I don't -- I still don't 11 know, after all this time, exactly what your 12 client intends to do with the lots. 13 I expect that's the County's problem, 14 too, that they probably aren't real sure what 15 you are intending to do either. 16 MR. LAWSON: His intent, originally, 17 was to build on the lots as platted. He was 18 then told that these modern day setbacks would 19 only -- 20 THE COURT: Would apply. 21 MR. LAWSON: Would apply, which 22 consumed them. So then he went to drawing these 7 (Pages 22 to 25) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. vAmeasamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454-969c-Oa310bfda499 June 16, 2004 Highview Page 26 1 boundary line adjusted things, and -- 1 2 THE COURT: So you are saying -- what 2 3 you are really telling me is that he hasn't 3 4 decided what he's going to do. 4 5 MR. LAWSON: Well, I think if Your 5 6 Honor rules that what was approved way back -- 6 7 THE COURT: If I rule one way, he's 7 8 going to do something one way. If I rule 8 9 another way, then he's going to change his 9 10 plans? 10 11 MR. LAWSON: What he'll do is he will 11 12 simply stay where he is with the lots, as 12 13 platted, and he may end up adjusting some. And 13 14 if he does, I understand he'll have to go meet 14 15 with the Board. 15 16 THE COURT: Here's what I think. I 16 17 think he ought to go through the BZA and get 17 18 this thing done right. 18 19 And if he is going to make bigger 19 20 lots, then he ought to do that, and they ought 20 21 to go ahead and conform, and make it proper, 21 22 instead of building little houses on postage 22 Page 27 1 stamp lots. 1 2 That doesn't make sense to me. I 2 3 don't think it makes sense to him, if I 3 4 understood his testimony. 4 5 MR. LAWSON: Well -- 5 6 THE COURT: He intended on putting 6 7 nice houses in there, consistent with the kind 7 8 of development that I think he intends in other 8 9 locations in Frederick County. 9 10 That was his testimony. 10 11 MR. LAWSON: But he has been told he 11 12 cannot do that, for other reasons. And again, 12 13 that is not before Your Honor, but that is very 13 14 much in front of us. 14 15 THE COURT: All right. Do you know 15 16 anything about that, Mr. Mitchell, what he's 16 17 talking about, outside the four corners of this 17 18 case? 18 19 MR. MITCHELL: This all happened in 19 20 discussions that we've had since we were in 20 21 Court. 21 22 THE COURT: In an effort, I take it, 22 8 (Pages 26 to 29) Page 28 to resolve it, made certain proposals that raised other objections that are outside the record of this case; is -- MR. MITCHELL: Yes. THE COURT: -- that correct? MR. MITCHELL: Correct. THE COURT: Any way around those objections? Do you all need time to discuss it? I will certainly give it to you. I've got this other case to do, and we can come back to this one. MR. MITCHELL: Judge, I don't -- I don't think there is. I mean, it's an Ordinance requirement that we are talking about. THE COURT: Size of roads and things? MR. MITCHELL: Well, whether or not a road has to be a public road, or not. That's what that other issue is, totally unrelated to anything that's in this case. Your Honor, it seems to me that the Court has said that we are right on the vested rights issue. It seems to me the Court should Page 29 confirm the decision of the BZA. It's presumed to be correct. They can then -- they know what. they've got to do before the BZA. They can refile before the BZA, give us the information we want -- THE COURT: Well, I think that's right, and I think they need to go through the BZA. And they need to go ahead and put their cards on the table that this is what they are going to do, and then do it, and get it approved. I do think though, that it's inconsistent for the County to say that I'm going to look at the plat and not consider the writing on the Deed of Dedication. MR. MITCHELL: Well, let me address that point specifically, Your Honor, because I don't want there to be a glitch in the record about this. The problem here is, or the issue to Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454f-969c-Oa31obfda499 June 16, 2004 Highview 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 122 Page 30 be addressed is that we have a County Ordinance, not -- we are not talking about policy now, we are talking about a County Ordinance that says that we will -- that -- that if you have a lot recorded and the Ordinance changes as to setbacks, the new setbacks apply, unless the approved plat had the setbacks shown on them. Now the reason for making the distinction between the plat and the document is that the governing body approves the plat. The governing body does not approve the Deed of Dedication. So that's never been a part of the County approval process. THE COURT: Let me ask you this -- MR. MITCHELL: And to say -- THE COURT: What if no setbacks are shown? Does that mean there are no setbacks? MR. MITCHELL: That means -- that means that they are not -- they don't -- they are not vested in any particular setback, and the setbacks that have been adopted by the Page 31 County - THE COURT: Would apply. MR. MITCHELL: -- would apply. Now they have -- they did show the front setbacks on the plats, and they, pursuant to this statute, even though it's less than what the County -- the current County requirement is, the County has said, yes, we recognize that front setback. THE COURT: All right. If there are no setbacks shown, in other words, what you are telling me is they had shown a one -foot side setback you would say that was what would be applied? MR. MITCHELL: That's correct. THE COURT: If they showed it was a zero -- MR. MITCHELL: Because the Board of Supervisors, when they looked at that plat and approved it, they said, okay THE COURT: And if they show a zero setback then you say that not a zero applies, Page 32 1 but the current County setbacks. 2 MR. MITCHELL: That's correct. There 3 may have been a different issue if they had 4 written on the plat, zero setback, but we don't 5 have that situation here. 6 THE COURT: All right. 7 Mr. Lawson, I will give you the last 8 word. 9 MR. LAWSON: Thank you. 10 Just again, for purposes of 11 clarification, I, again, say that if Your Honor 12 finds that -- and I think this is truly helpful 13 -- that if somebody puts something in the record 14 in a writing, that that is something that's 15 given some dignity. 16 But I think that goes a long way to 17 helping this case, because what it does is, is 18 it gives you vesting in -- according to the 19 County's own Ordinance -- it gives you vesting 20 in that thing that was put to record back in the 21 sixties. 22 THE COURT: And Mr. Mitchell says that Page 33 1 the fact that it's on record doesn't mean 2 anything, because it wasn't approved. 3 MR. LAWSON: Well, no, it was 4 approved, because the document was signed and 5 recorded. 6 And I think what I heard Your Honor 7 say is just because you put it on the plat, and 8 you didn't write it on the sides, but you did 9 put it in the text, that does give some 10 credibility to it; it ought to be given some 11 dignity. 12 MR. MITCHELL; But -- 13 MR. LAWSON: And what I'm saying is, 14 we are dealing with a County Ordinance which is 15 a very difficult thing, because they are 16 interpreting stuff which was written way, way 17 back, and there's actually latitude as to how 18 they do it, how you write setbacks. 19 There are different initials you use, 20 and things like that. 21 But if we can get that resolved, and 22 we have our side and rear -- because somebody 9 (Pages 30 to 33) 'hone: 703-837-0076 CASAMO & ASSOCIATES, INC. wwwxasamoxom Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454f-969c-Oa310bfda499 June 16, 2004 Highview Page 34 1 did go to the trouble of creating a writing, 1 2 putting it in the very same instrument where 2 3 this plat is recorded, and put it all in the 3 4 record, than I think we don't go through the 4 5 BZA, we don't have any of that. 5 6 The other thing I would like, for the 6 7 purposes of the record, when you say the County 7 8 is right, with regard to vesting, number one, we 8 9 need to get to that vested rights policy. 9 10 But number two, the County also 10 11 advanced an argument that was kind of a cut -and- 11 12 paste read of the Virginia State Code, that 12 13 essentially said every subdivision that's not 13 14 completed after five years, it disappears. And 14 15 1 MR. MITCHELL: Now Mr. Lawson, that's 15 16 not correct, and I've never said that it 16 17 disappeared. The statute doesn't say it 17 18 disappears. Read the statute, for a change. 18 19 MR. LAWSON: Your Honor? 19 20 THE COURT: Mr. Mitchell, just a 20 21 minute. I will give you a chance. 21 22 MR. LAWSON: Again, the vesting went 22 Page 35 1 more to the issue and suggested that that's what 1 2 that Alexandria case stood for, and so on. 2 3 Your Honor made the comment, are you 3 .4 going to call up your client to tell them they 4 5 had better re-record, and I said, well, 5 6 actually, I think we are beyond five.years on 6 7 many of those, so we may be out of luck. 7 8 But I do think we need some 8 9 clarification as to what the Judge's 9 10 determination is, with regard to vesting. 10 11 THE COURT: All right. 11 12 Mr. Mitchell, I -- 12 13 MR. MITCHELL: Yes, Your Honor. 13 14 THE COURT: -- will let you respond in 14 15 a way that I can understand you now., 15 16 MR. MITCHELL: Your Honor, I think the 16 17 vested rights issue, as presented in our brief, 17 .18 is clear, both in 23-07, the first element of 18 19 23-07, which says, a significant governmental 19 20 act has to remain in effect. 20 21 Those words mean something. 21 22 Section 22-61 is clear. You record a 22 10 (Pages 34 to 37) Page 36 subdivision plat. You can develop, under that plat for five years, in accordance with the regulations that were in effect at the time. If you don't, if you haven't developed in that time, then any subsequently adopted regulations apply. I think it's perfectly clear that's what the Alexandria case said. That's what the statute says, and I think that, with respect to the vested rights issue, and the request for a Declaratory Judgment, the fact is that they are not vested, so as to preclude the application of the setbacks. With respect to the BZA case, the BZA decision comes forward with a presumption of correctness. The burden is on them in order to overcome that presumptuous, that they show, by a preponderance of the evidence, that the BZA incorrectly applied the law. I don't think that they -- they have shown -- it can't be shown in this BZA record. Page 37 I think, as the Court has acknowledged, the BZA, with respect to what they had before them, acted correctly. I would submit that the Court should enter Declaratory Judgment for the County, declaring that the Plaintiff is not vested, so as to preclude the application for setback lines, and should approve the decision of the BZA. THE COURT: And what part of that includes the fact that he can go back to the BZA and get approval more than one at a time? Because that was the part of the BZA ruling that concerned me, was that the discussion that was had and that's reflected on the record, seems to indicate that the BZA thinks they have to do it on a house -by -house basis. I don't think they have to do that. That's the only thing I think they did that was questionable, in my view. I will affirm their action, but I Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454f-969c-Oa31Obfda499 June 16, 2004 Highview Page 38 Page 40 1 think that it should be clear that they can, in 1 held that case in abeyance until a determination 2 my view, with regard to one landowner, approve a 2 of this case. 3 concept for more than simply one at a time. 3 THE COURT: Right. 4 MR. MITCHELL: I think that's right if 4 MR. MITCHELL: You have made the 5 we are saying the same thing. 5 determination in this case that they are -- they 6 They can come in to the BZA with 6 are not vested, which is the only provision in 7 twenty-five lots -- 7 that vested rights policy that affects them. 8 THE COURT: Right. 8 We have filed Pleadings in that case, 9 MR. MITCHELL: -- but for each lot 9 which we can argue at a later time. .10 they need to show the location of the drain 10 THE COURT: Right. 11 field, and -- and a sample dwelling, so the BZA 11 MR. MITCHELL: Once the Court has made 12 can make a determination at one time, on all 12 this determination -- 13 twenty-five lots -- 13 THE COURT: Why don't you -- 14 THE COURT: And the next -- 14 MR. MITCHELL: -- they don't have any 15 MR. MITCHELL: -- that one lot may 15 standing to attack that. 16 need a seventeen -foot, and one lot may need -- 16 THE COURT: Why don't you take this 17 THE COURT: The next question is; if 17 decision and see if Mr. Lawson can work it out 18 the person he sells the lot to doesn't want to 18 with his clients, and do something with this? 19 put his house where it's shown on the sample 19 It seems to me that all he's got to do 20 dwelling, as the sample, if he wants to move it, 20 is file a new application to the BZA, and 21 he can do that, or is he locked in? 21 comply, and he can develop his land. 22 MR. MITCHELL: He can move it -- 22 That's all he wants to do. Page 39 Page 41 a 1 THE COURT: Inside the setbacks. 1 MR. LAWSON: Well, actually, Your 2 MR. MITCHELL: Inside the setbacks 2 Honor, I think we are entitled to, and would 3 that have been established by the BZA. 3 like a ruling on the application of the vested 4 THE COURT: All right. Well, as long 4 rights policy. .5 as that's clear, then my ruling will be as 5 THE COURT: That's the next case. 6 you've indicated. 6 MR. LAWSON: Yes, sir. 7 And with regard to the other two cases 7 THE COURT: Then we've principally 8 -- 8 heard argument and evidence on this case, and 9 MR. MITCHELL: The first case has been 9 I'm ruling on this case. 10 resolved, Your Honor; that's over. to If you want a trial date on the next 11 THE COURT: There is another case 11 case I will give you that. Or if you want 12 though that was hanging. This doesn't resolve 12 another date -- 13 both of them; does it? 13 MR. MITCHELL: Well, we've filed a 14 MR. MITCHELL: The other case -- 14 motion, Your Honor, now that will be clarified, 15 MR. LAWSON: The vested rights policy, 15 by virtue of the Court's ruling in this case. 16 Your Honor -- 16 We filed a motion in the other case 17 THE COURT: Right. 17 which we can set down to argue. 18 MR. LAWSON: -- as it has been 18 MR. LAWSON: I think that's really a 19 interpreted. 19 matter of ruling on the law, so we can set 20 THE COURT: Right. Now what do you 20 whatever date -- 21 want to do with that one? 21 THE COURT: I don't like to, and I 122 MR. MITCHELL: Well, Your Honor, you 22 don't think anybody likes to do things that are 11 (Pages 38 to 41) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454-969c-Oa310bfda499 June 16, 2004 Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 42 unnecessary. MR. LAWSON: Right. THE COURT: In view of what I decided today, I think if I give you all some breathing time, maybe that case will go away, if you find some way to get your lots approved. MR. LAWSON: I appreciate that. My instructions are to somehow try to get some finality to these things, so the sooner we could THE COURT: I would be happy to give you some finality. MR. LAWSON: Thank you, Judge. And I know you want finality, as well. MR. MITCHELL: Judge, I will -- THE COURT: You'll be out in July? MR. MITCHELL: I'll do the order on this one. THE COURT: In August? When are you available? You are going on vacation when? MR. MITCHELL: The 14th through the 21 st, Your Honor. Page 43 THE COURT: Of? MR, MITCHELL: August. THE COURT: August. And you, you are available? MR. LAWSON: Do you have some time in early July, Your Honor? THE COURT: I don't know about early July. MR. LAWSON: I think we are looking at an hour. THE COURT: August 6th? MR. MITCHELL: Your Honor, in that case, I have a motion. THE COURT: I understand. MR. MITCHELL: A demurrer, Motion to Dismiss. I forget exactly how -- I don't have the file with me -- exactly how it's titled. THE COURT: Right. MR. MITCHELL: And I think that's the threshold issue. THE COURT: August 6th, that's a Friday. 12 (Pages 42 to 45) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 44 MR. LAWSON: That's fine, Your Honor. THE COURT: It may not be fine for Mr. Mitchell. MR. MITCHELL: I think I'm going to be in Brevard, North Carolina -- no, no; I'm sorry. THE COURT: August 6th? MR. MITCHELL: August 6 is okay. It's the prior weekend. THE COURT: All right. Mr. Ambrogi, we had criminal cases set, but you all are going to some conference or something on those two days, the 5th and the 6th? MR. AMBROGI: That's correct. THE COURT: Is 6 August okay, Mr. Mitchell? MR. MITCHELL: Yes. THE COURT: So this will be Highview One, and what is that Docket Number? MR. LAWSON: I believe it's -- THE COURT: We've got three cases. One of them is finished, now this one is finished, and now we've got one left. Page 45 MR. LAWSON: I believe it's 03-513, but let me check, Your Honor. THE COURT: All right. MR. MITCHELL: Yes, it is 513. THE COURT: Okay. We'll set that down for an hour of argument. MR. LAWSON: Yes, Your Honor. THE COURT: And I hope you all will tell me that it's resolved, because you all have found some way around this. MR. MITCHELL: Thank you, Your Honor. THE COURT: Thank you, Mr. Mitchell. Thank you, Mr. Lawson. MR. LAWSON: Thank you. (Whereupon, at approximately 1:45 p.m., the hearing in the above -entitled matter was concluded.) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fak: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454f-969c-Oa310bfda499 June 16, 2004 Highview .. �• 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 :19 20 21 Page 46 CERTIFICATE OF COURT REPORTER I, Deborah J. Jackson, a Certified Verbatim Reporter, do hereby certify that I took the stenographic notes of the foregoing testimony, and reduced the same to typewriting; that the foregoing is a true record of the testimony given by said witnesses; that I am neither counsel for, related to, nor employed by the parties hereto, nor financially or otherwise interested in the outcome of the action. Phone: 703-837-0076 Fax:703-837-8118 DEBORAH J. JACKSON, CVR Notary Public in and for the State of Virginia at Large. 13 (Page 46) CASAMO & ASSOCIATES, INC. www.casamo.com Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com bb2d9607-81de-454f-969c-Oa310bfda499 June 16, 2004 Highview A l abeyance 40:1 ability 15:20 able 4:11 14:4 15:6 about 3:16,20 8:3 13:7 15:16 17:10 19:12 20:20,22 22:11 24:20 27:16,17 28:14 29:21 30:2,3 43:7 above -entitled 1:14 45:17 acceptable l l:1 accordance 36:2 .according 32:18 acknowledged 37:1 act 11:1 35:20 acted 37:2 acting 13:7 action 37:22 46:12 actually 8:4 19:4 22:14 25:1 33:17 35:6 41:1 address 29:18 addressed 30:1 adjusted 26:1 adjusting 26:13 adopted 30:22 36:5 advanced 34:11 advisement 5:19 advisory -type 18:20 affects 40:7 affirm 37:22 afield 9:3 after 5:19 25:11 34:14 again 3:15 21:4,5,16 27:12 32:10,11 34:22 ago 4:10 7:13 agree 5:4 ahead 12:20 20:5 26:21 29:10 Alexandria 7:18 35:2 36:8 allegation 19:12 allow 23:10 almost 11:21 18:20 alternative 9:1 although 19:14 Ambrogi 3:5,7,9,13 44:9,13 another 26:9 39:11 41:12 anybody4:13 5:10,12 41:22 anymore 21:4 anything 12:10 20:20 27:16 28:18 33:2 1Appeals 1:8 8:9 9:9,16 Phone: 703-837-0076 Fax: 703-837-8118 9:22 10:9 Appearances 2:2 application 9:15 13:22 36:13 37:7 40:20 41:3 applied 31:14 36:20 applies 31:22 apply 8:4 17:17 18:22 25:20,21 30:6 31:2,3 36:6 appreciate 16:8 42:7 appropriate 15:19 approval 9:14 12:22 14:20,22 30:14 37:12 approvals 13:12 approve 8:21 9:4 12:4 30:11 37:8 38:2 approved 21:15 22:15 24:16 26:6 29:13 30:7 31:20 33:2,4 42:6 approves 30:10 approximately 1:18 45:16 argue 40:9 41:17 argued 23:17 24:20 argument 5:12 16:20 34:11 41:8 45:6 arguments 8:3 10:3 around 10:3 28:7 45:10 asking 18:19 assist 22:21 assume 22:22 assuming 12:22 attack 40:15 August 42:19 43:2,3,11 43:21 44:6,7,14 authority 11:17 12:2 19:9 available 42:20 43:4 away 42:5 B back4:9 11:8 16:5 22:15 23:4,18 24:16 26:6 28:10 32:20 33:17 37:11 basically 7:20 basing 19:18 basis 8:12 9:12 10:14 10:16 12:1 37:18 before 1:15 19:10 27:13 29:4,5 37:2 behalf 1:19 2:3,7 being 11:2 24:21 believe 11:17 13:11 17:2 44:19 45:1 besides 7:9 best 11:3 better 35:5 between 8:1 30:9 beyond 20:18 35:6 big4:3 12:11 bigger 26:19 blanket 8:14,18,19,22 blatant 17:20 Board 1:8 8:8 9:9,16 9:22 10:9 24:6 26:15 31:18 body 30:10,11 Boscawen 2:9 both 35:18 39:13 bother 24:17,17 bought 21:21 boundaries 13:19 19:16 boundary 26:1 boxes 21:18 breathing 42:4 Brevard 44:5 brief 35:17 briefs 8:3 bring 22:20 brought 25:6 build 18:18 19:3 21:12 25:17 building 21:18 26:22 built 13:14 14:7 bulk 9:7 burden 36:17 buy 14:12 BZA 4:22,22 10:12 11:1,14,1712:7,13 12:21 13:6,7 14:3,18 15:20 16:6,15,21 17:11 18:7,16,20 19:2,9,11,19 20:7 21:14 24:8,18 25:3 26:17 29:1,4,5,9 34:5 36:15,15,19,22 37:1 37:9,11,13,16 38:6 38:11 39:3 40:20 BZA's 10:13 C C 3:1 call 35:4 came 1:14 4:9 cards 29:11 Carolina 44:5 case 3:5,19 4:5 5:20 6:2 7:17,21 8:8 9:12 10:2 11:3 15:15 20:19 23:9 24:20 27:18 28:3,10,19 32:17 35:2 36:8,15 39:9,11 39:14 40:1,2,5,8 41:5 41: 8,9,11,15,16 42:5 43:13 cases 5:18 39:7 44:10 44:20 case -by 9:11 case -by -case 8:11 10:14 certain 23:12 28:1 certainly 28:9 CERTIFICATE 46:1 Certified 46:4 certify 46:5 cetera 24:6 chance 34:21 Chancery 1:7 change 16:9 26:9 34:18 changes 30:5 charged 12:9 14:1 check 45:2 Circuit 1:2,16 7:17 City 7:18 clarification 32:11 35:9 clarified 41:14 clear 35:18,22 36:7 38:1 39:5 clearly 10:10 client 25:12 35:4 clients 10:11 11:21 40:18 clip 21:19 close 5:8 Code 34:12 cogent 10:20 combine 13:19 19:15 24:12 combining 12:16 come 7:14 18:7 19:2,10 23:14 28:10 38:6 comes 15:10 18:7,7 36:16 commencing 1:18 comment 35:3 comments 5:11 Commission 9:8 common 24:1 completed 18:8 34:14 compliance 13:1 comply 11:12 17:3,9 40:21 comprehensive 10:20 concept 38:3 conceptually 16:18 concerned 37:14 concluded 45:18 conference 44:11 confirm 23:10 29:1 confirmed 22:16 conflict 6:4 conform 26:21 consider 29:16 consistent 10:21 27:7 consolidating 12:16 consumed 25:22 context 8:8 corners27:17 correct 6:10,14,20 7:19 9:13 28:5,6 29:2 31:15 32:2 34:16 44:13 correctly 37:3 correctness 36:17 Cosheen 3:21 21:17 counsel 46:10 count 23:15 County 1:2,8,17 2:7 6:8 7:2,15 10:22 11:16 16:19 20:11,15 27:9 29:15 30:1,3,14 31:1,7,7,8 32:1 33:14 34:7,10 37:5 County's 12:11 23:8,13 25:13 32:19 couple 4:9 5:18 17:15 course 18:16 court 1:2,16 3:2,4,8,10 3:14,18 4:1,16,20 5:2 5:10,16,21 6:2,13,15 6:21 7:17,20 8:22 9:6 9:20 13:10,18 14:5 15:3,5,12 16:4,8,18 17:22 18:3,9,12 19:8 19:21 20:4,17 21:2,6 21:20 22:7,9 24:11 25:3,4,10,20 26:2,7 26:16 27:6,15,21,22 28:5,7,15,21,22 29:7 30:15,17 31:2,10,16 31:21 32:6,22 34:20 35:11,14 37:1,4,10 38:8,14,17 39:1,4,11 39:17,20 40:3,10,11 40:13,16 41:5,7,21 42:3,11,16,19 43:1,3 43:7,11,14,18,21 44:2,6,9,14,17,20 45:3,5,8,12 46:1 Courthouse 1:17 Court's 41:15 Covenants 7:1 creating 34:1 credibility 33:10 CASAMO & ASSOCIATES, INC. www.casamo.com Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com L June 16, 2004 Highview crimina144:10 current 17:3 31:7 32:1 cut 25:2 cut -and 34:11 CVR 46:16 D D 3:1 date 6:7 41:10,12,20 day 22:4 25:18 days 44:12 dealing 33:14 Deborah 46:4,16 decide 4:6 decided 26:4 42:3 decision 4:12,22 5:15 5:19 6:1 9:22 12:20 29:1 36:16 37:8 40:17 decisions 10:5 Declaratory 36:11 37:5 declaring 37:6 Dedication 6:22 29:17 30:12 Deed 6:22 29:17 30:11 Defendants 1:9 degree 7:3 demurrer 43:15 Department 10:22 14:21 departure 4:2 desire 4:13 6:1 10:13 determination 12:8 14:4 18:21 23:3,17 25:1 35:10 38:12 40:1,5,12 determine 9:18 develop 11:22 15:17 19:4 36:1 40:21 developable 11:4 developed 36:4 development 27:8 dialogue 4:3 difference 7:4 16:15 different 12:18 19:1,13 20:22 22:4,6 32:3 33:19 difficult 6:2 21:10 33:15 dignity 24:5 32:15 33:11 direction 10:7 disappeared 34:17 disappears 34:14,18 discuss 28:8 discussion 8:1 13:10 37:15 discussions 27:20 Dismiss 43:16 distinction 30:9 distinctions 7:3 divert 17:20 Docket 44:18 document 30:9 33:4 documentation 14:20 documents 23:11 doing 17:18 19:6 done 9:7 20:9 26:18 down 16:11 20:1 41:17 45:5 drain 17:17 18:8 19:5 38:10 draw 7:3 20:16 21:13 22:2 drawing 6:18 14:9 25:22 drawings 23:5 drawn 24:10 drew 3:5 Drive 2:5 duly 3:3 dunk 10:6 duty 7:8 dwelling 15:18 38:11 38:20 E E 3:1,1 each 13:13,21 14:3,19 38:9 early 43:6,7 East 2:9 effect 7:14,21,22 9:7 14:18 18:19 35:20 36:3 effort 27:22 efforts 5:6 either 25:15 element 4:17 35:18 eleven 3:11 elicited 4:7 employed 46:10 empty 14:10 end 23:2 26:13 ensued 4:3 enter 37:5 entitled 10:11 41:2 especially 13:16 ESQUIRE 2:4,8 essentially 34:13 establish 19:7 established 39:3 estate 7:15 et 24:6 even 31:6 every 34:13 everything 13:1 evidence 4:3,14 19:14 36:19 41:8 exacerbate 20:13 exactly 25:11 43:16,17 except 8:10 . 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24:17,22 26:6 27:13 28:20 29:19 32:11 33:6 34:19 35:3,13 35:16 39:10,16,22 41:2,14 42:22 43 :6 43:12 44:1 45:2,7,11 HONORABLE 1:15 Honor's 5:15 hope 45:8 hour 3:2143:10 45:6 . house 13:13 14:7,14,15 15:8,11,14 16:10,12 16:17 19:6 21:12 38:19 houses 11:10 26:22 27:7 house -by -house 10:15 12:1 37:17 idea 25:7 imposes 11:20 impossible 11:21 13:15 14:8 inadequate 20:20 includes 37:11 inconsistent 29:15 incorporated 23:6 Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. - www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com June 16, 2004 Highview incorrectly 36:20 indicate 37:16 indicated 4:6,10 8:17 12:15 18:16 39:6 information 9:17 14:2 16:7 29:5 initials 33:19 Inside 39:1,2 instead 8:12 26:22 instruction 5:7 instructions 42:8 instrument 7:5 23:7 24:4 34:2 intended 27:6 intending 25:15 intends 25:12 27:8 intent25:16 interested 46:12 interpret23:20 interpretation 16:20 interpreted 7:20 24:21 39:19 interpreting 33:16 involved 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Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com June 16, 2004 Highview plan 10:20 13:13 19:14 Planning 9:8 10:22 plans 12:6,21 22:13 26:10 plat 6:15,18 15:1 18:8 23:5,14 29:16 30:7,9 30:10 31:19 32:4 33:7 34:3 36:1,2 plats 18:7 23:10 31:5 platted 25:17 26:13 Pleadings 40:8 point 4:8 5:17 19:2 29:19 policy 23:8 24:21 30:2 34:9 39:15 40:7 41:4 portion 6:22 position 23:13 25:2 postage 26:22 posture 5:5 power 11:15 practice 2 1: 10 preclude 36:13 37:7 predated 6:8 prepared 13:22 preponderance 36:19 present 1:19 presented 35:17 presumed 29:1 presumption 36:16 presumptuous 36:18 primary 18:15 principally 41:7 prior 44:8 probably 12:15 25:14 problem 15:5 18:14 21:7 25:13 29:22 problems 18:15 process 16:22 30:14 proffer 5:6 proper 26:21 properly 6:7 properties 8:14 property 11:22 16:10 proposals 28:1 proposed 20:12 Prosser 1:15 3:3 provision 40:6 public 28:17 46:17 purposes 32:10 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www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 7/14/03 Highview 1 V I R G I N I A 2 IN THE CIRCUIT COURT OF FREDERICK COUNTY K Page 1 4 - - - - - - - - - - -x 5 HIGHVIEW ONE, L.L.C., 6 Plaintiff, 7 -vs- In Chancery: 03-318 and 03-415 BOARD OF SUPERVISORS OF 9 FREDERICK COUNTY., 10 Defendants. r. �11 - - - - - - - - - - - - -x 12 Wednesday, July 14, 2004 j 13 Winchester, Virginia 14 15 The above -entitled matter came on to g 16 be heard before THE HONORABLE JOHN R. PROSSER, 17 JUDGE, in and for the Circuit Court of Frederick 18 County, Virginia, in the Courthouse, Winchester, 19 Virginia, commencing at approximately 10:20 'i 20 o'clock a.m., when there were present on behalf of the respective parties: p 21 r 22 { 4ck«.tixF, .w w,., Y.x kc.... ....«.s±.WrR......o.R.»..c. u ...,�.,.a....,. ee«Yu . ...,»,,,v_... F......_.»f �,n,......�3.3w...,[.r:..,......F..e..._.>....v.am�=,.n.......«_.4«=...i w.,. ..w..««.v..«.....>..ms« Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9alc-4438-90a3-b5flf548c3a9 7/14/03. Highview Page 2 Page 4 1 Appearances: 1 MR. MITCHELL: This is the case in 2 On Behalf of the Plaintiff: 2 which the Court announced its decision the last 3 THOMAS M. LAWSON, ESQUIRE Lawson & Silek 3 time we were here. 4 160 Exeter Drive 4 (Whereupon, Counsel presented a Suite 103 5 document to the Court.) 5 Winchester, Virginia 22603 6 MR. MITCHELL: That's my proposed 6 (540) 665-0050 7 Order, and Mr. Lawson handed me a couple of On Behalf of the County: 8 minutes ago his proposed Order. 7 9 THE COURT: Would you like to hand ROBERT T. MITCHELL, JR., ESQUIRE 10 that up? 8 9 East Boscawen Street Winchester, Virginia 22603 11 MR. LAWSON: I would be pleased to, 9 (540) 662-3200 12 Your Honor. 10 * * * * * 13 (Whereupon, Counsel presented a 12 14 document to the Court.) 13 15 THE COURT: When I get in these kinds 14 16 of disputes I'm mindful of Mr. Monahan, who used 15 17 to be our senior partner, mine and 16 17 18 Mr. Mitchell's. 18 19 Mr. Monahan said, "Entry of the Orders 19 20 are always an opportunity to win what you lost." 20 21 21 (Laughter) 22 22 THE COURT: And he followed that Page 3 Page 5 1 PROCEEDINGS 1 practice, didn't he, Mr. Mitchell? 2 (Whereupon, other matters were 2 MR. MITCHELL: He sure did. 3 taken up by the Court.) 3 Your Honor, let me address my Decree 4 * 4 first. I think it correctly sets forth the 5 * 5 ruling. The Defendants did file a Motion for 6 THE COURT: Highview One. 6 Summary Judgment in this case, and that, of 7 MR. MITCHELL: Yes, Your Honor. This 7 course, is not reflected in Mr. Lawson's Order. 8 comes on for entry -- 8 Secondly, as to the findings report, 9 THE COURT: Do you want me to swear 9 my paragraph A does not -- I don't think there 10 this lady? 10 is any objection to that, because it's also 11 (Whereupon, the court reporter was 11 contained in Mr. Lawson's. 12 duly sworn by Judge Prosser.) 12 Paragraph B, the Board of Zoning 13 THE COURT: Good morning, 13 Appeals in this case denied the Variance 14 Mr. Mitchell -- 14 Application, and -- and I think it's clear that 15 MR. MITCHELL: If it please the Court 15 the Court sustained that. And the language in 16 -- 16 my Decree is the statutory standard for review 17 THE COURT: -- and Mr. Lawson. 17 of a BZA action, and I set that forth in the 18 MR. LAWSON: Good morning, Your Honor. 18 findings. 19 MR. MITCHELL: -- this comes on on the 19 And then, in my Decree, decree that 20 entry of a Decree. Let me take Chancery 03-415 20 they did not have vested rights, and Mr. Lawson 21 first. 21 also has that in his Decree, so I assume that 22 THE COURT: Okay. 22 particular finding is not objected to. 2 (Pages 2 to 5) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a1 c-4438-90a3-b5f1 f548c3a9 7/14/03 Highview Page 6 Page 8' - 1 I think the decision of the Board of 1 a bit of a dialogue after which -- an argument 2 Zoning Appeals denying the Plaintiffs variance 2 after which the Court made a ruling. 3 is affirmed is correct, and then judgment is 3 I don't think that should be in the 4 entered for the Defendants, and Complaint 4 Decree. That's part of the record. If they 5 dismissed, that's also in Mr. Lawson's Decree. 5 take this up on appeal, you know, they have the 6 Now with respect to Mr. Lawson's 6 record and they can use that information, 7 proposed Decree, under the findings, capital B, 7 whatever is set forth in that. 8 he is asking the Court -- or he has this Order 8 THE COURT: You say it's superfluous. 9 reflecting that the Court found that it was 9 MR. MITCHELL: Correct. 10 affirmed in part, and overruled in part, and 10 And then number 3 in Mr. Lawson's 11 never says what part is affirmed and never says 11 thing again is about -- it says, "The decision 12 what part is overruled. 12 of the Board of Zoning Appeals in denying the 13 I don't think there was any overruling 13 Plaintiffs Variance Application is affirmed in 14 of the decision of the BZA. I think that's an 14 part and overruled in part." 15 incorrect statement of the -- what was before 15 Well, what does that mean? I don't 16 the Court for determination. 16 think it was affirmed in part and overruled in 17 THE COURT: It looks to me like the 17 part. The variance was denied, and that denial 18 critical thing in his Decree that's different 18 was affirmed by this Court. 19 from yours is the next sentence in paragraph B. 19 I would submit, Your Honor, that the 20 Isn't that it? 20 Decree that we have submitted properly sets 21 MR. MITCHELL: I think that's- correct. 21 forth the rulings of the Court. 22 I mean, I'm not sure what the affirmed in part 22 THE COURT: All right. Page 7 Page 9 1 and overruled in part is concerning. 1 Mr. Lawson. 2 THE COURT: I don't care about that. 2 MR. LAWSON: Your Honor, I think the 3 MR. MITCHELL: There was discussion 3 key distinctions are the issues with regard to 4 -- 4 the Board of Zoning Appeals' decision, and also 5 THE COURT: The BZA is directed -- 5 the incorporation of the transcript. 6 MR. MITCHELL: There was discussion in 6 And I think, working them in reverse 7 the dialogue that we had before the Court made 7 order, the transcript incorporation, it's not 8 its ruling as to -- in fact, in that case, they 8 superfluous, it's Your Honor's statements and 9 came in without having to file a separate 9 findings of fact and law. And I would, 10 application for each lot. 10 respectfully, state that it is certainly more 11 We said they can still do that. 11 than superfluous. 12 The -- with respect to the Decree, I 12 ' Yes, it is part of the record, and 13 particularly object to his first one, by saying 13 yes, it is, in part, guidance. 14 "The Court restate and incorporate by reference 14 But I think it needs to be part of 15 its ruling set forth in the attached 15 this Order so that those that look at it, be 16 transcript." 16 they Appellate Courts, or be they BZAs, will 17 Now this was not a case where the 17 have a good idea of what this Judge has done, so t 18 Court rendered a written opinion that's being 18 that we, hopefully, don't appear back here 19 attached to an Order. Neither is it a situation 19 again. 20 where the Court read or set forth a ruling, for 20 With regard to the BZA item, as I 21 the record. 21 understood your ruling, number one, I recall '22 What we had, when we came in here, was 22 -- and it's in the transcript -- that you found 3 (Pages 6 to 9) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a 1 c-4438-90a3-b5f1 f548c3a9 7/14/03 Highview Page 10 1 that there was, in fact, a hardship created by 1 2 this situation. 2 3 And as I recall your decision, it was 3 4 a direction to send this thing back to the BZA, 4 5 and to try to work this thing out through that 5 6 process. 6 7 And so to simply state that this thing 7 8 -- that the BZA is affirmed, your Prayer for 8 9 Relief is denied, I think, quite frankly, runs 9 10 counter to what Your Honor ruled. 10 11 And I'm not trying to alter anything, 11 12 or to use Mr. Monahan's words, "to win what was 12 13 lost," but simply to try to get this thing in a 13 14 direction and in a posture so that maybe we can 14 15 appear before the BZA and get this thing 15 16 corrected. 16 17 Because otherwise, I fear if the BZA 17 18 does not have a flavor of what occurred in front 18 19 of Your Honor -- and I would suggest that if you 19 20 read Mr. Mitchell's Order you have no flavor of 20 21 what Your Honor reviewed, and thought about, and 21 22 considered, and in some cases gave some strong 22 Page 11 1 direction to -- I'll tell you where I think 1 2 we'll end up. 2 3 We will be back here again, afresh, 3 4 after the BZA is bolstered by a Court Order 4 5 saying we did it right the first time, so we're 5 6 going to deny it a second time, and we're going 6 7 to be right back where we started. 7 8 So for all of those reasons, I simply 8 9 think our form is the correct one. 9 10 Mr. Mitchell said we didn't object to 10 11 some of his other provisions. 11 12 Obviously, we object, and for the 12 13 record, we have, and will continue to do so. 13 14 But I think that it would be proper to 14 15 put them in the Order as we have drafted it. 15 16 Two big items. One is, this thing, per your 16 17 instructions going back to the BZA, and the BZA 17 18 needs some guidance. 18 19 And secondly, Your Honor -- and it's a 19 20 forty-five, forty -six -page transcript. I mean, 20 21 there's a lot of stuff in there that I would 21 22 strenuously argue is not superfluous, and it 22 4 (Pages 10 to 13) Page 12 ought to be part of this Order. And it doesn't do us justice to do a three -bullet paragraph -- THE COURT: I meant when I said it was superfluous, it seems to me it's already part of the record in the case. MR. LAWSON: Well -- THE COURT: You don't need an Order to say this is the record, if this is, in fact, the record. MR. LAWSON: You know, it's funny. I appeared before a panel years ago, when Justice Compton was there, and he was very firm in saying, "Courts speak through" -- THE COURT: "Their Orders." MR. LAWSON: --"their Orders." Don't tell me what's in the transcript; Courts speak through their Orders. If it was to be part of the Order, then it needs to be made part of the Order. Maybe that's old school, and people still don't look at those things, but Justice Page 13 Compton left an impression on me, and I know he still sits, and he's probably left an impression on a few others. THE COURT: I suspect he has. (Laughter) MR. LAWSON: And so I would argue just the opposite, that the Supreme Court feels strongly that if you are going to say something that's where you do it. And Judge Wetsel is a great example. When he writes an opinion he's got all of these things into them. And I think where we are going is away from the days of affirmed, denied, entered. What they are expecting is some thought process, some decision, and we could do it different ways. We could try to rewrite this thing and incorporate things. I think the simplest way is just simply incorporate the transcript. And I'm not sure what the harm is in putting that in the Order. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a 1 c-4438-90a3-b5f1 f548c3a9 7/14/03 Highview Page 14 1 THE COURT: All right. 1 2 MR. MITCHELL: Your Honor, if I could 2 3 reply. In effect, what is being suggested here 3 4 is we have a forty-six or forty -eight -page 4 5 Order. 5 6 What's reflected in this transcript, 6 7 everything that's reflected in this transcript 7 8 was not the ruling of this Court. 8 9 This was -- that was a dialogue, and 9 10 an argument, and questions by the Court, and 10 11 rhetorical questions, and that's just part of 11 12 the record. 12 13 That's not part of the ruling of this 13 14 Court, and I submit it's improper to put it in 14 15 there. 15 16 With respect to the BZA matter, the 16 17 Court didn't send this case back to the BZA. 17 18 What the Court said is that these people can 18 19 reapply, and we know now what they need to 19 20 submit. 20 21 THE COURT: My recollection was that I 21 22 said that it seemed to me that they didn't have 22 Page 15 1 to apply on a one -by -one, lot -by -lot 1 2 application, that they could do it all as a 2 3 blanket matter, which I thought the County 3 4 agreed with. 4 5 MR. MITCHELL: That's right. We -- we 5 6 said -- just like they did the last time. We -- 6 7 we didn't make them pay a separate fee. 7 8 THE COURT: And Mr. Lawson wants some 8 9 reflection of that? 9 10 MR. LAWSON: I do, Your Honor, because 10 11 I will be -- 11 12 THE COURT: You think there might be a . 12 13 gap between what Mr. Mitchell says and then what 13 14 happens at the next BZA hearing? 14 15 MR, LAWSON: Yes, Your Honor. 15 16 And simply put, I think if the BZA is 16 17 presented with another application, or series of 17 18 applications, or whatever happens, and they've 18 19 got an Order that says, we did it right the 19 20 first time; we denied this thing. 20 21 Then, simply put -- and I think I can 21 22 say this with confidence; this is not something 22 Page 16 I hope happens -- I believe, firmly, it will; we will be right back here again. And again, I think this transcript is part of Your Honor's ruling. We can go another way. We can try to extract all the finer points, and findings, and incorporate it. And I know Judge Wetsel does that. He types them himself. We can certainly do that. If you want to go that route we can do it. I think it's far simpler to attach the transcript. Clearly, things that Mr. Mitchell said or things that I said, on the record, that's not part of Your Honor's ruling, and I don't think anybody would mistake that. THE COURT: Well, people could mistake what I termed to be -- I guess Mr. Mitchell termed it to be rhetorical questions. Sometimes I ask questions taking positions that I don't necessarily believe in. Page 17 I just want to see what you have to say about it, and see if that helps flesh out the thought process. Perhaps f6lks less sophisticated than you all might interpret those differently than what they are intended. Because to me, I oftentimes ask questions that don't reflect what I think about things, but it just is an opportunity to bring forth a dialogue on a subject that will assist me in trying to make up my mind as to what is right. I think my rulings are pretty clear in this case. I think the BZA is not going to get reversed. But I think4here should be some guidance to the BZA, and it seemed to me that that was accomplished in the dialogue that we had in open Court. The County took the position that, yes, they don't have to do them one at a time. They can do it all at one time, the blanket aspect. 5 (Pages 14 to 17) 'Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-gal c-4438-90a3-b5f1 f548c3a9 7/14/03 Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 18 Is that right, Mr. Mitchell? MR. MITCHELL: We -- that's correct, Your Honor. We said they do not have to file a separate application and pay a separate fee for each lot. They could group -- group the lots together, file it with one application fee. They can do all of them together with one application fee, but the BZA will look at it on a lot -by -lot basis. I mean, they've got to look at each lot to see what variance -is needed. THE COURT: It still seems to me that if Mr. Cosheen has an intention to develop all these lots he bought -- is that right, Mr. Lawson? MR. LAWSON: That's correct, Your Honor. THE COURT: And he may not know what a particular buyer wants to do what particular thing. And it's hard to market the property, it seems to me, if he has to wait for each Page 19 particular buyer to come forward and say, I want it this way. Is that right? MR. LAWSON: I think that's very true. THE COURT: But at some point -- and this is what I think I said earlier -- he's got to have some general idea as to what this looks like so that the County can approve it, or disapprove it, or suggest a change here, there, or someplace else. He's going to be melding lots together to create a different footprint, in effect. Is that right? MR. LAWSON: In some cases, Your Honor. In other cases, it would be to build on the existing lots, just like some of the houses THE COURT: So when does the County know what he's going to do? That's really the bottom line here. MR. LAWSON: The County has been presented many alternative plans, and they have 6 (Pages 18 to 21) Page 20 1 been rejected; the simplest of which was the one 2 that was taken to the BZA which showed the 3 recorded lots, showed the imposition of modern 4 setbacks, which of course, just eliminate -- 5 there is no building envelop because they cross 6 one another. 7 And in some cases there were two or 8 three slivers, and I mean slivers; they were two 9 or three feet wide, a building envelop, because 10 of the lot shapes. 11 And that was what was presented to the 12 BZA. 13 THE COURT: Well, when does he plan to 14 put in on paper what he wants to do? 15 MR. LAWSON: And in that presentation 16 what he also showed was a plat that showed the 17 setbacks that were what we argued were 18 grandfathered, which were in the Restricted 19 Covenants. 20 And actually, I think you gave some 21 language to that effect, that somebody put them 22 in there, and they ought to be given some Page 21 1 dignity, and that showed real live building 2 envelops where he could put houses. 3 And the example of the houses were the 4 homes that were already in the development. And 5 that's what was in front of the BZA. 6 What's been presented to the County 7 are other variations where we expand into 8 adjacent parcels. 9 THE COURT: That's what I'm talking 10 about. 11 MR, LAWSON: Yes. 12 THE COURT: Where he is going to make 13 different sized lots he's going to put two lots, 14 three lots together and make them different. 15 MR. LAWSON: And merge it into other 16 acreage that he owns, and so on. 17 THE COURT: Right. 18 MR. LAWSON: And we've been just 19 flatly rejected on that. We've been told, can't 20 do it, because it seems like the biggest issue 21 there is if you are going to expand existing 22 private roads to access those lots, and we said, Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9alc-4438-90a3-b5f1f548c3a9 7/14/03 Highview Page 22 1 well, yeah -- 1 2 MR. MITCHELL: That's -- 2 3 MR. LAWSON: -- that's what we would 3 4 have to do. 4 5 MR. MITCHELL: That's an entirely 5 6 different issue. That's not -- I mean, that's 6 7 what they -- what they submit in the future, 7 8 we'll have to look at what they submit. 8 9 THE COURT: Well -- 9 10 MR. MITCHELL: That is not what was 10 11 submitted before the BZA, and that's not what 11 12 the Court made its ruling upon. 12 13 THE COURT: Right, I understand. But 13 14 obviously, he's going to develop these lots. He 14 15 didn't buy this property to turn around and -- 15 16 MR. MITCHELL: Yes, no question about 16 17 it. 17 18 THE COURT: -- and watch the deer walk 18 19 across the ground. 19 20 MR. MITCHELL: That's right; we 20 21 understand that. 21 22 THE COURT: And it's going to take 22 Page 23 1 some form of development. 1 2 MR. MITCHELL: That's right. 2 3 THE COURT: And it seems to me that 3 4 the BZA has got to get involved in this, in some 4 5 way, because you've got a forty -five -year -old 5 6 subdivision effectively, you know, using the 6 7 imagination someone had forty-five years ago. 7 8 Now you are trying to apply it today 8 9 and it's just not working. 9 10 MR. MITCHELL: Well, it -- 10 11 THE COURT: They weren't contemplating 11 12 building five hundred thousand dollar houses on 12 13 any of these lots forty-five years ago. There 13 14 wasn't a five hundred thousand dollar house in 14 15 Frederick County forty-five years ago. 15 16 MR. LAWSON: Quite honestly, we are 16 17 not necessarily proposing five hundred thousand 17 18 dollar homes. There are needs for two hundred 18 19 thousand dollar homes. 19 20 Frankly, some would argue, there's a 20 21 greater need. 21 22 THE COURT: But it all changes, is my 22 Page 24 point. MR. LAWSON: Sure. THE COURT: And what somebody put on the record forty-five years ago is not going to work now, so you are going to end up having to be back there. And it seems to me that the only thing I can do is rule on the case, as I did before, saying that I don't find they made any errors, but it looks to me like they are going to have to think outside the box a little bit, in order to allow this property to be developed. MR. LAWSON: Who is "they?" THE COURT: I think the BZA is going to have to allow you some latitude, it seems to me, to be able to say, here's my deal, can we approve it, so I can get on with selling these lots and building these houses, or whatever I've going to do with them -- MR. LAWSON: And what we're saying THE COURT: -- instead of waiting for the buyer to come up here and try to buy Page 25 something that's mythical, and then go to the BZA on a house -by -house basis. That will never work. MR. LAWSON: Your Honor pointed out very well that there won't be a buyer under those circumstances. THE COURT: Right. MR. LAWSON: Nobody would do that. Well, what have I bought? I have no idea. THE COURT: Right. MR. LAWSON: So again, I'm kind of back to where we started. I think the Order needs to be expanded. THE COURT: I might do that, to some degree. MR. LAWSON: Okay. THE COURT: I'm not going to incorporate the transcript -- MR. LAWSON: That's fine. THE COURT: -- because it seems to me that that's wrong. Those were not my Court Orders; that was the transcript of the hearing. 7 (Pages 22 to 25) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a l c-4438-9Oa3-b5fl f548c3a9 7/14/03 Highview Page 26 1 It seems to me that Mr. Mitchell's 1 2 Order, I don't have any problem with it, except 2 3 I think there should be some language -- and I'm 3 4 not sure I agree with the language that he's put 4 5 in there, that the BZA is directed, because I 5 6 don't think I direct the BZA to do anything. 6 7 1 either affirm what they've done or 7 8 modify it. There may be some language that I 8 9 can modify. Is that right, Mr. Mitchell? 9 10 There's a couple things I think I can do without 10 11 me getting into the statutes right now. 11 12 MR. MITCHELL: In this case, Your 12 13 Honor, I don't think it really has to do with 13 14 the ruling of the BZA in this case. 14 15 We would have no objection to putting 15 16 in the Order that the County has agreed that if 16 17 this applicant reapplies, it does not have to 17 18 file a separate application for each lot. 18 19 THE COURT: And that they may present, 19 20 in effect, a blanket, or a comprehensive plan? 20 21 I'm not using that term jargonisticly about the 21 22 Comprehensive Land Use for Frederick County. 22 Page 27 1 But they can do something that 1 2 encompasses everything they intend to do, and 2 3 give it to the BZA at one time. 3 4 MR. MITCHELL: Yes. 4 5 THE COURT: That's what I want to 5 6 rule, and I think it's best to have that in 6 7 there, because I agree with Mr. Lawson that if 7 8 it's too skeletal the BZA will say, well, the 8 9 Judge didn't tell me to do anything different. 9 10 I agree with Mr. Lawson, that they are 10 11 likely to go ahead and apply the same reasoning 11 12 in the future, and everybody has sort of agreed 12 13 that they don't have to do that, except the 13 14 members of the BZA, who aren't part of this 14 15 particular proceeding. 15 16 I don't know that you can bind them, 16 17 even though you represent them. 17 18 MR. MITCHELL: Right. 18 19 THE COURT: But it does seem to me 19 20 that some guidance in that Order might help 20 21 resolve this case, and bring it to a conclusion 21 22 that will .be appropriate for everybody. 22 8 (Pages 26 to 29) Page 28 MR. MITCHELL: Your Honor, I have written out what I had -- what I had said the last time that needed to be submitted. And if it's submitted with respect to each lot, it can be -- the whole thing can be submitted all at one time. THE COURT: Right. MR. MITCHELL: And what I said, as to each existing or hereafter approved lot -- in other words, whether it's existing lots or if they combine some lots, it would be with respect to those combined lots. Number one, documentation and approval by the Virginia Department of Health for the sanity sewer system for the lot. Number two, a plat of the lot which would show, number one, location of the sewer system, or if it's off -site, show where it is. And Number two (sic) a footprint of a sample lot appropriate in size for the size of the lot. And -- Page 29 THE COURT: Now what is the -- the Health -- MR. MITCHELL: Now we discussed -- THE COURT: The Health Department thing is the problem, right, Mr. Lawson? MR. LAWSON: Well, it is. I mean -- and I'm sorry to continually bring things up over and over again before Your Honor -- the bottom line is the only thing that is properly in front of the BZA is can we put houses on these lots or some reconfigured lots? And the County knows what they are doing when they inject the next scenario, which is go out there and get health permits. Because what it forces one to do is go out and get a hundred -plus health permits at a cost of many thousands of dollars for each one. All for what? For the chance, just the chance -- and if I understand his words -- the opportunity to make application to the BZA. And the comfort, of course, of what Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com: 9959600f-9a 1 c-4438-90a3-b5fl f548c3a9 7/14/03 Highview Page 30 1 you are going to get out of that, we understand 1 2 is there is no comfort, it's an uphill burden 2 3 and so on. 3 4 So we get the opportunity, after 4 5 spending many thousands of dollars, to appear in 5 6 front of the BZA so that, again, we ask -- 6 7 THE COURT: What do you want to do? 7 8 MR. LAWSON: What we have asked for 8 9 simply was for the opportunity -- and I like 9 10 your language of one separate application 10 11 presenting a comprehensive plan or blanket plan, 11 12 and I understand those are not terms -of -art, so 12 13 we are not getting into other stuff. 13 14 So that the BZA can get a look at this 14 15 thing, and say yeah, that's attractive. We will 15 16 allow setbacks of X size in order to attain X- 16 17 type of unit. 17 18 And then it will be up to us to get 18 19 health permits, and things like that. And who 19 20 knows? Maybe we end up with half the number of 20 21 lots because of health permit issues, or 21 22 separation issues, and so on. 22 Page 31 1 THE COURT: Why can't it be handled 1 2 that way, Mr. Mitchell? That seems to me to be 2 3 more practical. They don't have to spend all 3 4 that money to get a chance. 4 5 MR. MITCHELL: The problem is, Judge - 5 6 - 6 7 THE COURT: That's like putting money 7 8 in a slot machine. You put it in there, and 8 9 maybe it will -= 9 10 MR. MITCHELL: No. 10 11 THE COURT: -- come out, and maybe it 11 12 won't. 12 13 MR, MITCHELL: Uniformly, when a 13 14 person comes into the BZA for a variance, they 14 15 come in with a plan of the house. 15 16 THE COURT: Usually it's the last 16 17 thing. They have done everything else and now 17 18 they need this; is that right? That's usually 18 19 what happens. 19 20 MR. MITCHELL: Well, they've got a lot 20 21 that they want to build on, and they can't 21 22 -- they -- 22 Page 32 THE COURT: And they know it will perk, and they know this, and they know that. MR. MITCHELL: The fact of the matter, Judge, is this is not a public sewer project. This is -- this is drain fields on -site or -- THE COURT: Right; it's an old subdivision. MR. MITCHELL: The ability to be able to locate drain fields will determine what -- what lots can be built upon, and the -- and how those lots have to be configured. THE COURT: Or whether two or three of them are joined together to create one big lot that would have an appropriate drain field on it. MR. MITCHELL: For example, if they go out there and did this hundred and some acres, and found fifty drain field sites, well, they can't -- what good would it do for the Board of Zoning Appeals to be considering a lot application for a hundred and sixty lots? There aren't going to be a hundred and Page 33 sixty lots -- houses. There's only going to be fifty houses. THE COURT: But they couldn't build on -- if the BZA approved it, they couldn't build on them without the health permit anyway. MR. MITCHELL: Right. And until -- THE COURT: And they don't need the BZA's approval to get the health permit; do they? MR. MITCHELL: No, they -- THE COURT: But they still can't build on it if they don't have the health permit. MR. MITCHELL: Right, which means they're going to have to get that anyway. They are going to have to locate these drain field sites in order to be able to determine where the houses go. And that's going to determine your lot lines. THE COURT: But the problem is that if they go dig all the holes first, and then you guys say, no, we're not going to do this, then 9 (Pages 30 to 33) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a 1 c-4438-90a3-b5f1 f548c3a9 7/14/03 Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 34 he's wasted all that money digging all the holes. MR. MITCHELL: Right. If -- if -- but the situation is, Judge, if they -- if they locate the drain fields, arrange their lot lines, and come into the BZA with a whole bunch of lots, they will look at each one. Here is the lot, here's the drain field, here's where we say we're going to put the house. We need a seventeen -foot variance on this. THE COURT: You guys are smart guys, smarter than me. And I'll tell you this; it seems to me that what I've heard is something that should be capable of being figured out. There has got to be a way to do this, other than the polar opposites that I'm being presented with here. What is the middle ground, Mr. Mitchell? MR. MITCHELL: Well, specific -- Judge, the -- we felt like that that was a Page 35 reasonable approach, by saying you -- you -- if you put a sample footprint of a house on the lots -- THE COURT: Whether it actually goes there or not? MR. MITCHELL: Whether it actually goes there or not, you put a sample footprint there. That will enable the Board of Zoning Appeals, with a sample footprint of the house and the drain field, to know how much of a variance it has to grant, if any, in order to be able to make it THE COURT: And right now most every lot is unbuildable because the new County setbacks render the lot unusable, in effect. MR. MITCHELL: Most of them would be if they are kept in their present configuration. THE COURT: So they are, obviously, going to be not kept in their present configuration. MR. MITCHELL: They told the BZA in 10 (Pages 34 to 37) Page 36 1 the last -- 2 THE COURT: And you say that's not the 3 BZA's call, that's Mr. Lawson's client's call, 4 how he wants to reconfigure. 5 MR. LAWSON: Sure. 6 THE COURT: And you're saying give us 7 a look-see, and then we will approve it, wink, 8 wink? Is that what you are saying? 9 MR. MITCHELL: I don't know what you 10 mean by, "wink, wink," but we'll look at it and 11 see how much of a variance is needed to grant 12 the variance. 13 THE COURT: But you all haven't agreed 14 on much in the case up to this point. 15 MR. MITCHELL: Well, we don't know 16 what the proposal is. We don't know for any 17 given lot. 18 Judge, in April of 2004, the Supreme 19 Court of Virginia decided three BZA cases. And 20 they said -- what they said in those cases is 21 that the BZA cannot consider granting, a variance 22 until they find that there is an Page 37 1 unconstitutional restriction on the use of the 2 property by operation of the Zoning Ordinance. 3 That's the threshold question that 4 they have to look at. 5 Then it says, then and only then does 6 the BZA have -- have discretion. And that 7 discretion is how much of a variance to grant. 8 THE COURT: Right. 9 MR. MITCHELL: And so -- but if they 10 come -- if they present to the BZA a -- the 11 plans for the -- the full plans for building a 12 lot with a drain field, and a sample house, and 13 show that there is an unconstitutional 14 restriction or hardship, with respect to not 15 being able to build that house with the given 16 setbacks, and the Board of Zoning Appeals deny 17 it, then that gives them the basis to have this 18 Court reverse that. 19 We are not -- we don't want to be back 20 up here. We'll be back up here, as 21 Mr. Lawson says, if they submit the same thing 22 they did before. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com: 9959600f-9alc-4438-90a3-b5flf548c3a9 7/14/03 Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 38 THE COURT: I don't want you all back up here again, that's why I'm having this extended conversation right now. Because otherwise, all we are here for me to do is to enter an Order, and I can do that in five minutes. MR. MITCHELL: Right. THE COURT: That's not a problem. But what I say is, how can we solve this? Where is the middle ground for you, Mr. Lawson? Mr. Mitchell says the middle ground is, give me a developed, configured arrangement, and we will likely work it out. MR. LAWSON: And I hear those words THE COURT: That's what you said. Give me a plan first, and then we'll do it. MR. LAWSON: I hear those words, but what the practicality of that is is spend several hundred thousand dollars doing soil work, then come in for the real issue, because don't forget, what is the issue? Page 39 THE COURT: Is it all scale up there? MR. LAWSON: I believe it is, Your Honor. THE COURT: So you are going to have trouble finding a drain field to set? MR. LAWSON: Your Honor, there all kinds of drain fields, whatever amount of work you want to put in. There are mound systems, there's these peat systems, there are these puri-flow, and zillions and zillions of things, and they are all scientifically wonderful. THE COURT: And they all work, but they are expensive. MR. LAWSON: They all evolve around and start with very expensive, detailed tests. And they will all tell you we need to first know. And the thing that really troubles me about this is what is the issue here? The issue is setbacks. Drain fields don't have anything to do with setbacks. We are talking about building restriction lines. Drain fields are hone:703-837-0076 Fax:703-837-8118 Page 40 1 underground. What we are talking about here is 2 where is this house going to go, where can it 3 fit. 4 And the County starts off by saying, 5 we're with you, we'll allow you to do that. 6 Show us the house plan, and if it's going to be 7 attractive, and we'll let you have ten -foot 8 setbacks or whatever, as opposed to thirty, or 9 fifty, or whatever the magic number is. 10 And then they slip in, and we want 11 drain fields, too. I don't understand. I mean, 12 the argument is what good would it do for these 13 houses? I would argue just the opposite. 14 What harm would it do to approve 15 places where structures can go, and then, if we 16 find out we can't support them with certain 17 types of drain fields, or the science is such, 18 and the math is such that we can't do it, then 19 you're right, instead of a hundred houses it 20 will be fifty, twenty, or what have you. 21 What harm is -- 22 THE COURT: But where is the middle Page 41 1 ground? This is the same -- you all just 2 articulated again the polar positions. 3 MR. LAWSON: The middle ground is -- 4 THE COURT: Where is the middle 5 ground? 6 MR. LAWSON: Let's get back to why 7 we're here. We are here -- 8 THE COURT: Well, I can do that, but 9 that doesn't solve anything. I want to know 10 what the middle ground is to solve the thing. 11 MR. LAWSON: Again, why we're here is 12 setbacks. It has nothing to do with drain 13 fields. 14 Why we're here, and what I thought you 15 were saying, is submit to the BZA your house 16 plans on these lots, or if you want to 17 reconfigure them, reconfigure them, that show a 18 defined benefit to BZA. 19 If you give us the setbacks, I'll give 20 you X-house with side -load garage, and this 21 design, and so on, and we'll work it the other 22 way and show that under the old setbacks we 11 (Pages 38 to 41) CASAMO & ASSOCIATES, INC. www.casamo.com Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a1c-4438-90a3-b5f1f548c3a9 7/14/03 Highview Page 42 1 can't do it, because the lines cross each other. 1 2 And then the BZA, hopefully, approves 2 3 that, and we do appreciate the County's gesture 3 4 of you can do this all en masse. 4 5 And then it is -- we understand the 5 6 rules. We've got to go out and get drain 6 7 fields. It's science, actually. 7 8 It has nothing to do with the County's 8 9 approval process, it's a division of the state, 9 10 actually, that looks at your drain fields and 10 11 tells you whether you can do it or not. 11 12 And why that's in front of the BZA 12 13 is beyond me, because it is the State Health 13 14 Department that mandates what types of drain 14 15 fields can be put where, where the separations 15 16 are, and so on. 16 17 And I think it, frankly, just muddies 17 18 up the BZA record. And if we get them, good for 18 19 us. The BZA gets the house that we showed them 19 20 with X setbacks and so on. 20 21 If we can't get those, or the math is 21 22 such that we just can't afford to do it, then 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 43 the County is not harmed, there is not going to be a home there. But if we work it the other way, we are spending -- and I believe I'm correct on this -- it's on the magnitude of several hundred thousand dollars to work all of this up, all for the opportunity to walk in and it's a crap shoot. And if Your Honor really wants this to end, I think we need to let the BZA deal with BZA things, which are setbacks. Let the Health Department deal with Health Department things which doesn't, thankfully, come before you; that's science. And there are approved drain fields and so on. I'm just not sure why we are injecting a State Health Department function into this Circuit Court record. THE COURT: Mr. Mitchell, he's asking a question. MR. MITCHELL: Judge, one would wonder where they are going to show the house location 12 (Pages 42 to 45) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 44 on a lot if they don't know where the drain field is. And that, again, the -- it is shale land up there. And there is going to be issues about locating drain fields. And so what -- what they want to do is to go in and have the BZA, in the abstract, not with any indication that these are going to be the actual lots that are going to be built upon, to -- to grant some variances. And then they go out and locate the drain fields, and all of a sudden, the lot lines have to change, the location of the houses have to change. THE COURT: Do they have to come back to the BZA? MR. MITCHELL: Now what are they going to do then? THE COURT: Come back to the BZA and change it? MR. MITCHELL: Are they going to contend that the variances that the BZA granted Page 45 are going to apply to those reconfigured lots, which variances may not have even been needed then? And so the fact of the matter is the location of the drain fields is something that this owner is going to have to do to develop this property anyway. THE COURT: At some point. MR. MITCHELL: At some point; that's right. And I think regularly, when a matter comes before the BZA every -- the information is there to say, okay, here's the drain field, here's where the house is going to be, this is why we need this much of a variance. And I THE COURT: What if they do that, the typical, regular applicant for relief comes in and says, here's where the house is, here's where the drain field is, this is what we want? You guys say, fine, got it, grant the variance. Then he starts doing it, and he can't get the drain field there, he's got to move it, Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a 1 c-4438-9Oa3-b5fi f548c3a9 7/14/03 Highview Page 46 Page 48 1 so he moves it someplace else. 1 scientist who gets up and certifies that I can 2 Does he have to come and ask you for 2 put a three -bedroom here, or a four -bedroom 3 permission to do that? 3 here, and so on. 4 MR. MITCHELL: The BZA? No, because - 4 And they want us to do all of that i 5 - because the -- 5 before they will tell us if we can put house one 6 THE COURT: So you don't care -- 6 on this property. 7 MR. MITCHELL: The drain field can be 7 THE COURT: So where is the middle 8 located in the setback. 8 ground here, Mr. Mitchell? 9 THE COURT: You don't care where he 9 MR. MITCHELL: Judge, I think -- 10 draws a picture on the plat of the drain field, 10 THE COURT: I don't think it's 11 whether it is actually reflective of reality, or 11 reasonable to require these guys to spend two or 12 not. 12 three hundred thousand dollars to tell you where 13 MR. MITCHELL: The point is, when you 13 they might be able to put drain fields before 14 get -- when you get the permit from the Health 14 you tell them they can build the house. 15 Department it locates the drain field. 15 That doesn't seem fair. 16 THE COURT: And if it locates it in a 16 MR. MITCHELL: Well, Judge, I -- I 17 different place then what they showed you, does 17 just -- I -- 18 that vitiate the setback? 18 THE COURT: I mean, that just doesn't 19 MR. MITCHELL: No. But what we're 19 seem right. There has got to be some different 20 saying is -- 20 way to do that. 21 THE COURT: You are saying, just draw 21 MR. MITCHELL: Well, Judge, I -- I -- 22 a picture anywhere of the drain field? 22 the problem is, and I don't want to keep saying Page 47 Page 49 1 MR. MITCHELL: No. 1 it over again, but we are not going to know 2 THE COURT: You don't have to do any 2 where these lot lines are going to be, and where 3 tests, just draw a picture? 3 the houses can go, until they know -- until they 4 MR. MITCHELL: No. 4 -- until the Virginia Department of Health 5 MR. LAWSON: Your Honor, I hate to 5 issues a permit that says, okay, drain field 6 interject reality into this thing, or 6 here, drain here there, drain field there. 7 practicality, but Frederick County allows you to 7 THE COURT: But you guys don't need to ; 8 have drain fields off -site. They don't have to 8 know where their drain fields are; do you. 9 even be on your lot. 9 MR. MITCHELL: No. Only in the sense, 10 THE COURT: Oh, I understand. 10 Judge, that there is on this lot that they are 11 MR. LAWSON: So -- 11 asking the BZA to -- to find that there -- 12 MR. MITCHELL: That's right. 12 THE COURT: Right, that there is a 13 MR. LAWSON: If -- 13 hardship. 14 THE COURT: Why do you say then you 14 MR. MITCHELL: That there is a j 15 have to go, if that's the way the rubber meets 15 hardship, that we have -- we have -- in order to 16 the road, why do you say you have to spend two 16 build a house on this lot that they intend to 17 hundred thousand dollars to draw that picture of 17 build on, that the setbacks create the hardship. 18 where you are going to try to put the drain 18 Well, you don't know what that -- what 19 field? 19 that lot is until they have located drain 20 MR. MITCHELL: I'm saying -- 20 fields. Because unless they can -- unless they 21 MR. LAWSON:. The soils work. They 21 can sewer the lot, there can't be a house built 22 want the scientific work. They want the 22 on that lot. 13 (Pages 46 to 49) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a 1 c-4438-90a3-b5f1 f548c3a9 7/14/03 Highview Page 50 1 So they are asking the BZA to, in 1 2 effect, do an advisory -type thing that if you 2 3 can locate the drain field, then you can build a 3 4 house there. 4 5 And the -- you know, .the BZA has to 5 6 =- under the Supreme Court decision, the BZA has 6 7 to be able to show that there is a -- 7 8 THE COURT: A hardship. 8 9 MR. MITCHELL: -- in reality, an 9 10 actual hardship. 10 11 THE COURT: I understand. And I think 11 12 he's got a hardship in this case, and it just 12 13 seems to me it comes down to the question of how 13 14 you all are going to approach it. 14 15 Do you put your money up at the 15 16 beginning, at the middle, or at the end? 16 `17 Is that right, Mr. Lawson? 17 18 MR. LAWSON: Well, it is, but it's not 18 19 as simple as that. Because if it were, we'd go 19 20 out and locate a massive drain field -- 20 21 THE COURT: Put them all there. 21 22 MR. LAWSON: -- and say, this is where 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 51 it is. THE COURT: Why can't you do that? MR. LAWSON: I think because, you know, what do we say, cart before the horse? You need a house before the drain field, because that's where the stuff comes from that goes in the drain field. THE COURT: Right. MR. LAWSON: We don't even have an idea -- right now we have a very good idea of what the BZA will approve; zero houses. So what kind of drain field are we going to go out and try to find and locate for zero houses? Well, that's easy; zero. We are not doing a drain field. Now if we go to the BZA, and they give us two or three houses, that gives us some definition to this thing. If they go out and give us a hundred houses, that gives us some definition to this thing. And it is all driven by, in terms of 14 (Pages 50 to 53) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 52 where the drain fields are, what kinds they are, what science do you need to do, what testing do you need to do, because don't forget, there are different types of drain fields, and they all require different kinds of setup, different kinds of testing, soil determinations, and so on. And I still don't understand why do we need to show THE COURT: Anything about a drain field. MR. LAWSON: -- a drain field on a lot in order to define a lot, if it's been established the drain field could be two lots away? I live in a neighborhood where -- which I think is a nice neighborhood -- THE COURT: I don't quite understand that either. MR. LAWSON: -- where my neighbors have drain fields above us. THE COURT: But I think I do Page 53 understand that the BZA, before they take an action for variance, they like to have as much information as possible about -- MR. LAWSON: Sure. THE COURT: -- what it's going to look like when it's all finished. And it's hard to know what it's going to look like when it's all finished if you can't tell them where the drain field is. Isn't that right? MR. MITCHELL: Well -- THE COURT: Well -- MR. MITCHELL: Let me be clear. They don't have to build a drain field, of course. They get a Virginia Department of Health permit. THE COURT: Right. MR. MITCHELL: And if it's a mass drain field, as they say, if they get a permit that's a mass drain field, they come into the BZA and say, okay, we've got a Virginia Department of Health Permit for a mass drain field and we can serve these thirty lots. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a 1 c-4438-90aM VI f548c3a9 7/14/03 Highview Page 54 1 Okay. Here is the lot, here's the -- 1 2 here's the sample house that we're going to put 2 3 on it, that's fine. The drain field doesn't 3 4 have to be on the lot. 4 5 It's just the fact that there is, in 5 6 fact, a lot that's going to be built upon that 6 7 they are asking for this variance in order for 7 8 us to find whether it is, in fact, a hardship. 8 9 THE COURT: Will you redo your Order, 9 10 Mr. Mitchell, and put some language in there 10 11 about binding the County, or indicating the 11 12 County's assent, or agreement in the procedure 12 13 that we just talked about in terms of the 13 14 blanket submissions? 14 15 MR. MITCHELL: That there wouldn't 15 16 have to be individual lots submitted? 16 17 THE COURT: That's right. And that a 17 18 comprehensive or en masse submission, with a 18 19 location of a proposed drain field, or a system 19 20 that -- what language do you want, Mr. Lawson? 20 21 It was not a drain field, but it was a -- 21 22 MR, LAWSON: I don't know that -- 22 Page 55 1 THE COURT: Some sort of disposal 1 2 system. 2 3 MR. MITCHELL: Just a sanitary sewer 3 4 system. 4 5 MR. LAWSON: You have carefully chosen 5 6 words to avoid terms -of -art on the first part -- 6 7 THE COURT: Right. 7 8 MR. LAWSON: -- which was, what is a 8 9 comprehensive plan, and so on. 9 10 THE COURT: Right. 10 11 MR. LAWSON: I'm not sure what those 11 12 similar words would be for a proposed drain 12 13 field. 13 14 THE COURT: I want to enter 14 15 Mr. Mitchell's Order, but I want to expand it to 15 16 include an addressing of the matters contained 16 17 in paragraph B of your Order. 17 18 But I don't want to make the BZA to be 18 19 directed, because I don't think I'm directing 19 20 the BZA. 20 21 MR. LAWSON: I understand. And again 21 22 -- 22 1 'Phone: 703-837-0076 Fax:703-837-8118 Page 56 THE COURT: I want to address that problem so that your man can get into a position where, it seems to me, that he can simply give them a big picture, saying this is what I want to do, and this is where I want to put the drain fields. MR. LAWSON: If it will help; we don't mind saying that if you allow this configuration the drain fields are going to run in this general location. THE COURT: Right. MR. LAWSON: What we don't want to do is then walk into the next trap -- and forgive me, but I have experience -- where the County walks in and says, you haven't done it right. This is science, after all; the Health Department works on science. You need to have soil studies. You need to have an expert who will certify, and X number of -- and then, all of a sudden, we trigger all of this stuff. THE COURT: It doesn't seem to me that's necessary in order for them to grant a Page 57 variance on your setbacks. But if your drain field location that propose,to them, that you represent to the BZA, or represent to the County is going to change after they have approved a certain setback, it seems to me that approval is contingent upon ' what you do looking just like what you told them you were going to do. MR. LAWSON: Now how do we -- THE COURT: If it changes, it just looks to me that that should vitiate the approval. MR. LAWSON: Just out of curiosity -- THE COURT: Is there any possibility of doing it that way, Mr. Mitchell? MR. MITCHELL: I'm not sure I understand. THE COURT: Well, you say -- MR. MITCHELL: We're not -- the BZA is not going to require additional studies if they come in with a Virginia Department of Health Permit; that's it. We accept that on its face. 15 (Pages 54 to 57) CASAMO & ASSOCIATES, INC. www.casamo.com Court Reporting, Video Depositions, Trial Presentation && Web Design info@casamo.com 9959600f-9a 1 c-4438-90a3-b5f1 f548c3a9 7/14/03 Highview 1 Page 58 THE COURT: And if they don't, if they 1 2 just say, this is where we want to try to do it, 2 3 and if we want to try to do it in this way, then 3 4 we need these setbacks so we can go ahead and 4 5 start trying to do it this way, don't give you 5 6 the approval to begin with, but give you the 6 7 approval at the end of the day, after you've 7 8 approved the variances with regard to the site? 8 9 MR. LAWSON: Why can't it be 9 10 contingent -- sorry to interrupt, but trying, to 10 11 find middle ground. Why can't it be -- we'll 11 12 show the general area -- we think we know our 12 13 property -- where it will be? 13 14 Why can't the BZA approve this 14 15 contingent on us actually doing the science and 15 16 siting the drain fields in X locations? 16 17 THE COURT: Well, what if the BZA, 17 18 after they approve the variance, this is the 18 19 next thing -- after they approve your variance 19 20 based upon you not spending the money first -- 20 21 MR. LAWSON: Yes. 21 22 THE COURT: -- and then you spend the 22 Page 59 1 money, and it doesn't work out, it's not 1 2 approved by the Health Department? 2 3 MR. LAWSON: Yes, sir. 3 4 THE COURT: Does the BZA then go back? 4 5 What can they do at that point? 5 6 MR. LAWSON: They can do that. I 6 7 would argue they don't have to that. They could 7 8 do that, that's fine, and we'll agree that we've 8 9 got to appear back before them, or before some 9 10 governmental authority. 10 11 But I would argue that it doesn't 11 12 matter. 12 13 If the Health Department says -- and 13 14 that's how I argued this to begin with -- if 14 15 they approve us for a hundred houses, and we 15 16 can't get drain field one, no adverse thing has 16 17 occurred because we can't approve it. 17 18 So if we go to that level, we can't 18 19 get the drain fields, then we've got a choice; 19 20 we either have got to go back to the BZA, 20 21 produce the science, and say, we need to get 21 22 your permission, or if we don't, we've got 22 16 (Pages 58 to 61) Page 60 nothing, and it's by our own making, and that's a contingency that we've agreed to. It puts all the control in the BZA, and in the County, and I'm not sure -- THE COURT: Once the BZA acts can they act with contingencies, 'Mr. Mitchell? Can they grant variances with contingencies? They can, can't they? MR. LAWSON: They do it all the time. THE COURT: They can say, you have to put seventy-five evergreen trees up here in order for this to work. MR. MITCHELL: Well, no, the BZA doesn't really get into that, the Planning would get into that on a subdivision, Your Honor. THE COURT: I thought I had a BZA case the other day where they said they had to put screens up. It happens all the time; doesn't it? MR. LAWSON: Your Honor, if you get permission for a deck, and then all of a sudden you go to build the thing, it's seven feet or Page 61 whatever, and you've got the variance for that, and you find out you need to be seven and a half feet, you've got to go back. You've got to go back and get that second approval. And so if we are locked in, if we don't have it, we're through. Now it's our opportunity to appear back before them and ask for the variance. THE COURT: Let me ask you this; if that's the way it works out, what precedent does this set for the rest of Frederick County, because I'm sure that's what the planners and the County is more concerned about than these particular lots. Is that right, Mr. Mitchell? MR. MITCHELL: Well, there is concern. THE COURT: Because you've got twenty thousand approved lots out there for building; right? And so if you do something in this guy's case, you know what you are going to hear next week; well, you did it for him, why don't you do Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a 1 c-4438-9Oa3-b5fl f548c3a9 7/14/03 Highview Page 62 1 it for me? 1 2 And I think that's got to be part of 2 3 the County's thinking, in terms of how they 3 4 approach all of these matters. 4 5 MR. LAWSON: I would think, number 5 6 one, it's a heck of a precedent to set that if 6 7 you've got the ability to see this through the 7 8 'process, namely the BZA, the Courts, back to the 8 9 BZA again, and you've also got the adjoining 9 10 property that you can merge into, and use for 10 11 drain fields and so on, and all the other 11 12 factually -specific issues that are balled up in 12 13 this case, then you've established a precedent. 13 14 I would venture to say -- and I don't 14 15 pretend I know everything in Frederick County or 15 16 about its ground -- but these are very, very 16 17 unique circumstances. 17 18 And as I understand the BZA, they hear 18 19 each case on its own merit. 19 20 THE COURT: That's a good argument, 20 21 Mr. Lawson, but everybody is going to come in 21 22 and say, we have unique circumstances. 22 Page 63 1 MR. LAWSON: And that's why the BZA 1 2 hears each one individually on its merits. 2 3 THE COURT: I understand. 3 4 MR. MITCHELL: Judge, I may be -- I'd 4 5 be willing to go talk with the County to see if 5 6 they -- I need to do a little research, but to 6 7 see if it would be satisfactory to say that if 7 8 they submit the application, the BZA variance 8 9 application for the lot as they intend to use it 9 10 -- 10 11 THE COURT: All right, without the 11 12 approvals. 12 13 MR. MITCHELL: Without the Virginia 13 14 Department of Health approval, and that the BZA 14 15 would act on that, conditioned upon there being 15 16 a Virginia Department of Health Permit issued to 16 17 serve that lot as configured. 17 18 THE COURT: Right. 18 19 MR. MITCHELL: And that -- 19 20 THE COURT: So that if it's going to 20 21 be changed then they've got to come back. 21 22 MR. MITCHELL: If it's going to be 22 'Phone: 703-837-0076 Fax:703-837-8118 Page 64 changed then the variance does not apply. THE COURT: If you check with your client, and you think that's all right, then you go ahead and flesh out that second paragraph. MR. MITCHELL: Okay. THE COURT: B on your Order. Add that language into that paragraph. Taking Mr. Lawson's Order, it's paragraph B. That's where he's put it in, and that basically is your paragraph B, isn't it? Just add it in there. MR. MITCHELL: Okay. Either that, Judge, or -- THE COURT: Wherever you want to put it. I want it reflected in the Order, because I think that that will solve the problem, and we'll get this gum off our shoe. Then everybody is going to be fine. And it does seem to me that Mr. Lawson has a good point about the uniqueness of this particular subdivision. I don't think you are going to find Page 65 too many more that were started in 1962, do you think? There aren't too many more out there. MR. MITCHELL: Well, there are some, but we will just have to deal with those as we get them. THE COURT: Most of those are Marjeck (phonetically); aren't they? And I'm still suffering nightmares from the one Title exam I had to do on Marjeck property. And I think you gave that to me when I was a raw rookie, back in the early 74s, and I said, I don't like this, at all. (Laughter) THE COURT: Who knows what this is? MR. MITCHELL: Right. THE COURT: Have you gotten into that, Mr. Lawson? Have you ever done a Title on Marj eck? MR. LAWSON: Not on that one, but I did used to work for Chicago Title. I've seen them. THE COURT: I know that, but Marj eck 17 (Pages 62 to 65) CASAMO & ASSOCIATES, INC. www.casamo.com Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9a l c-4438-90a3-b5fl f548c3a9 7/14/03 Highview Page 66 1 is unbelievable. I still don't think they have 1 2 -- I mean, it's just a mountain; isn't it? 2 3 MR. MITCHELL: Yes. 3 4 THE COURT: It's just a mountain out 4 5 there, and it's unbelievable. 5 6 MR. MITCHELL: Joe Massey did that. 6 7 THE COURT: Joe Massey. 7 8 MR. MITCHELL: He did that subdivision 8 9 and I saw once Joe's Title notes on that, and it 9 10 had arrows and colors. 10 11 THE COURT: It amazing. And I think 11 12 they probably dug up some dead Indians up there 13 somewhere. It's amazing. 12 14 Well, does this help, Mr. Lawson? Do 13 15 you think we've settled this thing, in effect? 14 16 MR. LAWSON: I do appreciate your 15 17 indulgence. I think we are going in the right 16 18 direction. 17 19 THE COURT: I want you to get it done 18 20 right so you can get on to other things. 19 21 MR. LAWSON: I do appreciate that. 20 22 THE COURT: All right. Thank you, Mr. 21 Page 67 1 Mitchell. I appreciate your work and your 2 opinions. 3 And I will hold these Orders. You all 4 are going to get me this in the next couple 5 weeks probably? 6 MR. MITCHELL: Yes. I'll prepare an 7 Order and give it to Mr. Lawson, and if it's 8 okay, we'll send it in. 9 THE COURT: Do we have to have another 10 Order on this other case, too? 11 MR. MITCHELL: Right. Let me give you 12 that, Your Honor. 13 THE COURT: Why don't you all bring it 14 to me, whatever you all want, have them all 15 endorsed. 16 MR. LAWSON: Just do them at the same 17 time? 18 THE COURT: At the same time. 19 Is that all right, Mr. Mitchell? 20 MR. MITCHELL: Judge, now that you 21 mention that -- 22 MR. LAWSON: Because that one was 18 (Pages 66 to 68) Page 68 contingent on this one. THE COURT: There's one in the file. I've got one in the file unendorsed by anybody. MR. MITCHELL: This would be this Order, Your Honor, which would be a Final Decree in the other case. That would be entered after the Final Decree is entered in this case. THE COURT: Right. Why don't you all hold them and give them to me all at once, and I will sign them at the same time, if that's okay. MR. LAWSON: I think that works, Your Honor. THE COURT: Okay. Thank you, gentlemen. MR. LAWSON: Thank you, Your Honor. THE COURT: Thank you. (Whereupon, at approximately 11: 15 o'clock a.m., the hearing in the above - entitled matter was concluded.) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 9959600f-9al e-4438-90a3-b5fl f548c3a9 7/14/03 Highview A 6 ability 32:8 62:7 able 24:16 32:8 33:16 35:13 37:15 48:13 50:7 about 7:2 8:11 10:21 17:1,8 21:10 22:16 26:21 39:18,21 40:1 44:5 52:10 53:3 54:11,13 61:14 62:16 64:20 above 52:21 68:19 above -entitled 1:15 abstract 44:7 accept 57:22 access 21:22 accomplished 17:17 acreage 21:16 acres 32:17 across 22:19 act 60:6 63:15 action 5:17 53:2 acts 60:5 actual 44:9 50:10 Actually 20:20 35:4,6 42:7,10 46:11 58:15 add 64:6,11 additional 57:20 address 5:3 5 6: 1 addressing 55:16 adjacent 21:8 adjoining 62:9 adverse 59:16 advisory -type 50:2 affirm 26:7 affirmed 6:3,10,11,22 8:13,16,18 10:8 13:13 afford 42:22 afresh 11:3 after 8:1,2 11:4 30:4 56:16 57:5 58:7,18 58:19 68:6 again 8:11 9:19 11:3 16:2,3 25:11 29:8 30:6 38:2 41:2,11 44:3 49:1 55:21 62:9 ago 4:8 12:12 23:7,13 23:15 24:4 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www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com August 4, 2004 - Highview 1 I 2 3 4 5 6 7 9 :1 0 11 12 13 14 15 16 17 18 19 20 21 22 V I R G I N I IN THE CIRCUIT. COURT OF FREDERICK COUNTY - - - - - - - - - - - - -x HIGHVIEW ONE, L.L.C., Plaintiff, -vs- BOARD OF SUPERVISORS OF FREDERICK COUNTY, Defendants. - - - - - - - - - - - - -x In Chancery: and 03-415 Page 1 03-318 Wednesday, August 4, 2004 Winchester, Virginia The above -entitled matter came on to be heard before THE HONORABLE JOHN R. PROSSER, JUDGE, in and for the Circuit Court of Frederick County, Virginia, in the Courthouse, Winchester, Virginia, commencing at approximately 9:00 o'clock a.m., when there were present on behalf of the respective parties: Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 00373db-9020-454f-a4le-006bb Mb8a August 4, 2004 - Highview 1 2 3 4 5 0 7 E:3 0] 10 11 12 13 14 15 16 17 18 19 20 21 22 Appearances: On Behalf of the Plaintiff: THOMAS M. LAWSON, ESQUIRE Lawson & Silek 160 Exeter Drive Suite 103 Winchester, Virginia 22603 (540) 665-0050 On Behalf of the County: ROBERT T. MITCHELL, JR., ESQUIRE 9 East Boscawen Street Winchester, Virginia 22603 (540) 662-3200 Page 2 Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a4le-006bb7f76b8a August 4, 2004 - Highview Page 3 1 P R O C E E D I N G S 2 (Whereupon, the court reporter was 3 duly sworn by Judge Prosser.) 4 (Whereupon, other matters were 5 taken up by the Court.) 6 THE COURT: Mr. Mitchell, you only 7 have one thing, don't you? 8 MR. MITCHELL: Yes, sir, and it 9 shouldn't take a half a hour. It's for entry of 10 orders in two cases where the Court has already 11 announced its decision. 12 Your Honor, if we could take the 13 Chancery 03-415 case first. 14 THE COURT: Which one are you taking 15 first? 16 MR. MITCHELL: 03-415, Your Honor. 17 THE COURT: All right. 18 MR. MITCHELL: Your Honor, I filed 19 with our notice of the hearing today a proposed 20 Final Decree in this case. 21 THE COURT: All right. 22 MR. MITCHELL: I received from Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 4 1 Mr. Lawson yesterday a draft of a Final Decree. 2 I would like to go through my Decree, Your 3 Honor, and point out the areas where there is 4 some difference between my Decree and 5 Mr. Lawson's Decree. 6 MR. LAWSON: I actually, if it helps, 7 Your Honor, have a red line. We tried to work 8 off Mr. Mitchell's form. 9 THE COURT: Okay. 10 MR. LAWSON: If I could present -- 11 THE COURT: Sure. Does Mr. Mitchell .12 have a copy of it? 13 MR. LAWSON: Well, he's got my 14 original, but I've got a red line that may help 15 him. 16 MR. MITCHELL: Your Honor, if I could 17 refer you to my draft of the Decree -- 18 THE COURT: All right. 19 MR. MITCHELL: -- and you might have 20 Mr. Lawson's beside it. 21 THE COURT: All right. 22 MR. MITCHELL: In page two of my Draft Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 00373db-9020-450-a4le-006bb7f76b8a August 4, 2004 - Highview Page 5 1 1 Decree, paragraph B, this is under the areas of 2 the findings of the Court. 3 The first clause of that sentence I 4 have said, "The Plaintiff has not shown to the 5 satisfaction of the Court that the Board of 6 Zoning Appeals applied erroneous principles of 7 law." 8 He does not include that in his 9 Decree. Your Honor, that's merely the statutory 10 standard for review of a BZA case. 11 THE COURT: Right. .12 MR. MITCHELL: And that's the reason I 13 have it in there. 14 THE COURT: All right. 15 MR. MITCHELL: Moving on to the actual 16 Decree of the Court, there is no disagreement 17 until we get down past the numbered paragraphs. 18 This has to do with the discussion 19 which occurred at the last time we met on this 20 case, about the procedures that the County would 21 use. And we don't believe, in this case, the 22 Court has the authority to order us to do Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 6 1 1 anything. 2 THE COURT: Right. 3 MR. MITCHELL: We were prepared to 4 advise the Court, on the record, as to how -- 5 the procedures that we would follow. 6 So consequently, the first part of 7 that paragraph, the first clause, it says, "The 8 County has advised the Court that in recognition 9 of the fact that this subdivision,.approved in 10 '62, and the Plaintiff owns over a hundred acres 11 -- lots in the subdivision," we think that's an 12 appropriate way to state this for the Court. 13 Apparently, there is no difference 14 down through subheading number three. 15 Mr. Lawson stops his there. 16 And we are telling -- relaying, on the 17 record, how we will do this. So number four is, 18 "The variance granted for the lot shall apply 19 only to the lot and configuration shown on the 20 plat submitted to the BZA." 21 That would, clearly, be the case. It 22 wouldn't transfer to any other -- any other Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 00373db-9020-454-a4le-006bb7f76b8a August 4, 2004 - Highview Page 7 1 1 reconfiguration of the lot. 2 We point out the fact that this 3 applies to application for variance on lots in 4 this subdivision, or lots resulting from a 5 consolidation of lots in the subdivision. And 6 then we go on to say, "Except to the extent they 7 may be modified above, the existing regulations 8 for variance applications shall apply, and the 9 BZA will consider it in the normal manner." 10 THE COURT: Right. 11 MR. MITCHELL: I think this order, 12 this Final Decree, is absolutely consistent with 13 the Judge's rulings, and I think it's a proper 14 statement in the proper form, and I would ask 15 the Court to enter it. 16 THE COURT: All right. Mr. Lawson, 17 why don't you like number four? That seems to 18 be the real crux of your situation. 19 MR. LAWSON: We have added some 20 language, Your Honor, to try to merge what we 21 view are two seemingly inconsistent thoughts 22 from re -reading the transcript of that hearing. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 8 1 1 And in doing that, as we understand 2 this -- 3 THE COURT: Well, after listening to 4 you two guys, for how many months, it's not 5 surprising to me that there might be 6 inconsistent thoughts or statements made by me. 7 MR. LAWSON: I don't disagree with 8 that, Your Honor. And it is certainly 9 confusing. 10 But I think, if I could understand 11 where you are going with this, although you are `12 not ordering the BZA to do anything, what you 13 are saying is, we're at a point, and I think, if 14 we can get this in front of BZA in some kind of 15 proper shape or form, they may actually be able 16 to deliver what we want, which is lots that we 17 can build on. 18 And what I have done with these orders 19 is try to create a scenario that allows for 20 that. And the biggest issue is the vesting 21 versus not vesting. 22 And that is why I've added the Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a4le-006bb7f76b8a August 4, 2004 - Highview Page 9 1 language about the subdivision plat, and so on. 2 If we accept the County's order as it 3 is written, the Court is finding that we are not 4 the beneficiary of a significant governmental 5 act, which is the subdivision plat. 6 And the only way we get to that point 7 is by the argument that"it has expired, which 8 was the interpretation that was presented to 9 Your Honor of the statute that says, if you 10 don't renew a subdivision plat, after five years 11 it expires. 12 As I understand it, that's really not 13 what the County wants. They don't want the 14 whole plat to disappear, just the setback issue 15 disappear. 16 And so what I've done in my order is 17 say that, that Your Honor has found that we are 18 not vested, but there is an assertion -- and I 19 need to have this in the record, for the benefit 20 of the BZA -- there is an assertion that all it 21 applies to is the setback issue. 22 And therefore, when we go to the BZA, Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 10 1 1 I don't want to be thrust into an argument where 2 they -- because I think they are intelligent 3 people, and they look at this and say, 4 Mr. Lawson, if you are not vested in this 5 subdivision, you don't even have the lots. 6 So what are you doing here asking for 7 setback variances, when you don't even have 8 lots? 9 10 11 12 13 14 15 16 17 18 19 And so I've got to mirror those two ideas, which is we are not vested. And so what I'm trying to do is tailor it and say we're not vested in just the setback issue, so that when we get in front of the BZA we can focus the argument on the setback issue, and they can give it to us, or not, or modify it. .And then, hopefully, we don't have to appear before Your Honor again. If we go the other route', and say flat out we're not vested then, as I understand the 20 County's argument, and the use of that statute, 21 and as a matter of law, then we don't even have 22 lot lines, let alone setbacks from lot lines. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 00373db-9020-454-a4le-006bb7f76b8a August 4, 2004 - Highview Page 11 1 THE COURT: I don't think that's the 2 County's position. 3 MR. MITCHELL: That's not the case, 4 Your Honor. You know, we've said all along -- 5 they said that they were vested so that you 6 couldn't apply the setbacks. 7 The ruling of the Court is they are 8 not vested so as to preclude the application for 9 setbacks. 10 The -- all along it's been clear that 11 they have non -conforming lot status, by virtue 12 of the County Ordinances. The lots are in I13 existence, and this recognizes. 14 I -- I don't understand. There's -- 15 THE COURT: It looks to me like the 16 crux of our discussion last time is met in your 17 paragraph -- subparagraph three on page three, 18 when you say, "In lieu of an approved Virginia 19 Department of Health sanitary sewer system for 20 each lot, the BZA may condition approval of any 21 variance for a lot on the owner of the lot 22 obtaining the Virginia Department of Health Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 00373db-9020-454-a4le-006bb7f76b8a August 4, 2004 - Highview a Page 12 1 1 approval of the sanitary sewer system to serve 2 that lot." 3 MR. MITCHELL: Right. 4 THE COURT: You might want to add, in 5 the future, or to make it very clear, that they 6 don't have to do that first, they can do that 7 second. 8 I think it says that, but if 9 Mr. Lawson wants that in there -- 10 MR. MITCHELL: And after the last time 11 -- after the last meeting we had, I went back 12 and the County agreed to do that. So we are 13 laying out now -- 14 THE COURT: Right. It seems to me 15 that was the crux of the matter. 16 MR. MITCHELL: Right. 17 THE COURT: That's the big speed bump 18 to developing this, is that he doesn't have to 19 go spend a lot of money to do the perk tests 20 first. 21 MR. MITCHELL: And we are putting on 22 the record that we will process it that way. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb Mb8a August 4, 2004 - Highview Page 13 1 1 THE COURT: I think you won what you 2 are really after there, Mr. Lawson. I'm going 3 to enter the County's order. 4 I don't think there's going to be a 5 problem on the lot lines being no longer in 6 existence. I don't think the County is going to 7 -make that interpretation, and I think you've got 8 what you need to do, because he put number three 9 in there. 10 MR. LAWSON: Well, again, we had this 11 discussion before. My only concern is that 12 someone else may view this and say, if that, in 13 fact, is it, why is it not in your order? 14 I do appreciate getting it on the 15 record. And again, our hope is -- and I think 16 this is -- 17 THE COURT: If that comes back here to 18 me my order will be pretty clear. 19 MR. LAWSON: Thank you. 20 THE COURT: I don't think you have a 21 problem there. 22 I think the main hurdle, as I --------------- Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 14 1, understood it from the expression of the 2 arguments that were made the last time, 3 basically deals with the paragraph three. 4 And I think that ought to enable your 5 man - - 6 MR. LAWSON: That it will be 7 contingent on drain fields being approved 8 instead of doing the work in the front end. 9 THE COURT: Exactly. Now you want to 10 state that specifically? 11 MR. LAWSON: Well, we did have a 12 revision at the end. 13 THE COURT: How about, in the future, 14 after the words, "may condition approval?" You 15 want to make sure that it's crystal clear that 16 they don't have to do that first, Mr. Mitchell? 17 Does that say it? 18 MR. MITCHELL: Well, Your Honor, 19 towards the end I think it says that, towards 20 the end of number three, where it says, 21 "Approval of a sanitary system," you can insert 22 in there, in the future to serve that lot. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 00373db-9020-454-a4le-006bb7f76b8a August 4, 2004 - Highview Page 15 1 THE COURT: I want to make sure 2 that -- 3 MR. MITCHELL: That's fine. 4 THE COURT: -- it's understood that it 5 can be second, not first. 6 MR. MITCHELL: That's certainly what I 7 intended. 8 THE COURT: I understand that. 9 MR. MITCHELL: If it would make it 10 more clear there towards the end to insert, in 11 the future, that's fine. 12 THE COURT: Approval in the future. 13 MR. MITCHELL: Approval of a sanitary 14 sewer system in the future, or approval in the 15 future of a sanitary sewer system, at the end of 16 number three. 17 MR. LAWSON: That would be fine, Your 18 Honor. 19 THE COURT: All right. I'll put that 20 in there, I'll initial it, and I will enter your 21 order. If you all will be kind enough to 22 endorse this. And I appreciate your patience Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a4le-006bb7f76b8a August 4, 2004 - Highview Page 16 1 ' 1 Mr. Lawson, Mr. Mitchell, and I hope this 2 settles the problem. 3 (Whereupon, Counsel approached the 4 bench.) 5 THE COURT: Now what do we need on 6 these other cases? 7 MR. MITCHELL: The 300 case, what is 8 it? 9 THE COURT: 318? 10 MR. MITCHELL: 318, Your Honor. That 11 case was previously decided, and you granted my 12 demurrer, but withheld the entry of a Final 13 Decree until the entry of that Final Decree that 14 you've just entered. 15 THE COURT: All right. 16 MR. MITCHELL: So now I don't think 17 there should be any issue about that. 18 THE COURT: All right. 19 MR. MITCHELL: I guess we'll have to 20 endorse it. 21 MR. LAWSON: Well, in the other case, 22 Your Honor, we've asked that it simply be stayed Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions; Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 17 1 pending the outcome from the BZA. 2 THE COURT: Is this 318? 3 MR. MITCHELL: Yes. 4 THE COURT: Is that the case you are 5 talking about? There's two more cases. 6 MR. LAWSON: I thought it was 513. 7 MR. MITCHELL: No, 318 is the one I'm 8 talking about. This was the case that -- 9 THE COURT: Yes. You are asking for 10 the stay in 513. 318 looks to me like it simply 11 goes away. .12 Do you all want to endorse this? 13 MR. MITCHELL: Yes. 14 (Whereupon, Counsel approached the 15 bench.) 16 MR. LAWSON: This isn't the vested 17 rights one -- 18 MR. MITCHELL: No, this is the -- 19 MR. LAWSON: -- is it? 20 MR. MITCHELL: -- exhaustive 21 administrative remedies. 22 MR. LAWSON: The other one, we are Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 18 1 1 asking that it be stayed. 2 THE COURT: All right. Any objection 3 to that? 4 MR. MITCHELL: I have no objection to 5 staying it, Your Honor. 6 THE COURT: We will stay it, and that 7 we leave you a safety net, is that the idea? 8 MR. LAWSON: That's the idea, Your 9 Honor. 10 THE COURT: Hopefully, you all will 11 get it all worked out. 12 MR. MITCHELL: Your Honor, I'm not 13 sure how to -- I will just take the matter off 14 the docket. 15 THE COURT: That's fine with me, and 16 continue it generally? And it will come up 17 under a two-year rule probably in February. I 18 think -- 19. MR. LAWSON: We will just do an order 20 entering a stay; won't we? 21 THE COURT: If that's okay, and it's 22 in the order. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a41e-006bb7f76b8a August 4, 2004 - Highview Page 19 1 1 MR. LAWSON: I'll prepare an order. 2 THE COURT: If it's just continued and 3 nothing happens, then it will come up under 4 -- 5 MR. LAWSON: Then we will have to 6 revisit it. 7 MR. MITCHELL: Well, the basis for the 8 stay is that they are going to appeal these 9 other two cases to the Supreme Court. And the 10 stay is while that case is on appeal. 11 And I would want the order to also .12 say, or until further order of this Court. 13 MR. LAWSON: That's fine. 14 THE COURT: Okay. And of course, if 15 you don't appeal it, you can just go ahead and 16 -- 17 MR. MITCHELL: I'll put it back on the 18 docket. 19 THE COURT: -- run it back through, 20 Mr. Lawson. 21 MR. LAWSON: Yes. 22 I THE COURT: You can run it back Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a4le-006bb7f76b8a August 4, 2004 - Highview Page 20 1 1 through the County. 2 MR. LAWSON: That would be fine, Your 3 Honor. 4 THE COURT: You would probably get a 5 quicker result from the County than you will 6 from the Supreme Court. 7 MR. LAWSON: Well, as we understand 8 it, yes. If we can get this thing through the 9 BZA and get it approved, then we'll be happy to 10 dismiss that case. 11 THE COURT: All right, you do an order 12 on the Motion to Stay. 13 MR. LAWSON: Yes, sir. 14 THE COURT: Thank you, all. Thank 15 you, Mr. Mitchell. 16 - - - - - - - - - - - - - - - - 17 (Whereupon, at approximately 9:20 18 o'clock a.m., the hearing in the above entitled 19 matter was concluded.) 20 21 22 Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com 04b373db-9020-454f-a4le-006bb7f76b8a M Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 V I R G I N I A IN THE CIRCUIT COURT OF FREDERICK COUNTY - - - - - - - - - - - - -x HIGH VIEW ONE, L.L.C., Plaintiff, -vs- FREDERICK COUNTY BOARD OF SUPERVISORS, et al., Defendants. - - - - - - - - - - - - -x In Chancery: 04-428 Thursday, December 2, 2004 Winchester, Virginia The above -entitled matter came on to be heard before THE HONORABLE JOHN R. PROSSER, JUDGE, in and for the Circuit Court of Frederick County, Virginia, in the'Courthouse, Winchester, Virginia, commencing at approximately 1:45 o'clock p.m., when there were present on behalf of the respective parties: Page 1 Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 2 1 Appearances: 1 2 On Behalf of the Plaintiff: 2 3 THOMAS M. LAWSON, ESQUIRE Lawson & Silek 3 4 160 Exeter Drive 4 Suite 103 5 5 Winchester, Virginia 22603 6 (540)665-0050 6 7 On Behalf of the County: 8 7 9 ROBERT T. MITCHELL, JR., ESQUIRE 10 8 9 East Boscawen Street Winchester, Virginia 22603 11 9 (540) 662-3200 12 10 ***** 13 11 12 14 13 15 14 16 15 17 16 17 18 18 19 19 20 20 21 21 22 22 Page 3 1 PROCEEDINGS 1 2 (Whereupon, the court reporter was 2 3 duly sworn by Judge Prosser.) 3 4 MR. MITCHELL: Your Honor, can I 4 5 approach? 5 6 THE COURT: Sure. 6 7 (Whereupon, Mr. Mitchell approached 7 8 the bench with Mr. McLaughlin.) 8 9 MR. MITCHELL: I want to introduce 9 10 Dennis McLaughlin, Jr. 10 11 THE COURT: Good to see you. 11 12 MR. MCLAUGHLIN: Nice to see you, too. 12 13 MR. MITCHELL: He graduated William & 13 14 Mary Law School in May, and finished the Bar, 14 15 and was admitted to practice on November 1st, 15 16 and he is with our firm now. 16 17 THE COURT: Good. Well, 17 18 congratulations, that's great. 18 19 MR. MCLAUGHLIN: Thanks a lot. 19 20 THE COURT: Wonderful. 20 21 All right. What is this case about? 21 22 I don't have the file. Do I need the file? 22 Page 4 MR. MITCHELL: You may, Your Honor. What it is -- THE COURT: It's arguing what? MR. MITCHELL: It involves demurrers that we've filed to the pleadings that were filed in this case. THE COURT: All right. MR. MITCHELL: Do you want to get the file? MR. LAWSON: There are numerous pleadings, Your Honor. THE COURT: I anticipated that. Law case? MR. LAWSON: Chancery. THE COURT: Chancery. High View One. All right. So what do I have to decide today? MR. LAWSON: It's here on a demurrer, Your Honor. THE COURT: Okay. MR. MITCHELL: Do you want me to start, or do you want to wait for the file? THE COURT: No, go ahead and start. Page 5 MR. MITCHELL: Your Honor, it does come on for demurrers that have been filed on behalf of the Defendants; Frederick County; and Frederick County Board of Zoning Appeals, and Frederick County Board of Supervisors. THE COURT: Is this the same case we already heard? MR. MITCHELL: No, Judge, it's different. What happened here is that, as the pleadings, it's a -- well, first of all, let me say that there are two pleadings filed in this file. There is a Bill of Complaint and a Petition for a Writ of Mandamus. How two pleadings get in one file, I'm not sure I know, and I'm not sure which one is before the Court. But I will tell you that both pleadings ask for a Writ of Mandamus. THE COURT: To do what, to require -- MR. MITCHELL: To require -- it appears that -- it appears to have two elements; one -- and this will -- I will need to explain 2 (Pages 2 to 5) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 6 this as I go into my demurrer. One would be to require the County to process a Variance Application from the Plaintiff. Secondly, there was an administrative determination that the Variance Application that had been submitted was not complete. And they are seeking a Writ of Mandamus to require the Zoning Administrator to accept that Application as complete. And that's kind of where we are. I think, Judge, in order to have an understanding of the issues that are going to be presented by the demurrers, it's necessary to take a look at the chronology. On August 4th, the Court entered a Final Decree in Chancery 03-415, which involved two issues. One had to do with the vested rights, and one had to do with affirming a decision of the Board of Zoning Appeals, in 2003, which denied a Variance Application from the Page 7 Plaintiff. On August the 6th, the Plaintiff, High View One, submitted to the County an Application for a variance. And I have, to the extent this refers to letters, I have copies, if the Court wants to see them. On August 9th, High View One was advised, by letter, that there were certain items which were needed to be submitted with their Application in order for the Application to be complete. One of the items that they were -- that was identified that needed to be submitted with the Application to make the Application complete was the -- certain measurements from the -- they had sample houses shown on each of the lots, and they needed the measurement from the edge of the house to the -- to the boundary line of the property. On August 16th, High View One submitted a Revised Application for Variance, Page 8 1 addressed the issue -- all the issues, except 2 for the issue about the measurements from the 3 house to the exterior property line. 4 THE COURT: You wanted them to locate 5 the house on the lot and they wouldn't do it? 6 MR. MITCHELL: Well, they -- they put 7 -- they put sample houses on the lots. 8 THE COURT: Sample footprints. 9 MR. MITCHELL: Sample footprints, but 10 they wouldn't show the dimensions from the edge 11 of the house to the exterior property -- 12 THE COURT: Because they don't know, 13 because they don't know what is going to be 14 built there; right? 15 MR. LAWSON: Correct. 16 MR. MITCHELL: Well -- 17 THE COURT: Presumably, applying 18 common sense, that must be why they haven't done 19 that. 20 MR. MITCHELL: They -- they -- that, 21 presumably, may be why they didn't, Judge. On 22 August -- that was August 16th that they Page 9 1 submitted a Revised Application. 2 August 25th, they were advised, again, 3 that the Application was not complete, because 4 of measurements, and that it was necessary, in 5 order for the BZA to be able to tailor a 6 variance to suit the circumstances of the lot; 7 to meet the hardship, so -to -speak. 8 And on that same day, the Zoning 9 Administrator issued an Administrative 10 Determination Letter saying the same thing; that 11 I determined that you have to have those 12 measurements on there for it to be a complete 13 Application, and advised them of their right to 14 appeal to the BZA. 15 On August 31st, High View One filed a 16 Notice of Appeal of that Administrative 17 Determination with the County. 18 On September the 9th -- excuse me, let 19 me back up. 20 On August 31, High View One filed a 21 Notice of Appeal in Chancery 03-415, which was 22 the case this Court decided. 3 (Pages 6 to 9) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 10 1 So they were appealing -- they 1 _ . 2 notified that they were appealing that case. 2 3 And again, remembering that that involved two 3 4 issues. It involved the vesting rights, but it 4 5 also involved the issue about approving -- 5 6 affirming the decision of the BZA in denying the 6 7 previous -- 7 8 THE COURT: And that Notice of Appeal 8 9 was filed to the Virginia Supreme Court? 9 10 MR. MITCHELL: It was filed to -- it 10 11 was filed, of course, in this Court, a Notice of 11 12 Appeal that it would be appealed to the Supreme 12 13 Court of Virginia. 13 14 So on September the 9th, High View One 14 15 was advised that, even if they filed a complete 15 16 Application, it would not be processed while 16 17 that appeal was pending in the Supreme Court, on 17 18 the basis of the principle enunciated in the 18 19 West versus Mills case, that you are not 19 20 required to process an Application where there 20 21 is a different appeal, or a different -- or an 21 22 appeal of the same property in the same 22 Page 11 1 development as you -- as is on appeal in the 1 2 Courts. 2 3 That has been the standard Frederick 3 4 County position on issues of this nature, and we 4 5 have notified them of that fact. 5 6 On September the 24th, High View One 6 .7 submitted an appeal to the BZA of the 7 8 Administrative Determination by the Zoning 8 9 Administrator on August 25th. 9 10 On August -- on October the 5th, High 10 it View One was advised that since the attempt to 11 12 appeal to the BZA involved the Variance 12 13 Application, that under the principle of West 13 14 versus Mills, that that -- that appeal would not 14 15 be processed while the case was pending before 15 16 the Supreme Court of Virginia. 16 17 On October the 13th, High View One 17 18 filed the suit that we have before us today, 18 19 asking for a Writ of Mandamus. 19 20 THE COURT: Requiring you to process 20 21 it, despite the fact the appeal is pending? 21 22 They are challenging that issue? 22 Page 12 MR. MITCHELL: At that time, yes; that's right. Now on November the 3rd, the County filed its demurrers to the suit that was filed. In the meantime, on November the 1st, High View One filed its Petition for Appeal in the Supreme Court. Now that -- when they -- when they filed the Petition of Appeal, the County has twenty-one days to file a Brief in Opposition. We filed that Brief in Opposition on Monday, November the 22nd. And in writing that Petition -- that Brief in Opposition the weekend before, and then reviewing the Petition for Appeal, I determined that they had not assigned error to this Court's decision on the BZA denial of -- of the variance in 2003. And the -- we determined that, because they had not assigned error on that, that that decision was final. And then, so the next day, on November Page 13 the 23rd, we advised High View One that the -- that the BZA would now process a completed Application for Variance, since that issue was - - had -- had not been noted in their Petition for Appeal, and that, therefore, there was no risk that there would be a reversal of that denial of the BZA Application. THE COURT: The appeal just dealt with the vested rights question? MR. MITCHELL: Yes -- well, as to that case, as to Chancery 03-415, it only involved the vested rights question; correct. Then, on November the 29th, since we filed an amended demurrer -- we filed several demurrers when we filed our demurrers on November the 3rd. Demurrer number one involved this issue about the West versus Mills principle about not considering competing things. And so on November 29, we filed an amended demurrer number one. Now the demurrer number one that we 4 (Pages 10 to 13) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 14 1 originally filed was on the basis, that as a 1 2 matter of law, a Writ of Mandamus may not issue 2 3 to require the Board of Zoning Appeals to 3 4 consider a second Variance Application, while 4 5 denial of the first Variance Application was 5 6 pending in the Courts, pursuant to the principle 6 7 enunciated in West versus Mills. 7 8 Since the later filing of the Petition 8 9 for Appeal did not assign error, the County 9 10 concluded that decision was final and, in 10 11 fairness, advised High View One that it would 11 12 now process a completed Variance Application, 12 13 even though the rest of the case was still on 13 14 appeal to the Supreme Court. 14 15 Therefore, our demurrer number one no 15 16 longer applied, because that -- that issue had 16 17 been taken care of. 17 18 So we filed an amended demurrer number 18 19 one to address the changed circumstances. And 19 20 that's, at this point, we'd like to address the 20 21 issues in our demurrer number one. 21 22 I would note that in the Brief in 22 Page 15 1 Opposition to the -- the -- to our amended 1 2 demurrer, Counsel for High View One raised the 2 3 issue that the demurrer, perhaps, is not 3 4 properly before the Court, because we didn't ask 4 5 leave to amend -- to file an amended demurrer. 5 6 And if they want us to wait and file 6 7 the leave to amend, and argue this three weeks 7 8 from now, I'll be glad to do so. 8 9 I filed it because I knew this matter 9 10 was coming up, and since circumstances 10 11 changed, there was no reason to argue the 11 12 demurrer where the circumstances had changed. 12 13 Now in our demurrer number one, there 13 14 seems to be two issues that they are asking for 14 15 a Petition for a Writ of Mandamus on. 15 16 In paragraph four of my amended 16 17 demurrer number one, I address the fact that, to 17 18 the extent that the pleadings that they filed 18 19 ask that the Court issue a Writ of Mandamus 19 20 ordering the Zoning Administrator to transmit a 20 21 completed Variance Application to the BZA, 21 22 notwithstanding their pending appeal, that issue 22 Page 16 is now moot. And so we demur to that, to the extent that that pleading asks for that. And I wouldn't think there would be much disagreement about that. To the extent that the pleadings filed in this case pray for a Writ of Mandamus to require the Zoning Administrator to accept the Application for the variance, despite the fact that the measurements were not shown on the plat as set forth in the Administrative Determination Letter of the Zoning Administrator, there are a number of things to be -- to be pointed out. In essence, Judge, to skip ahead -- well, to skip ahead in -- our demurrer, in this respect, is based on the fact that they haven't exhausted their administrative remedies. When we advised them that since they had not, in their Petition for Appeal, noted error, or assigned error, with respect to this Court's decision on the Variance Application in 2003, and that we would -- that the County would Page 17 accept a completed Variance Application, we also advised them that, since that -- since they had not assigned error, the County, the BZA, would process an appeal of the prior Administrative Determination. And since you would only have thirty days from the date of that appeal, and we wouldn't accept that during that thirty -day period, we told them they would have thirty days from November 23rd, in order to appeal that Administrative Determination. Variance number one, in effect, asks that the matter be dismissed, because they have not exhausted their administrative remedies. We have attached to our -- to our brief the case of -- to our demurrer, actually, amended demurrer number one, the York Phillips versus Tealum case -- THE COURT: Where did you get the November 23rd date? MR. MITCHELL: That was the date that we notified them that because they had not 5 (Pages 14 to 17) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 18 1 assigned error in their Petition for Appeal, 1 2 that the County would accept a completed 2 3 Variance Application, and that they could have 3 4 thirty days to appeal the prior Administrative 4 5 Determination. 5 6 THE COURT: Is it of any consequence 6 7 that the County didn't recognize, until some 7 8 time in November, that what the County thought 8 9 they had appealed they hadn't appealed? 9 10 Does that make any difference? 10 11 MR. MITCHELL: Well, I guess -- I 11 12 guess that's for the Court to decide, Your 12 13 Honor. I will be honest with you. When the 13 14 Petition for Appeal come to my office I didn't 14 15 look at it right away, because I knew I had 15 16 twenty-one days to answer. 16 17 THE COURT: You thought they appealed 17 18 everything. 18 19 MR. MITCHELL: I thought they appealed 19 20 everything. And -- and -- but you know, the 20 21 Notice of Appeal doesn't identify the errors 21 22 that you are assigning; it just says, we are 22 Page 19 1 appealing the case. 1 2 So it wasn't until the -- 2 3 THE COURT: And that is a one -page 3 4 deal; right? 4 5 MR. MITCHELL: That's just a one -page 5 6 deal; correct. 6 7 And Your Honor, I mean, I think, based 7 8 upon -- 8 9 THE COURT: It seems to me that if 9 10 they -- if Mr. Lawson's clients took the 10 11 position that the County should have discovered 11 12 that at some earlier time, the only thing that 12 13 would do would be to make the thirty days run 13 14 against them, and act to their detriment; is 14 15 that correct? 15 16 MR. MITCHELL: Well -- 16 17 THE COURT: Because you are taking the 17 18 position that you have given them until November 18 19 23rd, and then start the thirty days running 19 20 from that date. 20 21 MR. MITCHELL: You know, we were 21 22 trying to fair about it. I -- we, you know, 22 Page 20 when we told them that we would now accept the Application, and now acceptance of an appeal, we -- we knew that we couldn't relate back to the thirty -day period that had already expired. THE COURT: Right. MR. MITCHELL: So we wanted to give another thirty days. THE COURT: Right. MR. MITCHELL: And it wasn't until we notified them of our position that they had any reason -- THE COURT: And that's to their benefit. MR. MITCHELL: Sure, yes. Now -- THE COURT: But your position now, essentially, is that we are still inside that thirty -day period, so they, in order to get a Writ of Mandamus, the Writ of Mandamus being necessary that they have to -- MR. MITCHELL: And they have an administrative remedy available. THE COURT: Right. Page 21 MR. MITCHELL: Now Judge, that's the - - that's the issues of our demurrer. I'm confident, as they have in their Brief in Opposition, that they will seek to -- THE COURT: Is all this boiling down basically to the measurements of the footprints of the houses? MR. MITCHELL: I won't address that, because I really think that they haven't exhausted their administrative remedies, and I really don't have to give a position. But let me give -- this is your subdivision plat. (Whereupon, Mr. Mitchell presented a document to Mr. Lawson.) MR. LAWSON: Which one? MR. MITCHELL: The Variance Application. MR. LAWSON: Which one? We've given you several. MR. MITCHELL: It's the second one. MR. LAWSON: What is the date, because 6 (Pages 18 to 21) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 )7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 22 I know we sent at least two, possibly three. (Whereupon, Mr. Mitchell approached the bench, and presented a document to the Court.) MR. MITCHELL: This is just for illustrative purposes. THE COURT: Right. MR. MITCHELL: And Judge, what -- what -- the issue here, and why the measurements are important and necessary -- THE COURT: Whatever confirmation, whatever configuration they are proposing, a typical proposed house dimension, they all fit inside the footprint; right, Mr. Lawson? MR. LAWSON: Your Honor -- MR. MITCHELL: Well, the footprints -- the footprints are different for each house. THE COURT: That would be setback lines? houses. MR. MITCHELL: They are different THE COURT: Right. Page 23 MR. MITCHELL: Now what -- what that - - what the Application involved was a -- not a variance tailored for each lot, but they said, we want a standard ten -foot sideline variance, I mean, a setback, and I think it was a twenty- five or something rear line setback. THE COURT: Right. MR. MITCHELL: Now I think what we need to -- what needs to be clear, Judge, is to why -- why that was -- why that's necessary. In the April 2004, Supreme Court case of Compton -- I will give you, Judge, a copy of this -- (Whereupon, Mr. Mitchell approached the bench and presented a document to the Court.) BY MR. MITCHELL: Q This is -- this is a case that is considered to be an important case, as far as BZA appeals or reviews are concerned. And it's been commented on a lot by text writers. Page 24 1 But in essence, what the Court said in 2 this -- this combination of three cases is that 3 -- and this is reflected on page eight of ten, 4 up in the right-hand corner -- that the General 5 Assembly intended that variances be granted only 6 in cases where Application of zoning 7 restrictions would appear to be constitutionally 8 impermissible. 9 And that, therefore, the BZA has 10 authority to grant variances only to avoid an 11 unconstitutional result. 12 And that the BZA, when considering an 13 Application of a variance, acts only in an 14 administrative capacity. 15 Then, over on page ten of ten, in the 16 middle of the page, at the end of that paragraph 17 they say, the threshold question for the BZA, in 18 considering an Application for a variance, as 19 well as for a Court reviewing its decision, is 20 whether the effect of the Zoning Ordinance upon 21 the property under consideration, as it stands, 22 interferes with all reasonable beneficial uses Page 25 1 of the property taken as a whole. 2 If the answer is in the negative, the 3 BZA has no authority to go further. 4 And then, at the beginning of that 5 paragraph it says, where the impact of the 6 Zoning Ordinance is so severe as to meet the 7 foregoing standard, the BZA becomes vested with 8 wide discretion in tailoring a variance that 9 will alleviate the hardship, while remaining in 10 harmony with the intended spirit and purpose of 11 the Ordinance. 12 Now I suggest, Your Honor, that in 13 order for the BZA to be able to tailor a 14 variance, if you look at -- if you look at where 15 they have positioned the sample house on the 16 lot, in order for the BZA to tailor a variance, 17 they need to know the dimensions, because in 18 some cases, they only need a ten -yard -- a ten- 19 foot -- they need a variance to create a ten- 20 foot setback, while on the other side of the 21 house they may not need that. 22 And the Supreme Court is saying that Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design 7 (Pages 22 to 25) www.casamo.com info@casamo.com Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 26 the BZA is supposed to tailor that variance to alleviate the hardship. I would suggest that what they would propose is that, we put those sample lots on there, we're entitled to whatever variance we want. If we can show that the lot is unbuildable, we get what we want, and it doesn't make any difference, and the BZA is -- it's not relevant for the BZA to consider what variance is needed. You will note that those sample houses are positioned on there, and they are not exactly the same on every lot, not in the middle of the lot, but they've been positioned there for a reason, as indicated to me by their engineer. Now finally, I would like to point out, because they raise it in their memorandum in opposition to our demurrer, that suggesting that this -- that what they are proposing is what the Court ordered in the Final Decree. Page 27 First of all, Your Honor, you made it very clear, that with respect to future Variance Applications, you were not ordering the BZA to do anything. And the Final Decree sets forth what the County advised the Court that it would do, with respect to future submission of Variance Applications. And it said, in recognition of the fact that the subdivision was approved im 1962, and planned for -- for over one hundred lots, if -- if the Plaintiff hereafter files an Application or Applications with the BZA for setback variances, the following would apply, and it listed several. The one that's applicable here was number two. It says, in lieu of finished house plans for each lot, on a plat of each lot the Plaintiff may show the footprint of a sample dwelling, appropriate in size for the size of the lot. Now quite frankly, Your Honor, there Page 28 1 may be question as to whether those footprints 2 there are appropriate, or whether they are 3 appropriate in the sense of being too large for 4 the lot. 5 The Zoning Administrator has made a 6 determination that the County, we are not going 7 to raise that issue. 8 We will accept the footprints that 9 they've put on there. 10 That -- the order goes on to recite, 11 when the County said what it would do, it says, 12 except to the extent that it may be modified 13 above, existing regulations for a Variance 14 Application with the BZA shall apply. 15 It's our position, Your Honor, that 16 the reason that the Zoning Administrator issued 17 that administrative determination, and why it's 18 important to have those measurements on there, 19 no other way can the BZA know what -- how much 20 of a variance it needs to -- to, in its 21 discretion, to be able to -- to tailor, in the 22 words of the Supreme Court. Page 29 1 THE COURT: What measurements do you. 2 need, the square footage of the house? 3 MR. MI.TCHELL: No, we need -- we need 4 the measurements from the exterior wall of the 5 house to the exterior lot line. That's what 6 we've said, that's what we've told them back in 7 August. 8 We told them again in October, and 9 that's what is needed on each lot. 10 THE COURT: But if they don't know the 11 style of the house they are going to put on each 12 one of those -- 13 MR. MITCHELL: See, that was the 14 purpose, Judge, of being able to put a sample 15 footprint. 16 Now there are, I think -- 17 THE COURT: Five -- 18 MR. MITCHELL: I don't have the same - 19 - 20 THE COURT: Five different styles of 21 house. 22 MR. MITCHELL: Five different styles Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design 8 (Pages 26 to 29) www.casamo.com info@casamo.com Highview Page 30 1 of house. And they got -- we got the -- they 1 2 even know where the garages are. They've got 2 3 the dimensions of the dwelling shown there. 3 4 And they've located those on the lots 4 5 in a specific position. 5 6 So in order for the -- in order for 6 7 the BZA to, you know, we said, you don't have to 7 8 have -- actually have somebody do house plans, 8 9 and have the house be ready to be built, in 9 10 order to do it. 10 11 We'll accept this footprint, but you 11 12 know, you put the footprint on there, and we -- 12 13 and then we grant the variance, based on that. 13 14 This -- what they've submitted -- 14 15 THE COURT: And they are afraid that 15 16 if they put this footprint down here they will 16 17 be stuck with that, and that if a potential 17 18 buyer comes in and says, well, I don't like that 18 19 style of house on this lot, I'd rather have 19 20 style number C on this lot, then they have to go 20 21 back through the drill again with -- 21 22 MR. MITCHELL: On that particular lot 22 Page 31 1 they have to go back and ask for a different 1 2 variance; that's correct. 2 3 But they would get -- we're willing to 3 4 look at this, and grant it one time. 4 5 THE COURT: They just need to put some 5 6 numbers on there. 6 7 MR. MITCHELL: They need to put some 7 8 numbers, and that's what we've already said. 8 9 THE COURT: Mr. Lawson, what is the 9 10 problem? What is the real issue here? Because 10 11 that seems simple enough, the way Mr. Mitchell 11 12 'cast the issue, they seem simple enough to be 12 13 resolved. 13 14 MR. LAWSON: Well, first of all, it 14 15 seems like we are going to the merits of the 15 16 Petition -- 16 17 THE COURT: We probably are. 17 18 MR. LAWSON: -- and I've got no 18 19 problem with that. 19 20 THE COURT: We probably are. I'm just 20 21 trying to -- I've been around the block with you 21 22 guys on this case, and this subdivision, with 22 Page 32 these people, for a long time, and sometimes I thought the County was off -base, sometimes I thought you were off -base. And that's, obviously, why you are appealing it, and why Mr. Mitchell is demurring. MR. LAWSON: Well, I think it's important to confirm that what we are appealing is the determination that we don't have vested rights. And I am pleased that, after much correspondence back and forth, and putting it in writing in our Petition, that the County has finally grasped the concept that that is a different issue, and we should be allowed to go to the BZA. That is an accomplishment, in and of itself. But to get down to it, what they are doing -- and there's been a lot of filings, submissions and rejections since August. But we'd ask you to look at our brief, because I think we're getting to a point where this thing Page 33 has delay written all over it. For what reason or purpose, I'm not sure. THE COURT: He said you are still inside the thirty days. MR. LAWSON: And I'm pleased to hear that. But he's also saying -- THE COURT: Does that take care of that aspect of it? MR. LAWSON: No, it does not. THE COURT: Okay. MR. LAWSON: Because he's been very careful to say something that Your Honor said, and we're going full circle. It all leads back to your order, and what were we supposed to do back in August. In fact, we filed it two days after you entered that order, just so you know -- THE COURT: Right, right. MR. LAWSON: -- about our due diligence. And what they are saying, and what was 9 (Pages 30 to 33) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 34 1 said in that hearing, is entirely opposite of 1 _ 2 what they are saying and doing now. 2 3 What was said was, put forth samples. 3 4 And you've hit on it, because how on 4 5 earth do we nail down a house? And in order to 5 6 do a footprint, you've got to know what the 6 7 house is going to look like; is it a one-story, 7 8 two-story, etcetera. , 8 9 For a hypothetical buyer, that doesn't 9 10 even exist yet, we don't know if he wants a 10 11 rambler, or a two-story, or whatever his thing 11 12 is. 12 13 And so we went the next step. And 13 14 Your Honor said that, and I have copies of the 14 15 transcript, have copies of the order. And what 15 16 we did was entirely consistent with Your Honor's 16 17 ruling. 17 18 Actually, we went one step further. I 18 19 don't think we had to narrow it down to five 19 20 typical profiles, but we did. We went ahead and 20 21 narrowed it down. We located them on the plats. 21 22 And I will tell you, you are looking 22 Page 35 1 at, I think that was the third submission in 1 2 response to demands from the County. 2 3 And we put it on the lot. And we 3 4 asked for setbacks. And you will see the lot 4 5 lines of twenty-five rear, ten side, and you 5 6 will recall that the fronts were vested, so 6 7 those weren't issues. 7 8 You had ruled that those were vested. 8 9 And we put them down, and we showed 9 10 the driveways, and so on. And we commented 10 11 though, that we cannot, number one, commit to 11 12 the style, because we don't know what the 12 13 hypothetical buyer is going to want, and if he 13 14 wants something different, then how do we 14 15 accommodate that? 15 16 But we agreed that we would submit, 16 17 and whatever the design is, it's going to be 17 18 within the twenty-five rear and ten side. 18 19 We even went so far as to submit that, 19 20 once we get an as -built, we'll give the one side 20 21 -- if you'll notice, these are side -load 21 22 garages, which are the standard in the industry. 22 Page 36 If we get into topography that says rock is here, and you can't put it there, or a drain field is here, and you can't put it here, we'll flip the house over, not encroaching on the ten -foot setback. We'll agree to give up the extra setback. I'm not sure why.we would do it, and frankly, I don't think it makes much sense. But if the BZA were to demand it on the as -built scenario, where you've got ten on one side, and you have ten on another, but there's a driveway there, and it's a thirty-foot wide driveway, go ahead and put it at forty. But the answer is, we don't have that information. We can't have that information until we've got a home buyer in front of us saying, I want profile C, as you described it. THE COURT: Why can't you do exactly what you did here, and that is, you put five potential styles of house. You show them what the numbers are, in terms of the setbacks, and Page 37 even the dimensions of each of these styles of houses. Why wouldn't that work? MR. LAWSON: Oh, we could. And in fact, we suggested that to the County. We actually did these in a mirrored fashion, and agreed that, for example, on my example where you have to flip and go on one side or the other, Your Honor, we said, for lot -- just pick one -- for Lot 28, for example, that if rock is bad on one side, that we would flip it, and would you, you know, grant one or the other. THE COURT: And so what are they saying to you? MR. LAWSON: Well, the County is saying -- THE COURT: What measurements do they want that you can't provide? MR. LAWSON: They want, like on Lot 28, they want ten on one side, and thirty-three point four inches on the other, and they want to 10 (Pages 34 to 37) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation -& Web Design info@casamo.com Highview Page 38 1 nail us down to that footprint. 1 2 THE COURT: All right. 2 3 MR. LAWSON: Which we can't do. 3 4 THE COURT: Why can't you do that? 4 5 MR. LAWSON: Because, Your Honor -- 5 6 THE COURT: And then, if you hit the 6 7 rock, and you want to flip it, that you don't 7 8 file then another Application back to them 8 9 saying, we've got a problem here, we'd like to 9 10 flip it? 10 11 If everybody is dealing in good faith, 11 12 why doesn't that solve the problem? Why would 12 13 the County then say, no, you can't do that, 13 14 we're going to make you blast this rock out? 14 15 I can't imagine they'd do that. 15 16 MR. LAWSON: Well, Your Honor, I will 16 17 use your words, because mine aren't working. 17 18 But it says, and what I'm suggesting, is 18 19 that their requirement that he's got to stake 19 20 out the place for the house to be.built on a 20 21 particular lot is impossible for him to do, if 21 22 he's going to be drawing up and having twenty 22 Page 39 1 empty lots, and then try to sell them. 1 2 There is no way you know who the 2 3 people are that are going to buy the lots, what . 3 4 they are going to do with it, in terms of -- 4 5 THE COURT: And all of that -- 5 6 MR. LAWSON: -- in terms of -- 6 7 THE COURT: All of that, as I recall, 7 8 was within the context of the County seeking to 8 9 require your man to go ahead and spend a lot of 9 10 money on each lot beforehand, in terms of trying 10 11 to fix a well, a drain field, the Health 11 12 Permits, all that stuff. 12 13 MR. LAWSON: That actually is 13 14 addressed later, and you are correct. And 14 15 actually, that's in your order, that we finally 15 16 don't have to do that. 16 17 THE COURT: Right. 17 18 MR. LAWSON: Actually, this had to do 18 19 with what we're talking about, staking out -- 19 20 and there's no difference. 20 21 THE COURT: Right. 21 22 MR. LAWSON: What you are talking. 22 Page 40 about here is staking out on paper -- THE COURT: Well, why can't you do that, and then, if your buyer is different, then -- but you've put this in here. I take it you haven't started to build anything; is that right? MR. LAWSON: We haven't been allowed to. THE COURT: I mean, that's where we are. MR. LAWSON: Yes, sir. THE COURT: We've still got nice, pretty, open land up there. MR. LAWSON: No, no, they're in lots, and there are houses there, remember. THE COURT: Some of them. MR. LAWSON: Yes, sir. THE COURT: Not what you built, not what you bought. MR. LAWSON: No, no, intermixed around us are houses, yes. THE COURT: Right. Page 41 MR. LAWSON: Yes. THE COURT: But you've still got the woodlands. You've done nothing, in effect, since we were in Court here last time. Is that right, Mr. Mitchell? MR. LAWSON: We've done a lot, in terms of filing with the County. THE COURT: I'm not talking about that. I'm talking about on the ground. The ground looks the same. MR. LAWSON: We have not been able to. THE COURT: All right. So is this what,you propose to develop, what this looks like here? Mr. Mitchell has handed me this, Exhibit 1, High View Manor? MR. LAWSON: That was an exhibit to our BZA Application. THE COURT: And what did you want the BZA to do? MR. LAWSON: We wanted the BZA to grant us a variance that allowed for twenty-five foot rear setbacks, and ten -foot side setbacks. 11 (Pages 38 to 41) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 42 1 THE COURT: And sample outlines. 1 2 MR. LAWSON: And we gave examples of 2 3 outlines, all of which will fit within that 3 4 envelope. 4 5 THE COURT: Why can't you then measure 5 6 these off, put the numbers on there, and then if 6 7 Mr. Smith, from Fairfax, wants to build a house 7 8 on Lot 28, and he says, I don't like that plan, 8 9 let's use plan number three instead of plan 9 10 number one, isn't that a similar matter for then 10 11 you to go back to the County and say, we'd like 11 12 to change this? 12 13 . MR. LAWSON: I apologize, but Your 13 14 Honor, one would think, and back in August, one 14 15 did think that. 15 16 But I'll tell you, to even get in 16 17 front of the BZA, we are learning, is not a 17 18 simple matter. 18 19 THE COURT: I'm not buying into all of 19 20 that. I just want to know -- what do you say, 20 21 Mr. Mitchell? Would that be a simple way to do 21 22 this? 22 Page 43 1 That meets your requirements, doesn't 1 2 it, if they just measure these things out? And 2 3 if they want to change one, then they come and 3 4 tell you? Am I wrong? What am I missing? 4 5 MR. MITCHELL: No, that's correct, 5 6 Your Honor. What we need is the measurements 6 7 from the exterior wall of the house to the 7 8 exterior lot line. 8 9 THE COURT: As to what these show. 9 10 MR. MITCHELL: As to what those show. 10 11 THE COURT: And if they want to put 11 12 something different than that on there, then 12 13 they have to come and ask you; is that right? 13 14 MR. MITCHELL: That's correct, 14 15 although Mr. Lawson said that -- and it may be, 15 16 I haven't reviewed the Application that 16 17 carefully -- but he said that -- they may have 17 18 said that we want to flip these. 18 19 And the BZA can consider it in that 19 20 context, that one lot line is ten feet, and the 20 21 other lot line is nineteen feet. But if they 21 22 want to flip it and make it -- the left 22 Page 44 nineteen, and the right ten, the BZA may be able to work that out. THE COURT: Why does the BZA have to get involved in that? MR. MITCHELL: The BZA has got to grant a variance. THE COURT: If they grant the variance right here, okay, if they grant it, if he measures all these off, and it shows whatever it shows, thirty-three feet, sixteen feet, whatever it is, and he puts it down, and his prospective buyer, Mr. Smith, from Fairfax, comes in, and he doesn't like that one, and he wants plan one instead of plan three, what do they have to do then, under your scenario, to accommodate the buyer, Mr. Smith? MR. MITCHELL: Well, if -- if a given lot, let's say, for example, has -- the variance has been granted so that the left setback is ten feet, and the right setback is twenty feet, and the guy from Fairfax comes in -- THE COURT: Wants to rearrange it. Page 45 MR. MITCHELL: If it won't fit within that envelope, and he wants to be over closer to the other one -- THE COURT: Right. MR. MITCHELL: -- and nothing else had happened before, he would apply to the BZA for a variance to change -- to change the setbacks. THE COURT: And of course, that's not going to amount to a constitutional deprivation on his part, it's just a matter of taste; he'd rather have a pink Cadillac than a black one. MR. LAWSON: That's a good point. MR. MITCHELL: And what I was saying, Your Honor, if their Application includes a request to have a -- a setback of ten feet on the left, and twenty feet on the -- on the right, if they put the numbers in and it works out that way THE COURT: Right, MR. MITCHELL: -- but if they ask for the -- for the variance to be -- THE COURT: They'll slide it. 12 (Pages 42 to 45) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 46 1 MR. MITCHELL: -- granted for it to be 1 2 flipped then, you know, the BZA can very well 2 3 consider that as a part -- a part of that 3 4 Application. 4 5 I can't say that they wouldn't do 5 6 that. 6 7 THE COURT: Well, why can't the BZA 7 8 approve any one of these five footprints on any 8 9 one of these lots, with the prospective 9 10 measurements to the -- for the size of the 10 11 structure, and locate it within the footprint of 11 12 applicability, the ten -foot, twenty -five-foot, 12 13 ten -foot setback lines? 13 14 MR. MITCHELL: Well, if I understand 14 15 what you are saying, Judge, I would point out -- 15 16 THE COURT: In other words, why 16 17 couldn't they approve five plans instead of one 17 18 at a time? Any one of these five will work 18 19 fine. Why couldn't they do that? There is 19 20 nothing that would prevent them from doing that; 20 21 is there? 21 22 MR. MITCHELL: If -- if -- I'm not 22 Page 47 1 sure I understand your question. 1 2 THE COURT: Well, let's say he's got a 2 3 three -bedroom rambler, a four bedroom rambler, a 3 4 three -bedroom split level -- 4 5 MR. MITCHELL: And there are different 5 6 styles shown. 6 7 THE COURT: -- and one of them goes 7 8 like this (indicating), and the other one goes 8 9 like that (indicating). Why couldn't they 9 10 approve all of those, and say you can put it 10 11 anywhere you want, inside of this magic border? 11 12 Why can't they do that? 12 13 MR. MITCHELL: Well, they've got to 13 14 set -- they've got to determine what's 14 15 necessary, what variance is necessary, in order 15 16 to alleviate the hardship. 16 17 And Your Honor, what they -- what they 17 18 have suggested -- 18 19 THE COURT: And when they build it, 19 20 and stake it out, why can't they come and fill 20 21 in the blanks after they put it on the ground? 21 22 MR, MITCHELL: Because the BZA has got 22 Page 48 to determine what the variance is, Your Honor. THE COURT: Well, if they grant it to him, and say, you can put it anywhere you want inside of here, what is wrong with that? MR. MITCHELL: Because -- because I don't think the BZA is meeting their legal requirement to do it that way. THE COURT: Okay. MR. MITCHELL: And I will tell you, Judge -- THE COURT: How about the Zoning Administrator, before you get to the BZA? Can't he do that? MR. MITCHELL: He cannot grant a variance. THE COURT: So we are still talking about the BZA trying to, in effect, authorize building of houses on lots that are, essentially, unbuildable right now, because they can't -- MR. MITCHELL: And they will grant -- THE COURT: -- they can't build on a Page 49 thing that's this (indicating) big. MR. MITCHELL: If they find that it's unbuildable, and constitutes -- in that case it would be a constitutional impermissible hardship, then they grant the variance necessary to alleviate that hardship. THE COURT: Right. MR. MITCHELL: Now you've got to remember, Judge, what they are asking for, the ten -foot sideline, and the twenty -five-foot sideline, is exactly the same variance that they requested in 2003 that was turned down. THE COURT: Right. MR. MITCHELL: If that was the case, they don't need to put sample footprints on there. They don't mean anything. They absolutely don't mean anything. They just said, you know, give us a ten -foot sideline -- setback, and a twenty -five- foot setback, and we'll arrange the houses anywhere in there we want to. And that was the reason for saying 13 (Pages 46 to 49) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 50 you've got -- you've got to put the footprint on there, so we know what we're talking about. THE COURT: Well, I thought the real crux of the case, when it first popped up its evil head in front of me, was dealing with the fact that it was going to cost them a ton of money to go in there and perc everything, is that right, before they sold the first house. And you all acceded to that. MR. MITCHELL: Exactly. THE COURT: And appeared to recognize that that was a practical difficulty, and would not be consistent with good management, sound planning, and intelligent development in this area. But I'm sort of stuck here with these numbers. I can't see what difference it makes to either one of you. Mr. Lawson, why can't you just go out there and measure this stuff and put it down? MR. LAWSON: Well, you know, Mr. Mitchell has helped us a little bit, and Page 51 quite honestly, the County -- THE COURT: I feel, you know, in this case, with you guys, I feel like I'm doing group therapy. MR. LAWSON: That's not a bad analogy. THE COURT: Every time I get you in the room you all start finding common ground, and I like that. MR. LAWSON: The bottom line is -- and Mr. Mitchell has argued this -- we feel like we're being led into a series of boxes, and then we've go to fight our way out of them. The bottom line is, if we do what the County says, which you've already said is impossible, which is to say, go ahead and pick the exact dimensions, set it out on the ground for a hypothetical buyer. If we do that, and get it approved, they kind of argue, and then he wants to change it, it's not a big deal, go back in front of the BZA. But they've given you a case that says Page 52 1 that that is not -- 2 THE COURT: I raised that, that pink 3 Cadillac. I understand. 4 MR. LAWSON: That isn't going to work. 5 THE COURT: I understand. 6 MR. LAWSON: We all admit that. 7 Your Honor has hit it on the head, and 8 you did it back in August. You said to us, give 9 us a sample footprint. Give the BZA something 10 to hang their hat on. 11 We've gotten rid of the drain field 12 thing. We're okay on that. 13 Give them something to hang their hat 14 on so that they know that if they approve this 15 thing, at the end of the day, this is going to 16 look like a conventional neighborhood, and not 17 some kind of a carved out, made -up -looking 18 thing. 19 So we submitted a plat with the 20 setbacks. 21 We limited ourselves to five 22 standards, and we're saying exactly what you Page 53 1 said. BZA, give us one out of the five -- give 2 us five out of the five. We are going to build 3 one of the five. 4 And we'll go one step further. At the 5 end of the day, after the one is built, we'll 6 agree to give up setback, if you will, to 7 conform to what we did. 8 But under no circumstances will we go 9 beyond the ten -foot side, and the twenty-five- 10 foot rear. 11 We thought that was what Your Honor 12 had ruled. And quite honestly, I think it makes 13 sense. 14 If we go the other way, and we stake 15 this thing out on paper, and then the guy from 16 -- I'll call it Winchester -- wants to go back 17 and flip it, or he finds out there's a big crown 18 of rock there that's not on the piece of paper, 19 but it really is in the ground, and he wants to 20 move it over, the BZA is going to say, there's 21 nothing here approaching confiscation. 22 There's no hardship. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design 14 (Pages 50 to 53) w vw.casamo.com info@casamo.com Highview Page 54 1 We've already granted a perfectly good 1 2 footprint, an attractive home, sir. Take it or 2 3 leave it. And we're stuck. 3 4 And I think the County knows that when 4 5 they are saying what they are saying. And I 5 6 think what needs to happen is, let the BZA look 6 7 at what we submitted. 7 8 We've got full blowups of what these 8 9 houses look like, the different styles. These 9 10 are real houses. And let us submit it, and let 10 11 them approve it. 11 12 And only one is going to be built, and 12 13 we are going to be iri conformance, and the 13 14 neighborhood is going to look like a typical 14 15 neighborhood, and we are going to come into 15 16 conformance, and so on. 16 17 But the County, to this point, has not 17 18 allowed us to do that. We submit that that's 18 19 what your order told us to do back in August. 19 20 We did do it. 20 21 And ironically, we've been all around 21 22 the barn about, no, you can't do it, because of 22 Page 55 1 your appeal to the Supreme Court and so on. 1 2 And I submit, we should have been 2 3 there in August, and here we sit, December. 3 4 MR. MITCHELL: Judge, I would point 4 5 out that if you take a look at one of these 5 6 lots, and the footprint that's shown on there, 6 7 and if the variance is granted so that -- so 7 8 that the variance would come up to the exterior 8 9 walls of the side and rear, if it sits on the 9 10 rear lot line, the -- and -- and the variance is 10 11 -- is granted there, then the house doesn't have 11 12 to be put exactly in that position, it can slide 12 13 one way or the other. 13 14 It's very possible that they can make 14 15 a request to the BZA, and the BZA may consider 15 16 that, okay, if -- I'm not sure how to say this. 16 17 But the total variance that was -- the 17 18 total setbacks that would result from this plan 18 19 total so many feet. And so the side setbacks 19 20 may -- may ask that the side setbacks not exceed 20 21 that many feet. 21 22 But what -- what the BZA does is not - 22 Page 56 - my advice to them is, they have to tailor the variance to meet the request. We've allowed the sample footprints to be put on there, rather than completed house plans, the septic tank, with the house ready to go, which is the normal situation where it comes before the BZA, to try to accommodate the circumstances that we have. But the --what they have asked for, putting the sample houses on here, means nothing. They said, just give us ten on the side, twenty-five rear, and you know, that was the same thing they asked for before, without the -- without -- without the sample houses. THE COURT: If they put the sample house on here, at least the Zoning Administrator; Frederick County, the BZA, have a clue as to what is supposed to be going on there. MR. MITCHELL: They are not obligated to anything. Once they get the setbacks they can go anywhere within -- within that setbacks. Page 57 They may -- they may go -- THE COURT: But the BZA would approve only one of these things, right, that's the reason for the measurements? Right? MR. MITCHELL: The BZA would -- would THE COURT: Approve a variance. MR. MITCHELL: Approve a separate variance for each lot. THE COURT: Based upon the measurements you would be provided. MR. MITCHELL: That's exactly right. THE COURT: And if the developer said, no, I can't sell plan three, I will sell plan one, then what do they do? Do they come back and see you again? MR. MITCHELL: (Nods head) THE COURT: That's what I said to begin with; why can't the BZA say, any one of these five is fine with us, if it's located, essentially, in this area shown on this plat? They can't do that? 15 (Pages 54 to 57) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 58 1 MR. MITCHELL: (No response) 1 2 THE COURT: You're afraid that's a 2 3 blanket acquiescence anywhere except ten, ten 3 4 and twenty-five. 4 5 MR. MITCHELL: No, they wouldn't be 5 6 meeting their legal requirement to tailor the -- 6 7 tailor the variance to -- to -- to alleviate the 7 8 hardship. 8 9 They say -- 9 10 THE COURT: Well, the hardship, 10 11 initially, was they couldn't put any houses on 11 12 there; right? 12 13 . MR. MITCHELL: Right. And they've 13 14 identified a house, a fairly large house, that 14 15 they want to put on this lot, given the size of 15 16 the lot. And we said, okay, the BZA really 16 17 likes that. Okay, we'll grant the variance so 17 18 you can put that house on that lot. 18 19 THE COURT: Right. 19 20 MR. MITCHELL: Now what happens, 20 21 Judge, if -- if the house goes on there, then -- 21 22 with the variance that they are requesting, 22 Page 59 1 which is a ten -foot setback, they can -- that 1 2 house can continue to be built up to ten feet -- 2 3 within ten feet of each property line. 3 4 THE COURT: Not as it's shown on here. 4 5 MR. MITCHELL: They are not limited to 5 6 that -- to that footprint. 6 7 THE COURT: Why wouldn't they be? If 7 8 they agree to be limited, why wouldn't they be? 8 9 Why wouldn't you be bound? 9 10 MR. LAWSON: Well, that's exactly what 10 11 they are asking; stake it out on -- he's saying 11 12 exactly that you are limited to it. 12 13 And then how on earth do you go back 13 14 to adjust that? They've given you a house at 14 15 that point, and you're stuck. 15 16 THE COURT: I don't understand what 16 17 you are saying. 17 18 MR. LAWSON: I don't either. I don't 18 19 understand the argument. 19 20 THE COURT: If they say this 20 21 (indicating) is what we want to build, one of 21 22 these five plans we want to build, these are 22 Page 60 sample plans just for the purpose of illustration, but this is generally, if not specifically, where these houses are going to be built, right here (indicating), why wouldn't that be sufficient if they went and measured them out, and put some numbers on there? MR. MITCHELL: (No response) THE COURT: Why wouldn't that work? And then they could put any one of those five on there, in that general area. Why wouldn't the BZA know exactly where it was going to be? It just might have a porch, or an overhang, or something different than, you know, they are going to be different in some minor respects. MR. LAWSON: Precisely, Your Honor. THE COURT: Why wouldn't the BZA then say, okay, we'll grant that variance. You don't have to put a three -bedroom rambler with a rec room in the basement on this lot, you can put any kind of house, but it has to be generally here. Page 61 Why wouldn't that work? MR. MITCHELL: Can I approach, Your Honor? THE COURT: Yes, because I'm not sure I'm understanding, at all, what you are saying. (Whereupon, Counsel approached the bench.) THE COURT: And I think Mr. Lawson is probably taking advantage of my ignorance by appearing to agree with me. (Laughter) MR. MITCHELL: Let's -- let's -- take any lot. Take this lot right here (indicating). THE COURT: All right. MR. MITCHELL: Now looking at this, the BZA, presumably, would grant a variance, I mean -- THE COURT: Right. MR. MITCHELL: -- so that a ten -foot variance on that (indicating) side, and a variance so that the setback would be from here (indicating) to here (indicating) on that side. 16 (Pages 58 to 61) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 62 1 THE COURT: Thirty-five feet. 1 2 MR. MITCHELL: All right. And -- 2 3 THE COURT: And that's already in 3 4 compliance with the twenty -five-foot. 4 5 MR. MITCHELL: Well, no. They -- they 5 6 need a variance to get the twenty-five feet, but 6 7 they happen to be on that twenty -five-foot line 7 8 with the back of this house. 8 9 THE COURT: Right. 9 10 MR. MITCHELL: You get twenty-five- 10 11 foot setback. 11 12 THE COURT: That's the -- 12 13 MR. MITCHELL: So we have a house and 13 14 we have a lot that's got a variance that comes 14 15 back this (indicating) far on that side, and 15 16 that (indicating) far on that side, and that far 16 17 (indicating) on that side. 17 18 THE COURT: Yes. 18 19 MR. MITCHELL: We go to the next one, 19 20 and it's the same way. It depends on how they 20 21 chose to position -- 21 22 THE COURT: And you can measure them 22 Page 63 1 out. And now this guy -- this says number two 1 2 here, on Lot 10 -- what if he wants to put style 2 3 number four house there, can he just do that, 3 4 instead of number two? 4 5 Why couldn't you approve all of these 5 6 styles (indicating), any one of these five 6 7 styles can go in if it's generally located here 7 8 (indicating)? Why can't you do that? 8 9 MR. MITCHELL: You are talking about 9 10 number two? 10 11 THE COURT: This (indicating) is 11 12 number two. And what I'm saying, let's say he 12 13 wanted number four. He didn't want to pay two 13 14 hundred and fifty thousand, he wanted to pay a 14 15 hundred and fifty thousand. 15 16 MR. MITCHELL: Well, he'd be all 16 17 right, because -- because number two is fifty- 17 18 four feet wide, and this is forty-four feet 18 19 wide, so he'd be okay. 19 20 MR. LAWSON: The example is what if 20 21 it's a bigger house? 21 22 THE COURT: Bigger house, okay. 22 Page 64 MR. LAWSON: It's five feet wider. THE COURT: All right. What if it was number four here, like this (indicating) one, and this guy wanted to put number two there, which would be bigger? MR. LAWSON: He has to go to the BZA, which you are not going to get a variance, under your case law. THE COURT: So then why don't you just redraw this to put the biggest house you can find on each one of them, and then you are covered with all of the rest of them? MR. LAWSON: Quite honestly, Your Honor, why don't we just take -- and in my mind, I think we'd be circumventing Your Honor's decision -- but quite honestly, what we could have, I guess, done is measured out the twenty - fives and the tens, and drawn houses that just magically happen to go up to those lines. We tried to be -- THE COURT: I understand what you are saying, but -- Page 65 MR. LAWSON: That's not right. MR. MITCHELL: Then we would -- would raise the issue about it not being appropriate to the size of the lot, which was written in the order. THE COURT: Right. MR. LAWSON: But we didn't think that was appropriate. We thought this was better. THE COURT: Why wouldn't just putting style number one -- I still don't quite understand what the problem is, because even if it was a little house, four, and you wanted to put a bigger house on it, then'you are going to have reduced dimensions to the side lot line. You won't have reduced dimensions to the front lot line, and you won't encroach over the ten -foot side setback. None of these even approach the rear setback, whatever it is. MR. LAWSON: We are asking for a rear to twenty-five. The existing -- THE COURT: All of these will go 17 (Pages 62 to 65) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview Page 66 1 within that; right? 1 2 MR. LAWSON: Yes, yes. It's really 2 3 the sides. Assuming the BZA grants the rear, 3 4 it's really the side issue. And the only other 4 5 thing that comes into play is what if you go to 5 6 locate this (indicating) one, or whichever one 6 7 he was looking at -- 7 8 THE COURT: Right. 8 9 MR. LAWSON: -- and the Health guys 9 10 tell you that there needs to be more separation 10 11 between your well and your drain field, or you 11 12 encounter rock on one side of the property or 12 13 the other, and you want to reverse these -- and 13 14 I will tell you that we've drawn these that are 14 15 reversed -- then we're stuck with that. 15 16 THE COURT: Doesn't this happen all 16 17 the time, in all developments? Don't you have 17 18 changes? 18 19 MR. LAWSON: Sure, sure. 19 20 THE COURT: So why is it a problem? 20 21 MR. LAWSON: It's only a problem here 21 22 because if you go with the County's theory, this 22 Page 67 1 is your envelope. 1 2 THE COURT: I understand that. 2 3 MR. LAWSON: You're stuck. 3 4 THE COURT: I understand. 4 5 MR. LAWSON: But our submittal, we 5 6 think, is consistent with the market. 6 7 THE COURT: But then, when you hit the 7 8 problem, when you hit the speed bump, you can't 8 9 go back to the County and say we want to change 9 10 it? 10 11 MR.. LAWSON: We can't get a variance 11 12 for things like that. 12 13 THE COURT: Because it doesn't rise to 13 14 constitutional proportions? 14 15 MR. LAWSON: Not under his case law. 15 16 THE COURT: Well, that's not his, it's 16 17 the Supreme Court. 17 18 MR. LAWSON: Well, what he would 18 19 represent to the BZA. 19 20 THE COURT: Yes. 20 21 MR. MITCHELL: Let me mention, Judge, 21 22 I mean, one of the things that could be applied 22 Page 68 for to the BZA, and I would certainly consider that they recommend it, given the circumstances of this case, talking about the one we were talking about here, that -- that the total setback from here to here (indicating) what did we say, was twenty-five feet? THE COURT: Yes. MR. MITCHELL: And it's ten feet here (indicating). THE COURT: Thirty-five. MR. MITCHELL: Thirty-five feet. So the two side setbacks total thirty-five feet. If they wanted to move the house that (indicating) some -- THE COURT: It still has to total thirty-five feet. MR. MITCHELL: That's the thirty-five feet setback. THE COURT: What about that? That solves your problem; doesn't it? He's going to approve everything, saying that the two combined setbacks have to equal such and such? Page 69 MR. LAWSON: Actually, I think that was something that was suggested by Mr. Marsh in his many discussions with the County. THE COURT: I don't care about all that. You are starting to sound like divorce cases now. MR. LAWSON: Well, you said this is therapy. THE COURT: Your Honor, they told me. MR. LAWSON: That's right. THE COURT: I had one this morning that went on and on and on today. They were arguing about fifteen minutes pickup time or something, and I was sitting there having a dull pain in my head. MR. LAWSON: I believe it. I think there is a mathematical formula, and I'd have to defer to Mr. Marsh, but there is a mathematical formula that would allow us to get a combined setback of not to exceed X. THE COURT: All right. Are you guys trying to stop them from doing this, or do you 18 (Pages 66 to 69) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 70 want them to do it? MR. MITCHELL: We are not trying to stop them. MR. LAWSON: It looks that way. THE COURT: I'm asking you. MR. MITCHELL: We are not, Mr. Lawson. THE COURT: Not you, I'm asking Mr. Mitchell. MR. MITCHELL: No, we're not trying to stop them from doing it. THE COURT: All right. MR. MITCHELL: I've met with the BZA and they are prepared to go forward on this. It's going to take some staff time to do it. THE COURT: All right. MR. MITCHELL: But they --they have got to -- THE COURT: Well, it looks to me like MR. MITCHELL: The BZA has got to act within its authority. Page 71 THE COURT: I agree with you. And it looks to me like you all are moving a long way toward finally getting the thing developed. And this is probably a good suggestion, and it will probably work, it seems to me. Mr. Lawson? MR. LAWSON: He's suggesting, and his memory is better than mine, we can do a combined, if the side is what the real rub is, we can do a combined side. And the only problem is there are some that are very skinny. THE COURT: You guys need to talk about this. MR. KOSCHENE: We can always say, like the Judge said, take house three and it only fits on that lot. MR. LAWSON: We could probably live with a combined thirty, which would give you, in theory, fifteen on either side, but you may end up with ten and twenty on the other side. Page 72 1 THE COURT: Well, see, this is the 2 kind of detail you guys need to talk about. 3 MR. MITCHELL: I mean, they would need 4 -- they would need to -- what they need to do, 5 if they wanted to take that approach, is they 6 need to -- to show what the -- what these 7 dimensions are here. 8 THE COURT: They need to give you a 9 number over here (indicating). They are built 10 on the setback line, almost everywhere. 11 MR. MITCHELL: And this (indicating) 12 back here. 13 THE COURT: Yes. 14 MR. MITCHELL: We need to know -- to 15 know what they are. And -- and then -- and 16 then, if their Application wants to include the 17 ability to -- 18 THE COURT: Slide it. 19 MR. MITCHELL: -- slide it, with 20 respect to the side setbacks -- 21 THE COURT: Or have a different floor 22 plan within the context of these definitions; is Page 73 1 that right? Because it seems to me -- 2 MR. MITCHELL: Well, I mean, yeah, 3 they put that there, and if the total -- if the 4 total of the two side setbacks are so many feet, 5 then they can slide them either way, and 6 position whatever house however they want. 7 MR. LAWSON: I'm not sure what he's 8 asking for. I mean, I guess -- 9 MR. MITCHELL: I'm not asking for 10 anything. I'm just saying that's an option for 11 you all to apply for. 12 MR. LAWSON: Is the suggestion to draw 13 it, if you will, ten different ways, that is to 14 say, apply each five to each lot, and then 15 reverse them? 16 THE COURT: I think he's suggesting 17 that the Application simply say, the side 18 setback lines will be at least ten feet, and 19 that when you measure this (indicating) out, and 20 this is ten, and this (indicating) is twenty, 21 that's a total of thirty, and so you have thirty 22 feet, you've got some room to play with. 19 (Pages 70 to 73) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Page 74 MR. LAWSON: Not to exceed a combined thirty. I think we could do that. MR. MITCHELL: Now let me be -- let me be specific now. He is not talking about overall, for every lot. THE COURT: No. MR. MITCHELL: We are talking about you give us those dimensions (indicating) and these dimensions (indicating), and the -- the BZA determines the setback necessary to alleviate that hardship. And then the sum of those two sides will be the sum of the side setbacks. THE COURT: Right, so you could slide it. MR. MITCHELL: Right. MR. LAWSON: You could slide it or -- and we need to make this clear -- THE COURT: Build a bigger house. MR. LAWSON: -- use one of the other options or samples. THE COURT: Use one of the other floor Page 75 plans, as long as those setbacks were the same, they total thirty feet. That's what you said. MR. LAWSON: On any given lot. MR. MITCHELL: Whatever the number is; right. THE COURT: Whatever the number is. MR. LAWSON: Does that make sense to you? MR. KOSCHENE: We can't do it. MR. LAWSON: Cannot? Could he explain, just because it's his business? THE COURT: Well, I'll tell you what, I'll walk outside, and then you all explain it, because I'm not going to be doing any explaining to him. But it does seem to me as though you all maybe hit on something that might work. MR. LAWSON: Okay. THE COURT: As far as handling this, I can just hold off a month. MR. LAWSON, Can we borrow your Courtroom for ten minutes and try it? THE COURT: Oh, yes, yes. Is that all Page 76 1 right? 2 MR. MITCHELL: Yes. 3 THE COURT: Okay. If you think it 4 will fly, it suits me. 5 MR. LAWSON: Thank you, Your Honor. 6 THE COURT: We'll recess for ten 7 minutes. 8 (Whereupon, there was a brief 9 recess.) 10 11 (Whereupon, there was a discussion, 12 off the record.) 13 THE COURT: We are back on the record. 14 Mr. Lawson? 15 MR. LAWSON: Your Honor, what we've 16 discussed in your absence, is that we will 17 resubmit, and that we will hold this proceeding 18 in abeyance so that we can file before the BZA. 19 And we drew an example, that what we 20 will do is make a submittal showing the sample 21 dimensions for a home, and we will show the 22 exact dimensions for it. Page 77 1 And I think we said that, for example, 2 in the one that we've shown in red, it would 3 have not less than, or no smaller of a setback 4 then ten feet on one side, and then, in this 5 case, when the house is slid over to the side, 6 there would be a twenty -foot wide on the other. 7 We would also be allowed to submit to 8 the BZA that there may be a variation on that. 9 There could be a flip, if you will, due to lot 10 restrictions and so on, so that the ten -foot 11 could be on the other side, for example, or 12 anywhere in between. 13 Or that somebody could choose a 14 different model. But under any circumstance, 15 the aggregate of the setbacks would not be 16 greater -- and I'm talking side -- than thirty, 17 and that there would never be any less on any 18 given side then ten feet. 19 It does not appear that there is an 20 issue with the twenty-five feet in the rear, but 21 we would -- that would continue to be part of 22 our Variance Application, as well. Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design 20 (Pages 74 to 77) www.casamo.com info@casamo.com Highview Page 78 1 THE COURT: All right. 1 2 MR. MITCHELL: Well -- 2 3 MR. LAWSON: Did I misspeak? 3 4 MR. MITCHELL: Well, I want to be 4 5 clear. When you were saying the twenty and the 5 6 thirty, that was an example. 6 7 MR. LAWSON: I'm using that as an 7 8 example. 8 9 MR. MITCHELL: Each lot will have, 9 10 on the Revised Application that's to be 10 11 submitted, each lot will have the distance from 11 12 the exterior lot -- exterior wall of the sample 12 13 house to the exterior lot line. 13 14 The Application will include a request 14 15 that, with respect to the side setbacks, that 15 16 any variance granted for side setbacks, that the 16 17 total of that variance would apply. 17 18 It could be slid one way or the other, 18 19 for instance, if a variance was granted for a 19 20 ten -foot setback on one side, and a twenty on 20 21 the other, that means there's a total side yard 21 22 setback of -- requirement of thirty feet, and 22 Page 79 1 that could be -- so the house could be 1 2 positioned in any way so that the total side 2 3 yard setback would not exceed thirty feet. 3 4 And the -- with respect to the -- and 4 5 -- and the rear setback would be based upon 5 6 whatever is shown on there, in terms of the 6 7 distance from the rear of the house to the 7 8 exterior lot line. 8 9 THE COURT: All right. 9 10 MR. LAWSON: Hold on a second. 10 11 MR. KOSCHENE: We never agreed to 11 12 that. 12 13 What I said before was that if the 13 14 well has to slide back, and the front of the 14 15, house comes back forty feet off the perimeter 15 16 line, it can never get closer than twenty. But 16 17 if the well has to be there, and the house has 17 18 to slide back, we could do a front to back on 18 19 almost all except those odd lots. 19 20 MR. LAWSON: We could apply the same 20 21 principle. 21 22 MR. KOSCHENE: Yes. 22 Page 80 MR. LAWSON: That if there would be a slide that it would be not less than the twenty- five. We know what our fronts are, because they are vested, and that, we can have an aggregate on that. So you can slide sideways, and you can slide up and back, as well. MR. MITCHELL: You can submit it that way. I will tell you that the issues are a bit different with the front setbacks because of the issue of having houses sit closer to the road than the adjoining houses. MR. LAWSON: But those are vested, remember? We've agreed -- MR. MITCHELL: Oh, I know it, I know it. It can't be reduced. MR. LAWSON: Right. THE COURT: You just don't want to get a situation like in Monahue Street in Winchester where you've got some guy's front of his house is on some other guy's back porch. MR. LAWSON: Quite honestly, we're not Page 81 going to design it that way anyway. We are not going to -- I think we can address that in front of the BZA. From a market perspective, our desire is going to be off the street, Your Honor. THE COURT: All right. MR. LAWSON: It's going to have to be an odd lot to force us that close. THE COURT: Well, it sounds to me like all you need me to do is hold this matter in abeyance and set it for another day to review it. MR. LAWSON: Thank you, Your Honor. THE COURT: And render a decision or receive further argument. How much time do you need, ninety days? MR. LAWSON: When is the next -- THE COURT: Four months? Six months? MR. LAWSON: Is there a meeting in December? MR. MITCHELL: I don't think they are meeting in December. 21 (Pages 78 to 81) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Page 82 MR. LAWSON: Sixty, at least, Your Honor. THE COURT: March? Do you want to select a date in March? MR. LAWSON: Can you just continue it generally? THE COURT: I can. MR. MITCHELL: Yes. Why don't you just do that? MR. LAWSON: We can put it on a Motions Day. MR. MITCHELL: If we need to, we can just put it back on. MR. LAWSON: Thank you, Your Honor. We do appreciate your time. THE COURT: The case will be continued generally at the request of the parties. Thank you, Mr. Mitchell. Thank you, Mr. Lawson. MR. LAWSON: Thank you, Your Honor. THE COURT: It's always nice to see you all. It's a pleasure to see you again, sir. Page 83 (Whereupon, at approximately 2:50 o'clock p.m., the hearing in the above -entitled matter was concluded.) 22 (Pages 82 to 83) Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview abeyance 76:18 8 1: 11 ability 72:17 able 9:5 25:13 28:21 29:14 41:11 44:1 above -entitled 1:14 83:3 absence 76:16 absolutely 49:17 acceded 50:9 accept 6:10 16:8 17:1,8 18:2 20:1 28:8 30:11 acceptance 20:2 accommodate 35:15 44:15 56:7 accomplishment 32:16 acquiescence 58:3 act 19:14 70:21 acts 24:13 address 14:19,20 15:17 21:8 81:2 addressed 8:1 39:14 adjoining 80:12 adjust 59:14 administrative 6:5 9:9 9:16 11:8 16:11,17 17:4,11,14 18:4 20:21 21:10 24:14 28:17 Administrator 6:9 9:9 11:9 15:20 16:8,12 28:5,16 48:12 56:17 admit 52:6 admitted 3:15 advantage 61:9 advice 56:1 advised 7:9 9:2,13 10:15 11:11 13:1 14:11 16:18 17:2 27:6 affirming 6:20 10:6 afraid 30:15 58:2 aggregate 77:15 80:4 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15:2 61:6 County 1:2,8,17 2:6 5:3,4,5 6:2 7:3 9:17 11:4 12:3,9 14:9 16:22 17:3 18:2,7,8 19:11 27:6 28:6,11 32:2,12 35:2 37:5,16 38:13 39:8 41:7 42:11 51:1,14 54:4 54:17 56:17 67:9 69:3 County's 66:22 course 10:11 45:8 court 1:2,16 3:2,6,11 3:17,20 4:3,7,12,15 4:19,22 5:6,17,19 6:16 7:6 8:4,8,12,17 9:22 10:8,9,11,13,17 11:16,20 12:7 13:8 14:14 15:4,19 17:19 18:6,12,17 19:3,9,17 20:5,8,12,15,22 21:5 22:4,7,11,18,22 23:7 23:11,16 24:1,19 25:22 26:22 27:6 28:22 29:1,10,17,20 30:15 31:5,9,17,20 33:4,8,11,19 36:19 37:14,18 38:2,4,6 39:5,7,17,21 40:2,9 40:12,16,18,22 41:2 41:4,8,12,18 42:1,5 42:19 43:9,1144:3,7 44:22 45:4,8,19,22 46:7,16 47:2,7,19 48:2,8,11,16,22 49:7 49:13 50:3,11 51:2,6 52:2,5 55:1 56:15 57:2,7,10,13,18 58:2 58:10,19 59:4,7,16 59:20 60:8,17 61:4,8 61:14,18 62:1,3,9,12 62:18,22 63:11,22 64:2,9,21 65:6,9,22 66:8,16,20 67:2,4,7 67:13,16,17,20 68:7 68:10,15,19 69:4,9 69:11,21 70:5,8,12 70:16,19 71:1,14 72:1,8,13,18,21 73:16 74:6,14,19,22 75:6,12,18,22 76:3,6 76:13 78:1 79:9 80:18 81:6,9,14,18 82:3,7,16,21 Courthouse 1:17 Courtroom 75:21 Courts 11:2 14:6 Court's 12:16 16:21 covered 64:12 create 25:19 crown 53:17 crux 50:4 D 3:1 date 17:7,20,21 19:20 21:22 82:4 day 9:8 12:22 52:15 53:5 81:11 82:11 days 12:10 17:7,9 18:4 18:16 19:13,19 20:7 33:5,17 81:16 deal 19:4,6 51:20 dealing 38:11 50:5 dealt 13:8 December 1:11 55:3 . 81:20,22 decide 4:16 18:12 decided 9:22 decision 6:20 10:6 12:17,21 14:10 16:21 24:19 64:16 81:14 Decree 6:17 26:22 27:5 Defendants 1:9 5:3 defer 69:18 definitions 72:22 delay 33:1 demand 3 6: 10 demands 35:2 demur 16:2 demurrer 4:17 6:1 13:14,17,20,22 14:15 14:18,21 15:2,3,5,12 15:13,17 16:15 17:16 17:17 21:2 26:20 demurrers 4:4 5:2 6:14 12:4 13:15,15 demurring 32:5 denial 12:17 13:7 14:5 denied 6:22 Dennis 3:10 denying 10:6 depends 62:20 deprivation 45:9 described 36:18 design 35:17 81:1 desire 81:4 despite 11:21 16:9 detail 72:2 determination 6:6 9:10 9:17 11:8 16:11 17:5 17:11 18:5 28:6,17 32:8 determine 47:14 48:1 determined 9:11 12:15 12:19 determines 74:10 detriment 19:14 develop 41:13 developed 71:3 developer 57:13 development 11:1 50:14 developments 66:17 difference 18:10 26:9 39:20 50:17 different 5:9 10:21,21 22:17,20 29:20,22 31:1 32:14 35:14 40:3 43:12 47:5 54:9 60:13,14 72:21 73:13 77:14 80:10 difficulty 50:12 diligence 33:21 dimension 22:13 dimensions 8:10 25:17 30:3 37:1 51:16 65:14,15 72:7 74:8,9 76:21,22 disagreement 16:4 discovered 19:11 discretion 25:8 28:21 discussed 76:16 discussion 76:11 discussions 69:3 dismissed 17:13 distance 78:11 79:7 divorce 69:5 document 21:15 22:3 23:15 doing 32:19 34:2 46:20 51:3 69:22 70:11 75:14 drain 36:3 39:11 52:11 66:11 draw 73:12 drawing 38:22 drawn 64:18 66:14 drew 76:19 drill 30:21 Drive 2:4 driveway 36:13,14 driveways 3 5: 10 due 33:20 77:9 dull 69:14 duly 3:3 dwelling 27:20 30:3 E 3:1,1 earlier 19:12 earth 34:5 59:13 East 2:8 edge 7:19 8:10 effect 17:12 24:20 41:3 48:17 eight 24:3 either 50:18 59:18 71:21 73:5 elements 5:21 empty 39:1 encounter 66:12 encroach 65:16 encroaching 36:4 engineer 26:17 entered 6:16 33:17 entirely 34:1,16 entitled 26:5 enunciated 10:18 14:7 envelope 42:4 45:2 67:1 equal 68:22 error 12:16,20 14:9 16:20,20 17:3 18:1 errors 18:21 ESQUIRE 2:3,7 essence 16:14 24:1 essentially 20:16 48:19 57:21 et 1:8 34:8 everybody 38:11 evil 50:5 exact 51:16 76:22 exactly 26:14 36:19 49:11 50:10 52:22 55:12 57:12 59:10,12 60:11 example 37:7,8,10 44:18 63:20 76:19 77:1,11 78:6,8 examples 42:2 Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamb.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com Highview exceed 55:20 69:20 74:1 79:3 excuse 9:18 Exeter 2:4 exhausted 16:17 17:14 21:10 exhibit 41:15,16 exist 34:10 existing 28:13 65:21 expired 20:4 explain 5:22 75:11,13 explaining 75:14 extent 7:5 15:18 16:2,6 28:12 exterior 8:3,11 29:4,5 43:7,8 55:8 78:12,12 78:13 79:8 extra 36:6 F fact 11:5,21 15:17 16:9 16:16 27:10 33:17 37:5 50:6 fair 19:22 Fairfax 42:7 44:12,21 fairly 58:14 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65:17 77:10 78:20 ten -yard 25:18 terms 36:22 39:4,6,10 41:7 79:6 text 23:22 Thank 76:5 81:13 82:14,18,19,20 Thanks 3:19 theory 66:22 71:21 therapy 51:4 69:8 they'd 38:15 thing 9:10 19:12 32:22 34:11 49:1 52:12,15 52:18 53:15 56:13 Page 6 66:5 71:3 things 13:19 16:13 43:2 57:3 67:12,22 think 6:12 16:4 19:7 21:9 23:5,8 29:16 32:6,22 34:19 35:1 36:9 42:14,15 48:6 53:12 54:4,6 61:8 64:15 65:7 67:6 69:1 69:17 73:16 74:2 76:3 77:1 81:2,21 third 35:1 thirty 17:6,9 18:4 19:13,19 20:7 33:5 71:20 73:21,21 74:2 75:2 77:16 78:6,22 79:3 thirty -day 17:8 20:4,17 thirty-five 62:1 68:10 68:11,12,16,17 thirty-foot 36:13 thirty-three 37:21 44:10 THOMAS 2:3 thought 18:8,17,19 32:2,3 50:3 53:11 65:8 thousand 63:14,15 three 15:7 22:1 24:2 42:9 44:14 57:14 71:17 three -bedroom 47:3,4 60:19 threshold 24:17 Thursday 1:11 time 12:1 18:8 19:12 31:4 32:1 41:4 46:18 51:6 66:17 69:13 70:15 81:15 82:15 today 4:16 11:18 69:12 told 17:9 20:1 29:6,8 54:19 69:9 ton 50:6 topography 36:1 total 55:17,18,19 68:4 68:12,15 73:3,4,21 75:2 78:17,21 79:2 transcript 34:15 transmit 15:20 tried 64:20 try 39:1 56:7 75:21 trying 19:22 31:21 39:10 48:17 69:22 70:2,10 turned 49:12 twenty 23:5 38:22 Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com T Highview 44:20 45:16 64:17 71:22 73:20 78:5,20 79:16 80:2 twenty-five 35:5,18 41:21 49:19 53:9 56:12 58:4 62:6,10 65:21 68:6 77:20 twenty -five-foot 46:12 49:10 62:4,7 twenty -foot 77:6 twenty-one 12:10 18:16 two 5:11,15,21 6:18 10:3 15:14 22:1 27:17 33:17 63:1,4 63 :10,12,13,17 64:4 68:12,21 73:4 74:12 two-story 34:8,11 typical 22:13 34:20 54:14 U unbuildable 26:8 48:19 49:3 unconstitutional 24:11 understand 46:14 47:1 52:3,5 59:16,19 64:21 65:11 67:2,4 understanding 6:13 61:5 use 38:17 42:9 74:20,22 uses 24:22 V V 1:1 variance 6:3,6,22 7:4 7:22 9:6 11:12 12:17 13:3 14:4,5,12 15:21 16:9,21 17:1,12 18:3 21:17 23:3,4 24:13 24:18 25: 8,14,16,19 26:1,5,10 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11:13 13:18 14:7 we'll 30:11 35:20 36:4 36:6 49:20 53:4,5 58:17 60:18 76:6 we're 26:5 31:3 32:22 33:14 38:14 39:19 50:2 51:11 52:12,22 54:3 66:15 70:10 80:22 we've 4:5 21:19 29:6,6 31:8 36:17 38:9 40:12 41:6 51:12 52:11 54:1' 8,21 56:3 66:14 76:15 77:2 80:14 whichever 66:6 wide 25:8 36:14 63:18 63:19 77:6 wider 64:1 William 3:13 willing 31:3 Winchester 1:12,17 2:5 2:8 53:16 80:19 Wonderful 3:20 woodlands 41:3 words 28:22 38:17 46:16 work 37:3 44:2 46:18 52:4 60:8 61:1 71:5 75:16 working 38:17 works 45:17 wouldn't 8:5,10 16:4 17:8 37:3 46:5 58:5 59:7,8,9 60:4,8,11,17 61:1 65:9 Writ 5:14,18 6:8 11:19 14:2 15:15,19 16:7 20:18,18 writers 23:22 writing 12:13 32:12 written 33:1 65:4 wrong 43:4 48:4 X x 1:4,10 69:20 Y yard 78:21 79:3 yeah 73:2 York 17:17 Z zoning 5:4 6:9,21 9:8 11:8 14:3 15:20 16:8 16:12 24:6,20 25:6 28:5,16 48:11 56:16 0 03-415 6:17 9:21 13:11 04-428 1:7 1 141:15 1st 3:15 12:5 1:45 1:18 10 63:2 103 2:4 13th 11:17 16th 7:21 8:22 160 2:4 1962 27:10 2 2 1:11 2:50 83:2 2003 6:21 12:18 16:22 49:12 2004 1:11 23:11 22nd 12:12 22603 2:5,8 23rd 13:1 17:10,20 19:19 24th 11:6 25th 9:2 11:9 28 37:10,21 4Z:.8 29 13:20 29th 13:13 3 3rd 12:3 13:16 31 9:20 31st 9:15 4 4th 6:16 5 5th 11:10 540 2:5,9 6 6th 7:2 662-3200 2:9 665-0050 2:5 9 2:8 9th 7:8 9:18 10:14 Page 7 Phone: 703-837-0076 CASAMO & ASSOCIATES, INC. www.casamo.com Fax: 703-837-8118 Court Reporting, Video Depositions, Trial Presentation & Web Design info@casamo.com /' MEETING MINUTES OF THE FREDERICK COUNTY BOARD OF ZONING APPEALS Held in the Board Room of the Frederick County Administration Building, 107 N. Kent Street, Winchester, Virginia, on February 15, 2005. PRESENT: Theresa Catlett, Chairman, Opequon District; Dwight Shenk, Gainesboro District; Robert Perry, Vice Chairman, Stonewall District; Kevin Scott, Shawnee District; and, Dudley Rinker; Back Creek District. :.. ABSENT: 1,ennie Mather, Red Bud District; Robert W. Wells, Member -At -Large STAFF PRESENT: Mark R. Cheran, Zoning and Subdivision Administrator; Bernard S. Suchicital, Zoning Inspector; and, Bev Dellinger, BZA Secretary. CALL TO ORDER The meeting was called to order by Chairman Catlett at 3:25 p.m. JANUARY 18, 2005 MINUTES On a motion by Mr. Rinker, the minutes for the January 18, 2005 meeting were .animously approved as presented. PUBLIC HEARING Variance Request 908-04 of David Hicks, presented by Artz & Associates, for a 40 foot side yard variance, on both sides. This property is located in the 2200 block of Front Royal Pike (Route 522), on the west side. The subject property is identified with Property Identification Number 76A-1-30 in the Opequon Magisterial District. ACTION - VARIANCE APPROVED Chairman Catlett stated that she will turn the meeting over to Vice Chairman Perry as she needs to abstain from the two variance requests from David Hicks. Vice Chairman Perry asked Mr. Cheran to present the staff report. Mr. Cheran gave the background information. 'This application is for a variance for property located in the 2200 block of Front Royal Pike in the Opequon Magisterial District. This property 'is currently zoned .RA (Rural Areas) and the land use is vacant.) The surrounding property is zoned RA and RP (Residential Performance) and the land uses are vacant, residential and school. The applicant is requesting a 40 foot side yard variance on both sides. This property was created in 1946 as noted by the ,ipd and plats included in the agenda. Frederick County adopted a comprehensive zoning in 1967. The Frederick Co. Board of Zoning Appeals 1269 Minutes of February 15, 2005 Minute Book Page restrictions. The neighboring lot was granted a 10 foot side yard and that's all they're asking for. Mr. 'acl assumes that this Board granted it so the precedent has already been set. Mr. Rinker stated that each variance stands on its own, it's not precedent setting. Vice Chairman Perry asked if there were any other questions from the Board and there were none. Vice Chairman Perry asked for a motion. Mr. Shenk made a motion to approve this variance request, seconded by Mr. Scott. The vote was unanimous. PUBLIC HEARING Variance Request #09-04 of David Hicks, presented by Artz & Associates, for a 40 foot side yard variance, on both sides. This property is located in the 2200 block of Front Royal Pike (Route 522), on the west side. The subject property is identified with Property Identification Number 76A-1-30 in the Opequon Magisterial District. ACTION - VARIANCE APPROVED Mr. Cheran presented the staff report. The applicant is requesting a 40 foot side yard variance on both sides of this property located in the 2200 block of Route 522 South on the western side in the Opequon Magisterial District. This property is zoned RA (Rural Area) and the land use is vacant. The peracent properties are all rural areas, except for the property on the west, which is RP (Residential 'formance). The land use is residential, vacant and school respectively. Mr. Cheran further stated the reason for the variance is that the lot predates the current Zoning Ordinance with regards to RA setbacks and prevents new structures to be built. This property was created in 1946 as noted by the deed and plats included in the agenda. Frederick County adopted a comprehensive zoning in 1967. The Frederick County historical map shows this property was zoned A-2 in 1967. The property setback lines at the adoption of the zoning ordinance were 35 feet from the front and 15 feet from the sides. Frederick County amended its Code in 1989 to change the A-1 and A-2 zoning districts to the current RA (Rural Areas) zoning districts. The current setbacks for a property in the RA zoning district abutting lots with residential use are 60 feet front, 50 feet on the rear and sides. The applicant is seeking a 40 foot variance on the sides of this property. Should this variance be granted, the building setbacks will be 60 feet from the front, 10 from the sides and 50 from the rear, as noted on the plat in the agenda. It appears that this variance meets the intent of the Code of Virginia, Section l 5.2-2309(2) and the request for a 40 foot variance from the current setbacks of the RA zoning district may be justified. Should this variance be granted, it will allow having the similar setbacks of the adjacent properties, with structures built prior to the current zoning ordinance. Vice Chairman Perry stated this appears to be a mirror of the previous variance request and Mr. Cheran responded that is correct. Vice Chairman Perry asked if anyone is present to speak in favor of the variance request. Mr. Eric Ertel approached the podium. He stated this is a mirror application of the previous lot. Mr. Ertel felt it was all covered well during the last request. Vice Chairman Perry asked if anyone is present to speak against the request. Again, Frederick Co. Board of Zoning Appeal, Minutes of February 15, 2005 Minute Book Page 1272 Mr. Phillip Summer approached the podium. Mr. Summer reiterated his objection, stating there are loeady two houses crowded on two lots of the same size and the Board just authorized a variance for a rd one and now you're looking at a fourth one. Mr. Summer stated that Mr. Ertel misspoke; Mr. Summer's lot is one half acre. Mr. Summer stated that it might be more important that the Board go and take a look, or have somebody go and take a look, as to what's going on there on these particular lots and how it's all laid out. Mr. Summer objects to the application. Vice Chairman Perry asked if any Board members had any questions and there was no response. Vice Chairman Perry asked if there was any discussion, and there was no response. Mr. Shenk made a motion to approve the variance request, Mr. Scott seconded the motion and it passed unanimously. Vice Chairman Perry turned the meeting back over to Chairman Catlett. PUBLIC HEARING, Appeal Application ##01-05 of Colleen McDonougli, to appeal the decision of the Zoning Administrator in the administration of the Zoning Ordinance pertaining to adjoining property setback requirements. The subject property is located at 162 Hopewell Road in Welltown Heights Subdivision, and is identified with Property Identification Number 32-5-5 in the Stonewall District. ACTION — APPEAL DENIED Chairman Catlett asked Mr. Cheran for the staff report. Mr. Cheran stated this is an appeal of the decision of the Zoning Administrator pertaining to adjoining setback requirements for property located at 162 Hopewell Road in Welltown Heights Subdivision in the Stonewall Magisterial District. The land is zoned RA (Rural Area) and its land use is residential. The adjoining properties are zoned RA and the land use is orchard and residential respectively. The applicant is appealing the decision of the Zoning Administrator in the administration of Frederick County Zoning Ordinance pertaining to the adjoining property setback requirements. The property was created in 1966 as noted by the deed and plats included with the agenda. The deed has recorded plats that set the building restriction lines for lot 32-5-5 as 10 feet from the sides and 50 feet from the front. Staff is requesting to affirm the decision of the Zoning Administrator in the administration of the Frederick County Zoning Ordinance, Section 165-4, Administration and Interpretation of the zoning ordinance by the Zoning Administrator regarding the recorded deed and plat for setbacks and issuance of a building permit for lot 32-5-5 of the Welltown Heights Subdivision. Mr. Cheran stated that for the record, the applicant is here and also the property owner of the subject property is here. Chairman Catlett asked Mr. Cheran if the applicant is not the property owner, and Mr. Cheran responded that is.correct, the applicant is not the owner. Mr. Rinker stated he is confused that there is not a copy of the letter that went to the applicant as to the Zoning Administrator's decision. He asked if the side setbacks need to be addressed. Mr. Cheran stated that when the permit was applied for, sent in with the application, deed and plat showing it was recorded were attached. Staff hand -delivered the Zoning Administrator's Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1273 r decision. Mr. Cheran apologized for not providing the Board with a copy of this letter. The decision of the Wing Administrator was through the application process of a building permit; the applicant submitted pies of the We] Itown Heights Subdivision created in 1966, prior to the zoning ordinance. Asa recorded deed and with the plats, you will note it talks about the setback requirements of that property being 10 feet, and that is what the Zoning Administrator went on and issued the building permit. Since then, the applicant is appealing that decision with reference to today's zoning ordinance. Mr. Rinker stated that they are looking at it opposite from what they normally do, and Mr. Cheran stated that would be correct. Chairman Catlett stated, to set the record straight, if someone comes in with a plat that does have setbacks identified on the plat, those remain in effect if zoning is later changed. Mr. Cheran said yes, if it's prior to the zoning ordinance, that's correct. Chairman Catlett asked Mr. Cheran that in lieu of that plat, he has gone on the deed for this entire subdivision. Mr. Cheran said that's right, and if You read the deed with the plats that accompany it, it identifies the lots and that is what the Zoning Administrator went on when the permits were issued. Mr. Cheran further stated that commonly, the current Zoning Administrator requires that we do site surveys regardless on non -conforming properties. Mr. Rinker asked for further clarification. He said that the County is saying that the setback is 10 feet from each side, and Mr. Cheran said that is correct. Mr. Rinker asked if the applicant is saying that it shouldn't be 10 feet, but it should be today's zoning, which is 50 feet. Chairman Catlett told the members to keep in mind that the applicant is not the owner 9-the property who is the applicant for the building permit. Chairman Catlett asked if the applicant is here. Ms. McDonough approached the podium and stated that she is the owner of the adjacent property. Ms. McDonough gave each member a prepared presentation. Ms. McDonough stated that basically the purpose is to determine or verify the following: that the Frederick County Zoning Administrator correctly detennined the setback requirements for the building of new homes on adjacent properties to her home in the rural area of Hopewell Road, specifically lot 5; if the Zoning Commission actually has the authority to enforce deeds; where setback requirements are not shown or illustrated on land plats, can the Zoning Administrator determine setbacks based on language mentioned in a deed; to confirm that Welltown Heights is currently considered rural area, even though it was parceled out or subdivided in 1967; to'confirm setback requirements for RA areas within subdivided parcels; to confirm that deeds are, actually civil issues and not zoning issues; and, to illustrate the adjacent properties whicb also have been approved at 10 foot setbacks, where the deed does not have any mention of setbacks, for example lot 134. Ms. McDonough further stated that one of the impacts of the approved 10 foot setbacks from the adjacent property line, with the house being so close to the property line, is that the back two acres that she owns are currently land locked. The only way she can get to that back two acres is to put a drive way on her property. Further impacts would be safety, potential neighbor disputes, current and future financial impacts, future adjacent property development, environmental impacts and no alternate drainfield location. Ms. McDonough asked the members to refer to the photographs she provided them that illustrate the proximity of the new construction to the existing property line. She stated that the photograph will show how close this new construction actually is to the operty line. Ms. McDonough referred the members to her diagram titled "New Driveway to exceed 320' Om road frontage". The diagram shows the new home and the approximate location of the drainfield. It Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1274 further shows where the future proposed driveway to get to the back two acres would be located. It needs be located there; there isn't another alternate driveway location because of an existing drainfeld serving r house. To get back to her two acres, this is more than a 320 foot drive on an incline, so on a snowy night coming off that back two acres within ten feet of that drive way will be the corner of his house. In order to avoid any potential safety issues there, there's going to be a financial impact on her part to either put fencing up, and other impacts like financial and neighborhood disputes. Ms. McDonough has copies of all the deeds and they reference a 10 foot setback from the sides, they don't mention the back or the front, and the plats do not show any setback requirements drawn on them, so she's in doubt as to if the zoning was actually made correctly. Based on the fact that the existing deeds for lots 5 and 8 do not show setback requirements on the original plat and the deed only references two sides of the subject property, it's her concern that perhaps the Zoning Administrator has not correctly enforced the zoning requirements for this area. It is also her understanding that at the time she purchased her home, that this area was in an RA zone and that setback requirements would be 50 feet on all three sides regardless of any grandfather clause or regardless of Welltown Heights subdivided parcels of 1966. Additionally, since lot B4 was also approved with a 10 foot setback where the deed nor the plat indicates any setback requirements and since that lot which is currently under construction for a garage should have actually met current RA setbacks of 50 feet, it raises doubt about the zoning approval for lot 5. Vice Chairman Perry asked Mr. Mitchell, attorney for the BZA, which would have precedence, a deed or a plat. Mr. Mitchell said he hesitates to talk on something he hasn't been able to research. However, seems to Mr. Mitchell that the interpretation is based on Section 165-152 of the Zoning Ordinance, which talks about legally non -conforming lots of record. So the current setbacks for the particular zoning district in question are to be applied for all lots unless the most recently legally approved and recorded plat of the property clearly depicts all appropriate terminology and numeric information for different setbacks. Vice Chairman Perry asked Mr. Mitchell if what he is saying is that the plat supercedes the deed and Mr. Mitchell responded that it seems to him that would be the case. Mr. Cheran stated that would be the case, but with the plat running with the deed, that was the determination of the Zoning Administrator because it was platted in 1966. Mr. Mitchell stated if that is the issue, his opinion would be that the plat would control. Vice Chairman Perry asked what if there were no setbacks denoted on the plat. Mr. Cheran stated, on the plat, no; but running with the deed, it does call out those lots. Mr. Rinker asked, if the deed and the plat are recorded together, aren't they coupled together as two documents making one? Mr. Mitchell stated that sometimes they are and sometimes they aren't. 0 Mr. Cheran answered Mr. Rinker that in this case, yes, they did run with it. Frederick Co. Board of Zoning Appeals 1275 Minutes of February 15, 2005 Minute Book Page Mr. Mitchell stated that the County approves the plat, the County does not approve the ached document, the deed. Mr. Rinker said that the deed is taken from an approved plat. Mr. Mitchell said that seems to be the issue here, as to whether or not the deed reflects what's on the plat, or reflects more or different than what's on the plat. Ms. McDonough said there's nothing on the plat. Mr. Mitchell stated that's what the ordinance says, and the ordinance refers to the plat. Chairman Catlett thanked Mr. Mitchell. Chairman Catlett stated that she feels it's important that the Board recognizes that a number of issues were brought up by the applicant which this Board has no control over, such as the land locked lot, the garage being built on B4, etc. The only thing that the Board is here to do today is to determine whether the Zoning Administrator made the correct decision in issuing the building permit for lot 5. She further stated that while the other issues maybe important to the applicant, they are not issues that are under the control of the Board of Zoning Appeals. Chairman Catlett asked if there is anyone else present who wanted to speak in favor of this appeal and there was no response. Chairman Catlett then asked if anyone was present to speak against the appeal. Mr. Shifflett approached the podium and stated that he owns lot 5. He stated that Mr. Cheran has pretty much laid out all the information. The deed does show a 10 foot setback on the sides and the deed also does call for a 50 foot setback from the front. He submitted for and was issued a building permit by Frederick County and at this point, the house is well along on this lot. I-Ie did this based on doing the research and checking the covenants of the subdivision and the covenants do read as spoken, 10 feet on the sides and 50 feet from the front. The house is more than 10 feet; it's between approximately 16 and 17 feet at the closest point. Chairman Catlett asked if there is anyone else present to speak on this appeal and there was no response. Chairman Catlett closed the public portion of the hearing. DISCUSSION Mr. Rinker had some comments about Ms. McDonough's issues. Fle stated that RA covers a large part of the County and this subdivision was put in before we had zoning requirements, so it's still in a RA area even though it's more residential. As far as being here instead of Civil Court, this is the process to get to Civil Court; the BZA is an intermediary before you get to that point. Concerning the drainfield, to get the health permit they have to have a certain amount of reserve in that drainfield for expansion if necessary. Concerning a future drive way, Mr. Rinker would hope that would be done on a right-of-way on the other piece of property instead of the property we're talking about. And land locked lots are really material to this consideration. Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1276 Chairman Catlett asked Mr. Cheran if he stated that the deed was recorded along with the plat the subdivision, and Mr. Cheran responded that is correct. She further asked in any other plat that is recorded today, if the deed is more restrictive, you would still go with the plat according to the RA setbacks at this time. Mr. Cheran stated that i s correct, and for the record, if it's today, because we do have performance zoning, the Zoning Administrator would review all plats in the County that come through that are applied for and if there's any issues, they're rejected and have to be re -submitted. Mr. Mitchell stated that in review, it seems that the ordinance refers to what's on the plat. He thinks that would control, but he would point out, this is before you want an appeal of an administrative decision. If in fact different setbacks apply, and those setbacks would make the property unusable or unbuildable and constitute a hardship, the owner of the property would be eligible for a variance. Mr. Shenk made a motion to affirm the decision of the Zoning Administrator. Mr. Rinker seconded the motion and it passed by a majority vote. PUBLIC HEARING Variance Application #02-05 of High View One, L.L.C., to request variances of side yard setback requirements for each of the following parcels: Identification Numbers 60A-213-A-2 through 26, 28 through 30, 33 through 38; 60A-IC-B-1 through 8, 10 through 16, 20 through 24, 27 through 35, 37 through 48; 60A-1 D-B-I, 6 through 9, 13, 18 through 29; 60A-1 E-B-1 through 25. Further, High View One, L.L.C., requests a variance of the rear yard setback requirements for each of the following parcels: WntificationNumbers 60A�-2B�-A-2 through 26,28 through 30,33 through 38; 60A-IC-B-1 through 8.10 ough 16, 20 through 24, 27 through 35, 37 through 48; 60A-1 D-B-1, 6 through 9, 13, 18 through 29; 60A-IE-B-1 through 25. These properties are located 7.5 miles west of Winchester in Highview Manor Subdivision, on the northwest side of Wardensville Grade (Route 608) and south of Glen Ridge Road, in the Back Creek Magisterial District. ACTION — VARIANCE APPROVED Chairman Catlett asked Mr. Mitchell to step forward and give the Board members a history on this application. Mr. Mitchell stated that because this involves a bit of an unusual case with some legal history, it is appropriate to go over that and put it on the record. This is a case of the approval of a 1962 subdivision that involved 170 some'lots. Of course, that was before a Zoning Ordinance had even been adopted in Frederick County, the first ordinance being adopted in 1967. Therefore, there were no zoning ordinance setbacks that existed in 1962. Little development occurred in this subdivision in the 40 plus years since the plat has been recorded. A few of the lots were sold, a few houses have been built upon. By virtue of Section 165-152 of the Zoning Ordinance, all of the lots are made lots which are legally non- conforming lots of record; which means as legal lots they can be used and built upon in their configuration. However, that same ordinance section says that those legally non -conforming lots, the current setbacks in the ordinance apply. High View One, LLC, which is the applicant, purchased 100 plus lots in 2003 and after doing that, it submitted to the County some proposed boundary line adjustment plats. The #bdivision Administrator ruled at that time that the current side and rear setbacks applied to the lots and ,dust be shown on the plats. With respect to the front, this is a situation similar to the one talked about in Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1277 the last case in that the plats which were recorded in 1962 showed the front setbacks. Therefore, they are sted, but the front setbacks are established by the plat that was recorded in 1962. The 1962 plat did not ow side yard setbacks or rear setbacks. Mr. Mitchell further stated that the Subdivision Administrator said that current setbacks would apply and they had to be shown on these boundary line adjustments plats. High View One contended that it had vested rights by virtue of the 1962 approved subdivision which would preclude the application of current setbacks. In effect, it was saying that there weren't any side or rear setbacks that could be applied to this property and the lots in this subdivision. I-[igh View One filed suit against the County on that vested rights issue, asking the Court to declare that High View One was vested so as to preclude the application of the setbacks. While that case was pending, High View One submitted to this Board of Zoning Appeals a blanket variance application which asked this Board to grant blanket side and rear variances to all of the lots, asking for uniform 10 foot variances resulting in 10 foot side setbacks and 25 foot rear setbacks. This Board denied that blanket variance application, finding there was insufficient information submitted with respect to each individual lot for this Board to make a determination as to each individual lot what variance was needed in order to alleviate a hardship. High View One appealed that decision to the Circuit Court regarding the denial of that blanket variance application. Upon hearing all the issues in the case, the Circuit Court ruled in the County's favor on both issues. The Court found that on the vested rights issue, the High View One did not have vested rights so as to preclude the application of current side and rear setbacks to the property. High View One has appealed that ruling to the Supreme Court of Virginia and that case is now pending. On the appeal of the BZA decision which denied the blanket variance application, the Circuit Court affirmed the decision of the BZA and High View One has not appealed that decision. In the course of the proceedings in the Circuit Court on those two issues, it was recognized that the application of current setbacks to the lots as platted in 1962 would render the lots unbuildable and that High View One could be eligible for variances to alleviate that •rdship. It was also recognized that this represented an unusual situation because of the large number of cuts which have been recognized as legal non -conforming lots by the County. In response to these circumstances and discussions with the Circuit Court, the County told the Circuit Court that if High View One elected to apply again for variances, it could, as it had done before, submit a single application for all the lots in the subdivision and since it was not practical to know the precise house plan that purchasers of the lot would use for each lot, the applicant could file a variance application using a sample footprint for each lot. The County further advised the Court that since the sample house footprint may not be in the exact location that the ultimate purchaser would use, the ultimate house location could vary laterally just so that any side yard variances granted by the Board of Zoning Appeals in their total would not be exceeded. High View One subsequently filed another variance application. The initial application which they filed recently showed sample house footprints but did not show distances from the exterior walls of the sample footprint to the exterior lot lines. it also asked for uniform variances throughout the subdivision, not variances tailored to each specific lot. That application was not accepted for filing. Subsequently, the applicant has revised its application to meet the applicable requirements as to what is necessary and proper and required to be on the plat in order for this Board to be able to properly consider a variance application. Given the house location as indicated by the sample house footprint, your analysis for determining a variance is the same as in any other case. That is, the threshold question for you to determine is whether or not the application of the current side and rear yard setbacks would render the lot unbuildable or unusable, so as to constitute a hardship that meets the requirements of the ordinance in the code. The side setbacks under the current ordinance for the RA district are 50 feet side and rear. These lots being of the size they are, that would in effect render the lots to be unbuildable. If you make that initial termination with respect to the lot, then your duty is to tailor a variance to alleviate the hardship, but y enough to alleviate the hardship. Staff has put together for you and discussed this with you at your Frederick Co. Board of Zoning Appeals �275 Minutes of February 15, 2005 Minute Book Page last meeting, exhibits A 1 through A4 in which they've gone through and for each lot have taken a sample ,6(ouse footprint to determine the distances to the side and rear property lines, to indicate for you what ariance would be necessary to alleviate the hardship given that sample footprint. Mr. Mitchell further stated that as sewage disposal systems have not been located on the property, it was impractical under the circumstances to locate it on 100 plus lots prior to filing this application. Any variance that you would grant with respect to these would be conditioned upon approval by the Virginia Department of Health of a sewer system to serve each lot before the variances would apply. Mr. Mitchell feels it's important that the Board and the public understand what the scope of what the BZA's authority is with respect to this matter. What is before you is a variance application that involves only side and rear yard setback variances. Ifthc application meets the requirements of hardship, in other words that the application of the current setbacks would render the lots unbuildable, then you must grant a variance to alleviate that hardship, and that is the limit of your authority. The Board has no authority to say that this is too many houses in this area and we're not going to approve it to keep you from building the houses. That's not within the scope of the authority of this Board. You're only deciding what the rear and side setbacks would be in order to alleviate the hardship if you find that hardship to exist. It should also be mentioned and noted that granting these variances does not give ultimate approval for development ofthis property. There are sti11 issues of sewer systems to serve each individual lot that have to be approved; the building permit brings into play the building code, land disturbance permits; drainage and things of that nature. Those are things that are not before you. The sole thing before you is 1): does a hardship exist'? And 2): what variances, if any, should be granted in order to alleviate those hardships? Vice Chairman Perry asked if anyone has run an average to see what the minimum distance between two sample houses on two lots would be. Mr. Mitchell stated it was stipulated that the tnimum setback would have to be at least 10 feet, so it would be 20 feet. And that's if the 10 feet butted against each other. Mr. Rinker asked if there is a minimum rear setback. Mr. Mitchell stated that he did not think there is any variance requested that would reduce the rear setback to less than 50 feet, except maybe one or two lots. The only reason the variance is needed to get it down to 50 feet is because of the rule that says that if the adjoining property is agricultural, the setback is 100 feet. Vice Chairman Perry asked if the bottom line of this variance request as it's presented would be simply to simplify the variance request process per lot. Mr. Mitchell responded that he thinks so, but the analysis that you're using on this is not any different than the analysis that you use on any other application. Chairman Catlett asked for comments from the staff. Mr. Cheran read into the record the following: The reason for this variance request is due to the fact that the current side and rear setbacks render these existing parcels unusable. The current side and rear setbacks are significantly larger than the side and rear setbacks that were in effect at the time of the creation of these lots. The effect of the setbacks of the current zoning ordinance as applied without this variance would interfere with any reasonable uses of the property as a whole. The property is located 7.5 miles west of Winchester in the High View Manor Subdivision on the northeast side of Wardensville Grade (Route 608), in the Back Creek Magisterial District. The properties are currently zoned RA (Rural Areas) and the land use is '6cant. The adjoining properties are zoned RA (Rural Areas) and the land use is vacant, agriculture and dential respectively. Thesubdivision known as High View One was created in 1962, as noted by the Frederick Co. Board of "Zoning Appeals �279 Minutes of February 15, 2005 Minute Book Page recorded deed and plat in the agenda. The recorded deed and plats do not have side and rear setback lines ssigned to them. The current zoning ordinance for property in the RA zoning district abutting lots that are sidential use are 60 feet from the front, and 50 feet from the rear and sides. The ordinance requires a 100 foot setback from adjoining properties primarily used for agricultural purposes. The applicant is seeking a variance of the current RA zoning requirements on the sides and rear of the properties on the four charts, exhibits I A — 4A, shown in the agenda. It appears that this variance request meets the intent of' the Code of Virginia, Section 15.2-2309 (2) due to the fact that it would be an undue hardship as a result of the zoning ordinance requirements. Mr. Cheran stated that Mr. Thomas Lawson is representing the applicant and the surveyor who set this up, Mr. Scott Marsh, are here to answer any questions. Mr. Rinker stated that on the application, number 1 1 — describe the variance sought — the last lines state that the side yard will not be less than 30 feet total and reduce the rear setback to 25 feet. Also, number 8 on block B, is down to 10 and he thinks the rest of them are 25 to 50, so we are in essence doing rear setbacks as well. Mr. Cheran explained that some of the setbacks are for lots that are a little different. For example, on lot 2 they're requesting a variance of 13 feet and the resulting setback is 37 feet, the right is 22 feet and the resulting would be 28 feet, the combined setbacks would be 35 feet. They're not requesting any setbacks on some of the lots and some are going to be a little different. Vice Chairman Perry asked if one or two of these lots or more become not eligible for a building permit because of health permit reasons and the owners elected to make a boundary line adjustment and take two lots side by side and make one lot out it, how would the variance then affect that combined lot? Mr. Mitchell responded that the variances that you grant will only affect the lots in the present configuration. Mr. Ty Lawson approached the podium. Mr. Lawson stated to follow up on a couple o the questions, and Scott Marsh can explain it better than he can about the sides, it's a composite and per the agreement that was reached in front of Judge Prosser it's a sliding setback on the sides. The total is approximately 30, but in response to Mr. Perry's question, under any circumstance it could get no smaller than 20 from the adjoining house, if you had the two tens together. And in response to Mr. Rinker's question, Mr. Lawson is not sure that Mr. Rinker was reading from number 11, and he will tell you there are several submissions as they worked with the County and the last one showed that it would reduce rear setbacks to 25 feet. Some of the earlier drafts did show a 30 and as Scott Marsh worked through it, there are some lots you just couldn't fit them in, and they made the correction to make it no fewer than 25 for those specific lots and the charts should so reflect. Mr. Lawson stated that he greatly appreciates Mr. Mitchell's history of this. There are a total of 176 lots, with a total of nine houses already within the subdivision, and High View One owns 116 of those lots. When the subdivision was approved in 1962, there was a deed of dedication that was submitted with restrictive covenants that did have side and rear and front setbacks, but it only had in the plat the front setbacks. There is a request in front of you for variances for only 114 lots, there are two that even with reduced variances, we cannot get a house site on them. Mr. Lawson submitted to the Secretary for the record transcripts from the various proceedings in front of .Judge Prosser. Mr. Marsh was hired to work with Staff to work with a plat and is here to explain why some rear setbacks are what they are. The whole idea is to create a building envelope. The reason they can't be exact and the reason why the Judge thought it wise to allow them to file as they have, is simply because they don't know what the prospective -chasers are going to want, where they're going to want these houses on the lots and the reason they e representative squares of the dimensions of these homes, is you don't know where a bay is going to Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1280 have representative squares of the dimensions of these homes, is you don't know where a bay is going to e, where a bump -out room is going to be and so on; but they're committing that it will no greater than X. _ _ he Judge allowed them not to put the drainfields on the plats; obviously the amount of work and money that would have gone into locating a drainfield only then to be told that you're not going to be granted a variance, would be futile and very costly. Mr. Lawson stated that they agree with what Mr. Mr. Mitchell said is what they're asking for is the variance to allow for a building envelope. Having said that.. everything from this point forward, assuming the variance is granted, would be subject to the building permit process and everything that goes with it and certainly, the science of locating suitable drainfields and that they be approved by the Health Department is recognized. Mr. Scott Marsh approached the podium. Mr. Marsh stated that this is an interesting survey problem only in the sense that we have to try to forecast for you in this application how they would put a house on a lot. Their intent is to show the realistic house types that they can fit on a lot and define a space and a setback and try to create minimums so that everyone is comfortable with those, but also something that gives them the ability to do the design. It took quite a while to actually position what you see here. The setbacks are controlled, particularly the rears, based on the use so if the adjacent land use is agriculture, the setback is 100 feet. If the use of the adjacent land is residential, then the setback is 50 feet. They tried in all cases to use the 50 foot margin and many of the lots, the use is residential, and that's why on your chart, you'll see they're not asking for a rear setback. In the areas where the rear buts up to agricultural land, that's where they're trying to get a variance to a 50 foot rear yard setback. The reason item 11 addresses 25 foot rear is because he wanted to make it clear in the application that yes, there are a few lots that 50 feet will not work. When these subdivisions were done in the 60's, they would do them in sections and then they'd start re -numbering the lots over again as opposed to lot 1 through 116. It took a of time to figure out how to put this chart together, how each lot fit and how the setbacks work so there are some lots that they're asking to reduce the setback to 25 feet whereas it would be 50 feet based on today's ordinance. There are some lots that are not buildable: lot I they're not asking for any variance at all; and lot 37, they're not asking for a variance.. Their intent is for the chart and the plat to be the governing factor for this variance application. They derived the minimum of 30 feet combined side yard setback from the current RA ordinance for two -acre lots. Even though these lots are smaller than two acres, they felt like that is a distance they could live with, and when they start positioning the houses on there, you'll see most of these will fit on a lot and the combination of the Ieft and the right side is in excess of 30. They've tried.to be realistic about what they're asking for. Chairman Catlett asked if anyone is present to speak in favor of the variance request. No one responded. Chairman Catlett asked i f anyone is present to speak against the request. Ms. Cybil Kraft approached the podium. Ms. Kraft stated that in 1962 these lots, about one third of an acre each, were zoned recreational and back in 1990, they were changed to rural. The Board previously made a decision that they were not going to give a variance on the total number of lots they wanted to build on, that there were enough lots that they could combine to make a buildable lot. Route 608 is a narrow, curvy road and it will not uphold the extra traffic. Ms. Kraft feels that this property can be built upon, but anything under two acres should not be allowed. They moved there 26 years ago and it's been peaceful and quiet. Ms. Kraft feels that 116 lots are a lot for variance. Most of the lots there do not perk and there is only one way in and out of the subdivision. Chairman Catlett stated that this Board is not 4e to determine these issues. Ms. Kraft knows it's inevitable that the property will be built on and "eloped, but she thinks we should consider that this be done on a lot that is more than one third of an Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1281 acre. Chairman Catlett asked if anyone else is present to speak against the request. Mr. Louis Kenney approached the podium. Mr. Kenney stated that he is not for or against the request, but he is against the blanket variance for all the lots. Chairman Catlett asked if there is anyone else present to speak against the request. Ms. Ethel Pasqual approached the podium. I-Ier family has owned land there since the 60's. Ms. Pasqual lives in Alexandria, but she went out to the site today. She's asking that we seek a compromise because she has two lots, number 25 and 26, which are buildable lots. The ones adjacent to her, number 24 and 27, are also buildable lots. Ms. Pasqual requests that they leave out the lots on either side of her. Vice Chairman Perry asked Mr. Mitchell, should they grant this variance would they be within the spirit of the code concerning hardships on lots by doing it in a blanket situation as opposed to an individual? Mr. Mitchell responded no, and he suggests that when the application came into you two years ago, that was a blanket application because they were asking for across the board variances of 10 feet on the side and 25 feet in the rear. This is not a blanket variance, although that's not a legal term; in the sense the only thing different here is that it's all being presented to you at one time. You're looking at each lot individually; it's not a blanket across the board. Chairman Catlett asked if anyone else is present to speak against the request. Ms. Pasqual asked what the setbacks are for her property and Mr. Cheran responded that the only setbacks in question today are the ones being discussed in the High View One variance request. Mr. Mitchell told her that if and when she builds on her lots, she will probably need to apply for a variance. Mr. Rinker asked if the roads are state maintained. Mr. Cheran stated that he did not believe these roads are not state maintained. Mr. Lawson stated that they are private parcels and are owned by High View One. Chairman Catlett stated that there have been a lot of points addressed and there is only so much that's within the scope of the authority of this Board, which does not include the subdivision and the size of the lots or perk permits. As Mr. Mitchell pointed out, the first question before us is to determine whether or not a hardship exists for these lots which were approved in 1962 not being unbuildable if they apply current zoning restrictions. If the Board decides this is the case, then the Board needs to decide whether or not to approve these variance requests as have been detailed on exhibits Al through A4, for each of these lots. Mr. Rinker made the following motion in Appeal Application 02-05: Whereas, the High View subdivision plat was approved in 1962; and Whereas 165-152 of the Zoning Ordinance establishes legal non -conforming lot status on the as platted on the 1962 subdivision plat-, and Frederick Co. Board of zoning Appeals Minutes of Februm 15, 2005 Minute Book Page 1282 Whereas, pursuant to § 165-152 the front setbacks on the lots are vested by virtue of the front �tbacks having been shown on the 1962 subdivision plat; and Whereas; the subdivision has been the subject of litigation in the Circuit Court of Frederick County between the County and the owner, in which case the Court has ruled that the subdivision does not have vested rights as to preclude the application of current side and rear setback regulations under the Zoning Ordinance; and Whereas, the Board finds that the application of the current side setback regulations for the RA zoning district to each of the platted lots in the subdivision would interfere with all reasonable beneficial use of the lot and meets the criteria of a hardship under the Frederick County Zoning Ordinance and the Code of Virginia; and Whereas, the Board finds that the application of the current rear setback regulations for the RA zoning district to certain of the platted lots in the subdivision would interfere with all reasonable beneficial use of such lots and meets the criteria of a hardship under the Frederick County Zoning Ordinance and the Code of Virginia as to such lots; and Whereas, in the aforesaid litigation the County has advised the Court that in recognition of the fact that the subdivision was approved in 1962 and that the applicant owns over one hundred lots in the subdivision, the applicant may file a single variance application for all lots and may show on each lot a footprint of a sample dwelling, and this application has been filed on that basis; and Whereas, the Board having found that a hardship exists as to the application of current side etback regulations for each of the platted lots in the subdivision and that a hardship exists as to the application of current rear setback regulations for certain platted lots in the subdivision, the Board's duty is to tailor variances so that variances are approved only to the extent necessary to alleviate the hardship with respect"to each lot. Therefore, the Board hereby approves the side and rear setback variances for lots in Block B. C, D and IS of High View subdivision as set for on exhibits Al, A2, A3 and A4 respectively, which exhibits are hereby made a part of this motion and shall be appended to the minutes of this meeting. The variances hereby approved are expressly subject to the following conditions and/or provisions: 1. The approval of the variances for each lot is conditioned upon the owner of the lot obtaining, prior to the issuance of a building permit for a dwelling on the lot, Virginia Department of Health approval of a sanitary sewer system to serve such lot. 2. The variances hereby approved for each lot shall apply only to the lot in the configuration shown on the plat approved in 1962, and will not transfer to any subsequent consolidation, boundary line adjustment, or other reconfiguration of the lot. 3. With respect to the side setback variances hereby granted for each lot, the Oations of a dwelling on the lot may be varied from the sample dwelling footprint shown on the plats Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1283 locations of a dwelling on the lot may be varied from the sample dwelling footprint shown on the plats 'We with the application, provided that the total of the side setbacks for each lot shall not be less than 'e Combined Resulting Side Setback for each such lot as shown on exhibits Al, A2, A3, and A4, and provided, further; that in no event shall a side setback on any lot be less than ten (10) feet. as requested. Mr. Perry seconded the motion and the variance requests were approved unanimously OTHER Chairman Catlett asked Mr. Cheran the cut off date for the next meeting. Mr. Cheran responded that Friday, February 18, 2005 is the cut off. Mr. Cheran stated that the Legislative Session in Richmond is looking at variances again. "Cochran' is still the law of the land right now until the Legislative Session gets through, there may be some variations to that. It looks like the section of the code is going to stay the same for hardships, but there may be some tweaking that could happen in terms ofcosmetics on structures. As soon as Mr. Cheran receives the revised section, there will probably be a session with Mr. Mitchell to talk about it. Chairman Catlett stated that she received a letter regarding Virginia Certified Board of' Zoning Appeals Program, with training to be from March,) I" to April 1" in Richmond. Chairman Catlett *ted if anyone is interested, she has the particular information. Mr. Cheran encouraged new members especially to attend this program. As there were no other items or new business to be discussed, the meeting adjourned at 5:10 p.m. by unanimous vote. 0 Respectfully submitted, Theresa B. Catlett, Chairman Bev Dellinger, Secretary Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1284 Frederick County historical map shows this property was zoned A-2 in 1967. The property setback lines at adoption of the zoning ordinance were 35 feet from the front and 15 feet from the sides. Frederick .)unty amended its Code in 19.89 to change the A-1 and A-2 zoning districts to the current RA (Rural Areas) zoning district. The current setbacks for a property in the RA zoning district abutting lots with residential use are 60 feet front, 50 feet on the rear and sides. Mr. Cheran further stated that the Code of Virginia, Section 15.2-2309(2) states that no variance should be authorized by the Board unless it finds that (a) strict application of the Ordinance would produce an undue hardship; (b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and, (c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. The applicant is seeking a variance of 40 feet on the sides of this property. Should this variance be granted, the building setbacks for this property would be 60 feet from the front,10 feet from the sides and 50 feet from the rear as noted in the plat submitted with the application. It appears that this variance meets the intent of the Code of Virginia, Section l 5.2-2309(2) and the request for a 40 foot variance from the current setbacks of the RA zoning district maybe justified. Should this variance be granted, it will allow having the similar setbacks of the adjacent properties, with structures built prior to the current zoning ordinance. Vice Chairman Perry asked if the property owner has a set of house plans for this particular lot. As Mike Artz of Artz & Associates was not present, Mr. Eric Ertel approached the �dium on behalf of David Hicks. Mr. Ertel stated that he did not have the plans with him; Mr. Artz was supposed to be in attendance and Mr. Ertel is not prepared to show the Board anything. However, Mr. Ertel knows what the plan is; they are putting up a house that is basically 28 feet wide, two story, 900 square feet per floor. There would be two houses built as there are two lots in question. . Vice Chairman Perry questioned Mr. Ertel that if the planned house is only 28 feet wide, they only need a 39 foot variance. Mr. Ertel stated they had not picked a plan, but that plan could fit on the lot. so that is true. Vice Chairman Perry asked if an is present to speak in favor of this request and Mr. Ertel stated that he is. No one else spoke in favor of the request. Vice Chairman Perry asked if anyone is present to speak against the variance. Mr. Phillip Summer approached the podium, stating that he is an adjacent property owner. He stated that the applicant has already built two houses very similar to the ones that were just described on adjacent lots that are much too close together. Mr. Summer's main concern is that they're going to put two houses on one lot and there's nothing in the plans that show access in terms of drive ways. Mr. Summer is assuming it's off of Route 522 and there's no way to put a drive way in there, and certainly not for two houses. Mr. Summer further stated that there was a dwelling oil the property that was demolished less than two months ago, and now it's still a property of asbestos and insulation and the property owner and the builder have been adding to that pile. Mr. Summer and the co- owner of the adjacent property object to the variance; they think it is way over -packed for the two dwellings they're asking to be placed on this lot; especially in relationship to the surrounding properties. r� Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 1270 Vice Chairman Perry asked Mr. Cheran if there could be two houses on the lot. Mr. Cheran responded that Mr. Ertel spoke incorrectly; actually this is for one dwelling. The following variance request that is to be heard today is the other lot in question. These are two lots next to each other. Mr. Cheran stated for the record that there was a dwelling on this property and it wouldn't meet the non -conforming use. There will not be two houses on this property, just one. Mr. Summer stated he thinks that the existing lots, which are the same size on which two houses were built, that the houses on the lots are too big for the size of the lots and the setbacks and the request for the setbacks enhances that problem. Mr. Summer said they would appreciate it if the Board does not grant the variance. Vice Chairman Perry asked Mr. Cheran what is the requirement For access from Route 522. Mr. Cheran stated that currently the access for that property would be a drive way off of Route 522. As shown on the map included in the agenda, the houses that are currently there do have access to Route 522 South. Those houses, some of them, were built prior to the zoning ordinance. Mr. Summer stated he believed that is not correct. I -le believes those houses, when Route 522 was re -adjusted and reconfigured, were given access to what is now termed Calloway Court. They all have drive ways coming off their properties onto there and they do not use Route 522 at all for access. Asa matter of fact, those driveways that approach off of Route 522have been removed for the lots that are adjacent here. Mr. Summer further stated that the two houses that are there are connected by a 0ivel, single car drive way, that runs out to Calloway Court, Mr. Ertel once again approached the podium. He apologized and stated that he realizes there are two different hearings for the two different lots. When it comes to access to this property, the gentleman who builds the houses that are not question today, is a different applicant and a different builder. Right now there is a paved drive way coming off of Route 522. It will be the intention to come off that same drive way to feed into these lots. Mr. Ertel feels it is a confusing issue to bring the other two houses that were built recently, as they are not part of this equation at all and they use a different access road. Vice Chairman Perry asked Mr. Ertel which lot has this access road that he's speaking of Mr. Ertel said it is the one that is the most southern lot, which is this variance request. Mr. Ertel further stated that when it comes to the density of these lots, it looks like the gentleman who was arguing the point of us getting the structure up here, is on a similar narrow lot that has a structure on it, too, so it goes with the flow of the rest of the structures that are there now. Mr. Scott asked for the size of these lots again. Mr. Ertel stated they are right at 9,000 feet; they're 50 feet wide. Vice Chairman Perry stated that it is his personal opinion that we should not do any more than what is necessary, and he would not be in favor of granting a 40 foot variance if he only needs 0, feet. Vice Chairman Perry does not want to set a precedent. Mr. Ertel stated that they do not have the <.,,use plans. If they are granted what they are requesting, they will find a house that will confine to those Frederick Co. Board of Zoning Appeals Minutes of February 15, 2005 Minute Book Page 127, 0 0 L� HIGH VIEW MANOR TM 60A-1 C-B BLOCK C LOT NO. LEFTSIDE LEFTSIDE RIGHTSIDE RIGHTSIDE COMBINED REAR REAR VARIANCE REQUESTED RESULTING SETBACK VARIANCE REQUESTED RESULTING SETBACK RESULTING SIDE SETBACKS VARIANCE REQUESTED RESULTING SETBACK 1 24' 26' 13' 37' 37' 25' 25' 2 13' 37' 22' 28' 35' n/a 3 13' 37' 22' 28' 35' n/a 4 13' 37' 22' 28' 35' n/a 5 22' 28' 13' 37' 35' n/a 6 1 13' 37' 22' 28' 35' n/a 71 13' 37' 22' 28' 35' n/a 8 13' 1 37 22' 28' 35' n/a 10 12' 38' 23' 27' 35' 50' 50' 11 12' 38' 23' 27' 35' 50' 50' 12 13' 37' 22' 28' 35' 50' 50' 13 12' 38' 23' 27' 35' 50' 50' 14 13' 37' 22' 28' 35' 50' 50' 15 12' 38' 23' 27' 35' n/a 16 13' 37' 22' 28' 35' n/a 20 13' 37' 22' 28' 35' n/a 21 13' 37' 22' 28' 35' n/a 22 1 13' 37' 22' 28' 35' n/a 23 12' 38' 23' 27' 35' n/a 24 13' 37' 22' 28' 35' n/a 27 12' 38' 22' 28' 34' n/a 28 17' 33' 24' 26' 41' n/a 10' 40' 20' 30' 30' 50' 50' 10' 40' 20' 30' 30' S0' 50' M32 10' 40' 20' 30' 30' 50' 50' 10' 40' 20' 30' 30' 50' 50' 16' 34' 30' 20' 46' 50' 50' 34 12' 38' 24' 26' 36' 50' 50' 35 20' 30' 12' 38' 32' 50' 50' 37 10' 40' 20' 30' 30' 50' 50' 38 10' 40' 20' 30' 30' 50' 50' 40 10' 40' 20' 30' 30' 50' 60' 41 20' 30' 10' 40' 30' 50' 50' 42 10' 40' 20' 30' 30' 50' 50' 43 10' 40' 20' 30' 30' 50' 50' 44 101. 40' 21' 29' 31' 50' 50' 45 10' 40' 20' 30' 30' 50' 50' 46 10' 40' 20' 30' 30' 50' 50' 47 10' 40' 20' 30' 30' 50' 50' 48 10' 40' 20' 30' 30' 50' 50' EXHIBIT "A2" 0 0 HIGH VIEW MANOR TM 6OA-1 D-B BLOCK D LEFTSIDE LEFTSIDE RIGHTSIUE RIGHTSIDE COMBINED REAR REAR VARIANCE REQUESTED RESULTING SETBACK VARIANCE REQUESTED RESULTING SETBACK RESULTING SIDE SETBACKS VARIANCE REQUESTED RESULTING SETBACK 20' 30' 39' 21' 59' nla 12' 38' 23' 27' 35' n/a E 12' 38' 23' 27' 35' nla 12' 38' 23' 27' 35' n/a 12' 38' 23' 27' 35' n/a 13' 37' 22' 28' 35' n/a 22' 28' 13' 37' 35' n/a 12' 38' 23' 27' 35' n/a 20 13' 37' 22' 28' 35' n/a 21 12' 38' 23' 27' 35' n/a 22 13' 37' 22' 28' 35' n/a 23 12' 38' 23' 27' 35' n/a 24 1 23' 27' 12' 38' 35' n/a 25 10' 4V 21' 29' 31' nla 26 11' 39' 21' 29' 32' n/a 27 22' 28' 1 12' 38' 34' n/a 28 12' 38' 23' 27' 35' nla 29 30' 20' 10' 49' 40' n/a EXHIBIT "AT' HIGH VIEW MANOR TM 60A-1 C-B BLOCK C LOT NO. LEFT RIGHT COMBINED REAR 1 24' 13' 37' 25' 2 13' 22' 35' n/a 3 13' 22' 35' n/a 4 13' 22' 35' n/a 5 22' 13' 35' n/a 6 13' 22' 35' n/a 7 13' 22' 35' n/a 8 13' 22' 35' n/a 10 12' 23' 35' 50' 11 12' 23' 35' 50' 12 13' 22' 35' 50' 13 12' 23' 35' 50' 14 13' 22' 35' 50' 15 12' 23' 35' n/a 16 13' 22' 35' n/a 20 13' 22' 35' n/a 21 13' 22' 35' n/a 22 13' 22' 35' n/a 23 12' 23' 35' n/a 24 13' 22' 35' n/a 27 12' 22' 34' n/a 28 17' 24' 41' n/a 29 10' 20' 30' 50' 30 10' 20' 30' 50' 31 10' 20' 30' 50' 32 10' 20' 30' 50' 33 16' 30' 46' 50' 34 12' 24' 36' 50' 35 20' 12' 32' 50' 37 10' 20' 30' 50' 38 10' 20' 30' 50' 40 10' 20' 30' 50' 41 20' 10' 30' 50' 42 10' 20' 30' 50' 43 10' 20' 30' 50' 44 10' 21' 31' 50' 45 10' 20' 30' 50' 46 10' 20' 30' 50' 47 10' 20' 30' 50' 48 10' 20' 30' 50' HIGH VIEW MANOR TM 60A-1 D-B BLOCK D LOT NO. LEFT RIGHT COMBINED REAR 1 20' 39' 59' n/a 6 12' 23' 35' n/a 7 1 12' 23' 35' n/a 8 12' 23' 35' n/a 9 12' 23' 35' n/a 13 13' 22' 35' n/a 18 22' 13' 35' n/a 19 12' 23' 35' n/a 20 13' 22' 35' n/a 21 12' 23' 35' n/a 22 13' 22' 35' n/a 23 12' 23' 35' n/a 24 23' 12' 35' n/a 25 10' 21' 31' n/a 26 11' 21' 32' n/a 27 22' 12' 34' n/a 28 12' 23' 35' n/a 29 30' 10' 40' n/a HIGH VIEW MANOR TM 60A-1 E-B BLOCK E LOT NO. LEFT RIGHT COMBINED REAR 1 50' 20' 70' n/a 2 12' 23' 35' n/a 3 12' 23' 35' n/a 4 13' 22' 35' n/a 5 12' 23' 35' n/a 6 13' 22' 35' n/a 7 13' 22' 35' n/a 8 12' 23' 35' n/a 9 22' 13' 35' n/a 10 13' 22' 35' n/a 11 20' 40' 60' n/a 12 12' 23' 35' n/a 13 13' 22' 35' n/a 14 13' 22' 35' n/a 15 12' 23' 35' n/a 16 23' 12' 35' n/a 17 ' 12' 23' 35' n/a 18 19' 21' 40' n/a 19 10' 20' 30' 50' 20 10' 20' 30' 50' 21 20' 10' 30' 50' 22 12' 22' 34' 50' 23 13' 22' 35' 50' 24 12' 23' 35' 50' 25 32' 20' 52' 50' JOR LOT NO. LEFT RIGHT COMBINED REAR 2 13' 22' 35' n/a 3 15' 34' 49' n/a 4 35' 11' 46' n/a 5 10' 20' 30' n/a 6 10' 20' 30' n/a 7 10' 20' 30' n/a 8 30' 10' 40' 40' 9 17' - 25' 42' 25' 10 12' 22' 34' n/a 11 12' 23' 35' n/a 12 12' 23' 35' n/a 13 23' 14' 37' n/a 14 20' 10' 30' n/a 15 50' 11' 61' 25' 16 10' 20' 30' n/a 17 10' 20' 30' n/a 18 10' 20' 30' 50' 19 10' 20' 30' 50' 20 10' 12' 22' 50' 21 23' 12' 35' 50' 22 12' 23' 35' 50' 23 13' 22' 35' 50' 24 13' 22' 35' 50' 25 13' 22' 35' 50' 26 13' 22' 35' n/a 28 12' 23' 35' n/a 29 12' 23' 35' n/a 30 13' 22' 35' n/a 33 13' 22' 35' n/a 34 13' 22' 35' n/a 35 13' 22' 35' n/a 36 32' 11' 43' n/a 38 20' 10' 30' n/a Mark Cheran From: Scot Marsh <smarsh@marshandlegge.com> Sent: Thursday, May 23, 2019 1:10 AM To: Mark Cheran Subject: ID6260 BZA High View Attachments: High View BZA M&L Letter and spread sheets 2-21-2005.pdf; ID6260-SHTs1-3.pdf Mark, I have looked through our file and find that I believe the final variance for the lots is to reduce either the left or right side setback to not less than ten feet and to have the sum of the left and right side setback for a given lot be 30 feet or greater. It appears that the Judge found that a variance for the multiple lots should be allow , but because there are specific building types planned that these structure types should be planned out as we did in the exhibits and to set out the request for specific variance for each of the lots with the guideline that no side yard would be less than 10 feet , and the sum of the left and right side yard would not be less than 30 feet. This was the final for many of the lots but not all. The attached spread sheet shows the final setbacks that were applied for and approved. The rear yards setback was 25 ft or greater per the layout and spread sheets.These spread sheets agree with the plan sheet exhibits 1 through 3. 1 have attached scans from our files , and the summary letter I wrote to the developer after the final approval. As I recall the Judge was not ruling on drainfield issues and felt that the Health dept would have final approval of drainfield sites which would be required for actual construction. I hope this helps clear this up. Let me know if you need any other info. Many thanks Scot Scot Marsh, L.S. - smarsh(5marshandleage.com MARSH & LEGGE LAND SURVEYORS, PLC 560 North Loudoun Street Winchester, VA 22601 Phone; 540-667-0468 Fax: 540-667-0469 www.marshandlegge.com X This email has been checked for viruses by Avast antivirus software. 0 �. www.avast.com NA RSH & LEGGE LAND SURVEYORS P.L.C. 560 North Loudoun. Street, Winchester, VA 22601 ■ 540-667-0468 ■ Fax: 540-667-0469 ■ E-mail.• office@marshandlegge.com February 21, 2005 Mr. Webb Koschene 1981 Jordan Springs Road Stephenson, Virginia 22656 Re: High View Manor BZA Frederick County, Virginia Dear Webb: It was a pleasure to be able to receive approval of the High view One, LLC Board of Zoning Appeals Variance Application. I know that obtaining this final approval has been a long and difficult process; however, I believe that the end result will allow you to proceed with the ability to have design flexibility for each lot. I have enclosed with this letter a copy of the approved documents for your file. As you are aware, the BZA Application is supported by a tabulation spread sheet that specifically addresses each of the variances for the specific lots. The interpretation of this spread sheet is important as you proceed with site plan layout of the individual lots and for permit applications at the time of dwelling construction. One of the most important governing factors is the ability to position a house with a side yard setback no less than ten feet and the combination of the left and right side yard being equal to the combined side yard distance shown on the spread sheet. With regard to the rear setbacks, this has typically been approved for 50 feet. If the use of the adjacent lands to the subject lot were residential, then the county would currently allow for a 50-foot rear yard setback. In some cases, the use on adjacent lands for High View Manor is agricultural, therefore requiring a 100-foot setback. For these specified lots, we were granted a 50-foot rear yard setback. You should be aware that there are several lots that were approved for a 25-foot rear yard setback. These lots are clearly identified on the plan sheets and in the variance tabulation spread sheet. Also, we did not seek a variance for Lots 1 and 37 due to the fact that they appear to be unbuildable. During the Board of Zoning Appeals meeting, the question was raised concerning lot consolidations or boundary line adjustments. This was clarified and stated that the approved variances are for the specified lots in their current platted configuration as defined on these plan sheets. This does not eliminate the ability to provide for drainfield easements on adjacent lots. I am also certain that we could get BZA approval on a case - by -case basis should a situation arise where a lot consolidation or boundary line adjustment be necessary. Mr. Webb Koschene February 21, 2005 Page Two With regard to the private roadways, the question did come up from the BZA regarding state maintenance of the roads. We did clearly report that these are private roadways and would fall under the maintenance and control of a future homeowners association, which would be put in place at some later date during the design and construction process. We carefully explained to the BZA that the road network would be similar to the roads that are found at the Lake Serene and Lake St. Clair Subdivisions in Frederick County, Virginia. A situation that did not come up at the BZA concerns those lots fronting on Virginia Secondary Route 608 (Wardensville Grade). The recorded plat shows fee simple ownership to the centerline of the road and that Wardensville Grade in this area is considered to be a 30-foot wide prescriptive right of way, with the roadway surface maintained by VDOT. The right of way line for this road would be determined by measuring 15 feet from centerline of the road. During the site design phase, it would probably be in your best interests to have current accurate topographic mapping of the roadway area to ensure that the future dwellings are positioned at a point suitable for driveways and access to Route 608. Again, I am pleased to have been able to assist in providing for a positive outcome from the Board of Zoning Appeals. Should you have any questions regarding this, please do not hesitate to call. Sincerely, Scot W. Marsh, L.S. SWM/clh Enclosures Copy to: Thomas Moore Lawson, Esquire APPEAL APPLICATION #02-05 HIGH VIEW ONE, LLC Staff Report for the Board of Zoning Appeals Prepared: February 7, 2005 Staff Contact: Mark R. Cheran, Zoning Administrator This report is prepared by the Frederick County Planning Staff to provide information to the Board of Zoning Appeals to assist thern in making a decision on this request. It may also be useful to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: February 15, 2005 - Action Pending LOCATION: 7.5 miles west of Winchester in Highview Manor Subdivision, on the northwest side of Wardensville Grade (Route 608) and south of Glen Ridge Road. MAGISTERIAL DISTRICT: Back Creek PROPERTY ID NUMBERN: 60A-2B-A-2-26, 28-30, 33-38; 60A-1 C-B-1 -8, 10-16, 20-24, 27- 35, 37-48; 60A-ID-B-1, 6-9, 13, 18-29; 60A-1E-B-1-25 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) District Land Use: Vacant ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) South: RA (Rural Areas) East: RA (Rural Areas) West: RA (Rural Areas) Use: Agricultural Use: Residential Use: Agricultural Use: Vacant REASON FOR VARIANCE: Per the applicant, this variance is being sought due to the fact that the current side and rear setbacks render these existing parcels unusable. The current side and rear setbacks are significantly larger then the side and rear setbacks that were in effect at the time of the creation of these lots. 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X wix e w 'of 13 4 w Lo->ri '► n a ,C�91 S ,10 •L, l LMfAI O � � A0FL91 `d ' Li A LOrI LOI t! • 4 to} rLor 11 �� 4 n • . n o LOT s A db .Lb'\ rr ,4 o Lor e. ,� ♦ P ,r' 4 tI � 1we • • A J��' ' rLor rJ n 4d WU n a LOT , A d4 a LorJ two W °• n 'a • O LorrA r �y $ ♦ 1, Lorr i, 4 B �n �," 7 J" o Ln db � LOT r p LOT! $9, loll, ` Lei Q 1p e C� n ++ n 4 LOT, db wo Lor J IT,0. L•~W b. tx.nDc scut i w • � I��MM�K�IR • ■.��., LOT 0 APPEAL APPLICATION #02-05 HIGH VIEW ONE, LLC Staff Report for the Board of Zoning Appeals Prepared: February 7, 2005 Staff Contact: Mark R. Cheran, Zoning Administrator This report is prepared by the Frederick County Planning Staff to provide information to the Board of Zoning Appeals to assist them in making a decision on this request. It may also be useful to others interested in this zoning matter. BOARD OF ZONING APPEALS HEARING DATE: February 15, 2005 - Action Pending #Pto� LOCATION: 7.5 miles west of Winchester in Highview Manor Subdivision, on the northwest side of Wardensville Grade (Route 608) and south of Glen Ridge Road. MAGISTERIAL DISTRICT: Back Creek PROPERTY ID NUMBER(S): 60A-2B-A-2-26, 28-30, 33-38; 60A-1 C-B-1-8, 10-16, 20-24, 27- 35, 37-48; 60A-1D-B-1, 6-9, 13, 18-29; 60A-1E-B-1-25 PROPERTY ZONING & USE: Zoned: RA (Rural Areas) District Land Use: Vacant ADJOINING PROPERTY ZONING & USE: North: RA (Rural Areas) South: RA (Rural Areas) East: RA (Rural Areas) West: RA (Rural Areas) Use: Agricultural Use: Residential Use: Agricultural Use: Vacant REASON FOR VARIANCE: Per the applicant, this variance is being sought due to the fact that the current side and rear setbacks render these existing parcels unusable. The current side and rear setbacks are significantly larger then the side and rear setbacks that were in effect at the time of the creation of these lots. The effect of the setbacks of the current zoning ordinance as applied would, without this variance, interfere with any reasonable uses of the property as a whole. 0 Appeal Application #02-05 - High View One, L.L.C. February 7, 2005 Page 2 STAFF COMMENTS: The subdivision known as High View One was created in 1962 as noted by the recorded deed and plats included in your agenda. The recorded deed and plats do not have side and rear building setback lines assigned to them. The current setbacks for property in the RA zoning district abutting lots with residential use are: 60'front, 50'rear and sides; the ordinance requires a 100' setback from adjoining properties primarily used for agricultural purposes. STAFF CONCLUSIONS: The Code of Virginia, Section 15.2-2309(2), states that no variance shall be authorized by the Board unless it finds that a) strict application of the Ordinance would produce an undue hardship; b) that such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and, c) that the authorization of such variance will not be of substantial detriment to adjacent property, and that the character of the district will not be changed by the granting of the variance. The applicant is seeking variances of the current RA zoning district requirements on the sides and rear of the properties noted on the four (4) charts in your agenda. (Exhibit A 1-4) It appears that this variance request meets the intent of the Code of Virginia, Section 15.2-2309 (2), as an undue hardship would result the application of the Ordinance requirements. HIGH VIEW MANOR TM 60A-2B-A BLOCK B LOT NO. LEFTSIDE LEFTSIDE RIGHTSIDE RIGHTSIDE COMBINED REAR REAR VARIANCE REQUESTED RESULTING SETBACK VARIANCE REQUESTED RESULTING SETBACK RESULTING SIDE SETBACKS VARIANCE REQUESTED RESULTING SETBACK 2 13' 37' 22' 28' 35' n/a 3 15' 35' 34' 16' 49' n/a 4 35' 15' 11' 39' 46' n/a 5 10' 40' 20' 30' 30' n/a 6 10' 40' 20' 30' 30' n/a 7 10' 40' 20' 30' 30' n/a 8 30' 20' 10' 40' 40' 40' 10' 9 17' 33' 25' 25' 42' 25' 25' 10 12' 38' 22' 28' 34' n/a 11 12' 38' 23' 27' 35' n/a 12 12' 38' 23' 27' 35' n/a 13 23' 27' 14' 36' 37' n/a 14 20' 30' 10' 40' 30' n/a 15 30' 20' 11' 39' 61' 25' 25' 16 10' 40' 20' 30' 30' n/a 17 10' 40' 20' 30' 30' n/a 18 10' 40' 20' 30' 30' 50' 50' 19 10' 40' 20' 30' 30' 50' 50' 20 10' 40' 12' 38' 22' 50' 50' 21 23' 27' 12' 38' 35' 50' 50' 22 12' 38' 23' 27' 35' 50' 50' 23 13' 37' 22' 28' 35' 50' 50' 24 13' 37' 22' 28' 35' 50' 50' 25 13' 37' 22' 28' 35' 50' 50' 26 13' 37' 22' 28' 35' n/a 28 12' 38' 23' 27' 35' n/a 29 12' 38' 23' 27' 35' n/a 30 13' 37' 22' 28' 35' n/a 33 13' 37' 22' 28' 35' n/a 34 13' 37' 22' 28' 35' n/a 35 13' 37' 22' 28' 35' n/a 36 32' 18' 11' 39' 43' n/a 38 20' 30' 10' 40' 30' n/a EXHIBIT "Al" IVIPL"--JI I OL LCt.1 <.lC LFIIV LJ OWI V C i Uri 0, r-Lk, County of Frederick ' Tran # Invoice Type Date Reference 2603 6260BZA Invoice 12/16/04 Proj. #6260 High View BZA PAY TO THE County of Frederick ORDER OF 107 North Kent Street Winchester VA 22601 Date: 12/16/2004 Balance $300.00 Check Number: Check Amt: Discount $0.00 5 n24. $300.00 Pay Amount $300.00 5 -7,2 4 ID/ff6/2004 AN9YNT00 40, -- - "r 0000 5 7 2L. 1:0 5 L404 260S 13 7 1049 7 211' MARSH & LEGGE LAND SURVEYORS, PLC County of Frederick Tran # Invoice Type Date Reference 2603 6260BZA Invoice 12/16/04 Proj. #6260 High View BZA Check Number: 5 24 Date: 12/16/2004 Check Amt: $300.00 Balance Discount Pay Amount $300.00 $0.00 $300.00 RD DELUXE BUSINESS FORMS 1+800-328-0304 w .delweforms.com MARSH & LEGGE LAND SURVEYORS, P.L.C. 560 North Loudoun Street, Winchester, VA 22601 ■ 540-667-0468 ■ Fax. 540-667-0469 December 1 HAND DELIVERED Mr. Mark R. Cheran, Subdivision and Zoning Administrator Frederick County Department of Planning and Development 107 North Kent Street Winchester, Virginia 22601 Re: High View Manor BZA Application Frederick County, Virginia Dear Mark: ■ E-mail: office@niarshandlegge.com V LS C E D E 20 FREDERICK COUNTY PLANNING & DEVELOPMENT Enclosed with this letter you will find the revised BZA application with respective revised plats. It is the intent of this revision to the application to reduce either the left or right side setback to not less than ten feet and to have the sum of the left and right side setback for a given lot be not less than 30 feet. I believe that this request would provide for the necessary flexibility in properly siting a house on individual lots. We have also shown the proposed house types with an overall building envelope. The defined building envelope types were developed from various types of houses that would most likely be sited in this subdivision. It is our hope that the revised application is satisfactory to go before the Board of Zoning Appeals at their next meeting. I look forward to meeting with you on Friday, December 171h to review the application. Your assistance in this matter is greatly appreciated. Sincerely, Scot W. Marsh, L.S. SWM/clh Attachment APPLICATION FOR VARIANCE IN THE COUNTY OF FREDERICK, VIRGINIA 1. The applicant is the owner x other . (Check one) 2. APPLICANT: OCCUPANT: (if different) NAME: High View One, LLC c o omas Moore wson, Esquire NAME ADDRESS Lawson & Silek, P.L.C. 160 Exeter Drive, Suite 103 ADDRESS:_ Winchester, Virginia 22603 TELEPHONE: 110/111-0050 TELEPHONE: 3. The property is located at (give exact directions and include State Route numbers): 7.5 miles west of: -Winchester on the northwest side of Wardensville Grade (Virginia Route 608) and known as Hi ghview Manor Subdivision. 4. The property has a road frontage of and consists of ----.acres (please be exact). SEE .ATTACHED PLATS Page 5 of 9 5. The property is owned by High View One, LLC as evidenced by deed fromWalter L. & Linda S. Ritter recorded (previous owner) indeed book as Instrument o. no. on pag of the deed books of the Clerk of the Court for Frederick County. Please attach a copy of the recorded deed. (See attached Exhibit E) 6. Magisterial District: Back Creek Property Identification Nos.: 60A-2B-A-2 through 26, 60A-2B-A-28 through 30, 60A- 2B-A-33 through 38; 60A-1C-B-1 through 8, 60AAC-B-10 through 16, 60A-1C-B-20 7' through 24, 60A-1C-B-27 through 35, 60A-IC-B-37 through 48; 60A-1D-B-1; 60A-ID- B-6 through 9, 60A-1D-B-13, 60A-ID-B-18 through 29; and 60A-1E-13-1 through 25. 8. The existing zoning of the property'is: RA (Rural Areas) 9. The existing use of the property is: Vacant Residential Lots 10. Adjoining Property: USE ZONING North (See attached Exhibit, High View Manor, -Sheets 1 .through 3) East South West 11. Describe the variance sought in terms of distance and type. (For example: "A 3.5' rear yard variance for an attached two -car garage.") For the parcels described in Item 7 above: Reduce left and right side yard setback where the left or right side yard setback for a given lot will not be less than ten feet and the sum of the left and right side setback will not be less than 30 feet. Reduce rear yard setback to 25 feet. Items shown on attached plats. 12. List specific reason(s) why the variance is being sought in terms of exceptional narrowness, shallowness, size or shape of property, or exceptional topographic conditions or other. extraordinary situation or condition of Property, or the use or development of property immediately adjacent thereto This variance is being sought due to the fact that the current side and rear yard setbacks render each of these existing parcels unusable. Current side and rear yard setbacks are significantly larger than the side and rear yard setbacks that were in effect at the time of the creation of these lots. The effect of the setbacks of the current zoning ordinance as applied would, without this variance, make the lots unusable. Page 6 of 9 13. Additional comments, if any: N/A 14. The following names and addresses are all of the individuals, firms, or corporations owning property adjacent to the property for which the variance is being sought, including properties at the sides, rear and in front of (across street from) the subject property. (Use additional pages if necessary.) These people will be notified by mail of this application: SEE ATTACHED SHEETS NAME Page 7 of 9 14. Names, addresses and parcel identification numbers of adjacent owners: High View One, LLC 9B Loudoun Street, S.W., Suite 210 Leesburg, VA 20175 PIN 50-A-27 Trevor S. and Amy L. Johnson 497 Back Mountain Road Winchester, VA 22602 PIN 60-A-I Trevor S. and Amy L. Johnson 497 Back Mountain Road Winchester, VA 22602 PIN 60-A-2 High View One, LLC 9B Loudoun Street, S.W., Suite 210 Leesburg, VA 20175 PIN 60-A-45 Terry E. and Katrina Lynn Swartz 166 Thwaite Lane Winchester, VA 22603 PIN 60-2-1 Edgar F. and Gletus A. Long 2801 Wardensville Grade Winchester, VA 22601 PIN 60-2-2 Jack L. and Violet L. Lynch 2660 Wardensville Grade Winchester, VA 22602 PIN 60-A-42 Walter L. and Linda S. Ritter 476 Old Charlestown Road Berryville, VA 22611 PIN 60A-1 A-A-15 and 60A-1 A-A-27 through 34 James A. and Misty A. Miller 117 Glen Ridge Road Winchester, VA 22602 PIN 60A-1C-B-9 Kevin A. Shelly 135 Glen Ridge Road Winchester, Virginia 22602 PIN 60A-1 C-B-17 through 60A-1 C-B-19 Dennis M. Pascal 9496 Lynhall Place ' Alexandria, VA 22309 PIN 60A-1C-B-25 and 26 Glendon E. Whitely 454 Girard Street, Apt. 202 Gaithersburg, MD 20877 PIN 60A-1 C-B-36 Walter C. Johnson P. O. Box 36148 Greensboro, NC 27416 PIN 60A-lD-B-2 and 3 James E. H and Jolyn Ludwicic 7645 Logging Lane Indian Head, MD 20640 PIN 60A-1D-B-4 and 5 Lewis N. and Delores Ann Kenney 130 Glen Ridge Road Winchester, Virginia 22602 PIN 60A-1D-B-10 and 11 Robert W. White 133 Valley View Lane Winchester, VA 22602 PIN 60A-lD-B-12, 14, 15 and 16 Peter Mark James 2712 Mosby Street Alexandria, VA 22305 PIN 60A-lD-B-17 Walter L. and Linda S. Ritter 476 Old Charlestown Road Berryville, VA 22611 PIN 60A-2A-A-1 through 3 Daniel Joseph Maguschak 101 Green Way Court Winchester; VA 22602 PIN 60A-2A-A-16 Andrew J. Maguschak 120 Overlook Road Gore, VA 22637 PIN 60A-2A-A-17 through 19 Charles A. Spaid, Jr. 224 Manor Drive Winchester, VA: 22602 PIN60A-2A-A-20 through 26 Diane B. Bross and Helen B. Leake 272 Peppermint Spring Lane Winchester, VA 22603 PIN 60A-2B-A-27 Terry E. and Katrina L. Swartz 166 Thwaite Lane . Winchester, VA 22603 PIN 60A-2B-A-31 Owen S. and Mary E. Mayhew 434 Singhass Road Winchester, VA 22602 PIN 60A-2B-A-32 15. Provide a sketch of the property (you may use this page or attach engineer's drawing). Show proposed and/or existing structures on the property, including measurements to all property lines and to the nearest structure(s) on adjoining properties. Please include any other exhibits, drawings or photographs with this application. SEE ATTACHED SHEET Page 8 of 9 I'0i VJ/ LV V 4 I . 44 r nn U. IJVL/ VVJ 0 Cr k & CD 030004432 TMS DEED made and dated this � d y of February, 2003, by and betweell WALTER L. RUM and LINDA S. his Wife parties of the first, pav� hereinafter called the Grantors, and ,-I ,H 'Py O L T _ r a 'Virginia limited liability Company, party of the second part, hereinafter called the Grantee. f W TNESSETH: That for and in consideration of the sum of Ten ($10.0 .) Dollars, cash in hand paid, and other good and valuable consideration, paid to the Grant6iS.— by the Grantee on or before the delivery of this Deed, the receipt of all of which is hereby ac'Quowledged, the Grantors do hereby grant and convey. with General Warranty and English Covenants of Title unto the Grantee, in fee simple absolute, the following real estate: T— ►CT- - All those certain lots or p improvements thereon'arcels of land, together with the and the appurtenances thereunto belonging, located near Mt. Williams in Back Qeek Magisterial District, Frederick County, Virginia, designated as Lots 2-2-6, 29-30, 33-38, and Park Area No. 1, Block B, Section A; Lots 1-s, 10-16, 20-24, 27-35, 37-48, BIock-C, SectiorY A Lots 1-25, Block E, Section o Lots 1, 6-9, 13; 1$-29; BlOck' D, Section B, High View Manor Subdivision, more panic kdarly described by plats made by Richard. U. Goode, L.S., attached to those certain instruments dated.September 10, 1962, of record in the Clerk's Office of the Circuit Court of Frederick -County., in Deed B©ok 281 at Page. 671 and Deed Book 2.81 at Page 682, to which reference is made for a more Particular description. of the proP�rty herein conve same property designated Tract I in that certainYam.. �g emrportion2 the Deed dated November 15, Zp42 from H19h.View Manor; Inc,, of record in.the aforesaid Clerk's Office as jifid' Record 02W20158. TAX MAP NOS.: 60A-213_A-2-7-6, 28-30, 33-38;.- 40A-C-B-1-8; 10-16, 20-7, , 27-35, 37-48; 60A-E-B-1-25; 6OA-D-B-1, 6-9,13,18-29, aRA-(aA: AlI that certain lot or parcel of land, together with all urtena appnces, rights, rights of way and privileges thereto belon the Northwest side of Road No. 608 about seven and One-half m��W�t of,the City of Winchester is Back Creek Magisterial District, Frederick " County,' Virginia, Containing 32;450 square feet, or 0.7449 ac-re, more or less, c a to plat and survey of Richard U. Goode, C_LS.; dated ,august 14cording, 1959, which plat is attached to the Deed of zaoord in Deed Book 2-82 at'Page 132. This is the k'g 1,3 -Il- Cn «o it �I Cr TMS DEED made and dated this W---' day of February, 2003, by and - betwe WALTER L. OTTER . e h —_ and LINDA S. R_TI'E� his wife, parties of the first P hereinafter called the Grantors,andffiGH VIEW ONE LLC a Vir • . ginia limited liabilit,. company, Ply of the second part, hereinafter called the Grantee. WITNESSETH; That for and in COnslderatron of the sum of Ten ($I0.00) Dollars,_cash in hand -paid, -and -other good and valuable consid eration, paid to the Grantors by the Grantee on or before the delivery of this Deed, the receipt of all of which is hereby acknowledged, the Grantors dohereby grant and convey with General Warranty and En . Covenants of Title unto the Grantee, in fee simple absolute,I�sh the following real estate: �I: All those certain Lots or . improvements thereon and the appurtenances tier unto beion together with the Mt. Williams in Back Creek Magisterial Distrileg, located near designated as Lots 2-26, 28-30, 33-38 �, Frederick County, Virginia, Lots 1-8, 10-16, 20-24, and Park Area No. 1; Block B, Section A; 27-35, 37-48, Block C Section B; Lots 1, 6-9, 13 Section B; Lots 1-25, Block E Subdivision, more 18-2g' Block D, on B, ' Particularly described b High View Manor L.S., attached to those certain • y Plats made by Richard U, Goode instruments dated September 10, 1952, of record in the Clerk's Office of the Page.671 and Deed eWt Court of Frederick.County, in Deed Book 281 at Book 281 at Page 682, to which reference is made for a more Particular description of the P ro same property designated P .perry. herein conveyed: This is a grated Tract I in that ce Portion of 'the from Hi fain Deed dated November 15, 2002 gh View Manor; Inc., of record in .tlie aforesaid Clerk's Offi'ice as 1.an Record 020020158. d TAX MAP NOS.: 60A-2B=A-2-26 27-35, 3748; 60A-E-B-1-25; 60A-D-B--1 6' 93-5, -29. B-1-8, 10-10, 20-24, > ,13,1829. III: All that appurtenances, rightscertain lot or parcel of land, together with , rights of way and privileges thereto belonging, the Northwest side of Road No. 608 about seven and one- fig' located* On. City . Winchester in Back Creek Magisterial Distric Frden West of the Virginia, containing 32,450 square feet, or 0.7449 acre, more or. k County, to plat and survey of Richard U. less, accordin ' plat is attached to the Deed of record meDeed S'' dated Au g August 14, 1959, which Book 282 at Page 132. This is the rC D L.� D i9 same land identified as Tract II in that certain Deed dated November record in, the aforesaid Clerk's Office as band Record 020020158. r 15, 2002 of v TAX MAP NO.: 60-A-4.3 TRACT III: All that certain tract of land lying Back Creek Magisterial District, Frederick County, Y and being situate in acres,1 rood and 12 poles, more or less; and being the Virginia, COntauung 140 in. Tract Three .of the hereinafter referenced deed;_ and a track containingeedescribed . mbre-or less,-and-7-acres, more or less, and which is of record in Deed gook 20 acres, at Page 235. This is the 258 dated November 15 same property identified as Tract IQ in that certain 2002, of record in the aforesaid Clerk's Offs Land Record 020020158. TAX MAP NOS.: 50-A-27; 60-A-45; 60A-A-44 TRACT IV. All that certain tract or parcel of land, together with all improvements thereon and appurtenances thereunto belonging, Frederick County, Virginia, appurtenances located in containing 177 acres, 1 rood and 10 175.1098 acres, more or less, orig- Il described as Lot No. 8 of the Lon p°l�' more or less, and bein r g Ridge Tract on that certain g further the Deed of record in the Clerk's Office of the Caput Court for ttac ed to County, Virgu�rin- Deed Book-199 at Page 333; and as adjusted Frederick Line Adjustment and Grant of Right1 by Boundary between Walter I.. Ritter, et � of Way dated January. Zg, and James Allen Anderso �3' by and aforesaid Clerk's Office as Land Record 030002124, which has a record the thereto showing the adjusted bound P attached the plat of survey drawn b Douglas with area of 175.1098 acres, according to y glas C. I-egge, Land'Surveyor, dated Janu 2003, attached to the aforesaid Boundary Line ary 27, Way. This is the remainder portion of the same le and nt and to of Right of herein by deed dated November 16 Conveyedthe Grantors the aforesaid Clerk's Office as Land Recor 020020161.ea M. D ori' of record in TAX MAP NO.50-A-25 The Grantors do hereby reserve a non-exclusive ingreWegress easement Manor Drive to and from Wardensville Grade (Rt. 608 and ement over Greenway Court as shown on the aforesaid plat of High View Manor Subdivision of record in Deed B ook 281 at Page 671, et Ste' and Deed Book 281 at Page 682, et seq. K This conveyance is further made subject to that certain right of way granted anc reserved in that Boundary Line Agreement and Grant of Right of Way dated January 28,.2003 by and between Walter L Ritter, et ux, and James Allen Anderson, of record in the aforesaid Clerk's Office as Land Record 030002124, which is by this reference made a part hereof as if set out in full. The Grantors expressly reserve a non -exclusive -easement -over the-175:109$- acres (Tract IV above) for ingress/egress to their property contiguous. The land herein conveyed contains 350 acres, more or less, in the aggregate. .This conveyance is made in gross and not by the acre. WITNESS the following signatures and seals. 4TeERL RrMR (SEAL) 1..uV1JA S. RTTI�R EAL) STATE :OF VJRGMA CITY OF WINCHESTER, TO,WTT: a Notary Public in and fo r the State and jurisdiction aforesaid, do hereby certify that WALTER L PXMR and LMDA ' S. names are signed to the fore oin � RI1'I'ER, whose g g instrument, dated February, AZ' �W3, have personally appeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand this Jty of Feb ruary, 2003. MY Commission expires `�`�t�►iu►tuurr,���/ �L�E L ; fii��•, 4NotaryPublic , o N ' , • 1 u ,r,EM. to T*k GYowavrpa = • U OF =.• VIRGIMA: Ff ED rrli' SCI' NU ERICK COUNTY, This instnunent of writin was produced . g p uced tome on `�•,,�TgRY Pvo�,``IS� This conveyance is further made subject to that certain right of way granted and reserved in that Boundary Line Agreement and Grant of Right of Way dated January 28,. 2003 by and between Walter L- Ritter, et ux, and James Allen Anderson, of record in the aforesaid . Clerk's Office as Land Record 030002124, which is by this reference made a part hereof as if set out in full, The Grantors expressly reserve a nonexclusive easement over the 175.1098 acres (Tract IV above) for ingress/egress to their property contiguous. The land herein conveyed contains 350 acres, more or less, in the aggregate. This conveyance is made in gross and not by the acre. WITNESS the following signatures and seals. IWIM, Muhl - STATE !OF VIRGMM CITY OF`WINCBESTER, TO,WIT: I' a Notary Public in and for the State an ce d jurisdictionaforesaid, do hereby rtify that WALTER L. RrMR and LINDA * S. RPT E.R, wbose names are signed to the foregoing instrument, dated February, AV,4�X13, have personally aPPeared before me and acknowledged the same in my State and jurisdiction aforesaid. Given under my hand this al d y of February, 2003. , • My Commission expires ```��ti�ti a }t urrrrrr��r' 4NotaryPublic ......,,..��'�. 11566Rittcr�A�DM' ncr to Ttipk (}own ' U O F = aN — ' L P VIRGIMA FREDERICIC COUAiTy, s : �' ' •�'4G 1NN,.= G �� This instrument of writing was produced tome on �TgRi PV���``� q: z Document Approval Form C �E wE 16 10 FREDERICK COUNTY PLEASE REVIEW THE ATTACHED DOCUMENT. IF THIS DOCUMEN Mp_ft PREDERI K COUNTY APPROVAL PLEASE INITIAL AND PROVIDE THE DATE AND TIME OF YOUR APPROVAL. IMF THIS DOCUMENT DOES NOT MEET YOUR APPROVAL PLEASE PROVIDE COMMENTS AS TO WHAT YOU WOULD LIKE TO HAVE COMPLETED. INITIALS Candice David Mark Susan Eric COMMENTS: DATE & TIME �C�yReceived by Clerical Staff (Date & Time): J� q`� Cam'► ✓ ti �� COUNTY of FREDERICK Department of Planning and Development 5401665-5651 FAX:540/665-6395 NOTIFICATION OF PUBLIC HEARING February 1, 2005 TO: THE APPLICANTS) AND/OR ADJOINING PROPERTY OWNER(S) RE: APPEAL APPLICATION #02-05 OF HIGH VIEW ONE, LLC On behalf of the Frederick County Board of Zoning Appeals, you are hereby notified of a public hearing being held on Tuesday, February 15, 2005, at 3:25 p.m., in the Board Room of the Frederick County Administration Building at 107 N. Kent Street, Winchester, Virginia. This is a public hearing to consider the following application: Variance Application #02-05 of High View One, L.L.C., to request variances of side yard setback requirements for each of the following parcels: Identification Numbers 60A-213-A-2 through 26,28 through 30,33 through 38; 60A-IC-B-I through 8, 10 through 16,20 through 24,27 through 35,37 through 48; 60A- I D-B-1, 6 through 9, 13, 18 through 29; 60A-1 E-B-1 through 25. Further, High View One, L.L.C., requests a variance of the rear yard setback requirements for each of the following parcels: Identification Numbers 60A-213-A-2 through 26,28 through 30,33 through 38; 60A-1 CB- I through 8,10 through 16,20 through 24,27 through 35,37 through 48; 60A-1 D-B-1, 6 through 9, 13, 18 through 29; 60A-1E-B-I through 25. These properties are located 7.5 miles west of Winchester in Highview Manor Subdivision, on the northwest side of Wardensville Grade (Route 608) and south of Glen Ridge Road, in the Back Creek Magisterial District. Any interested parties having questions or wishing to speak may attend this hearing. A copy of the agenda will be available for review at the Handley Library and the Bowman Library the week of the meeting, or at the Department of Planning and Development located at 107 North Kent Street in Winchester, Virginia. Sincerely, / Mark R. Cheran Zoning and Subdivision Administrator MRC/bad 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 ° same land identified as Tract H in that certain record in the aforesaid Clerk's Office Deed dated November 15, 2002 of Land Record 020020159. TAX MAP NO.: 60-A-43 c c-\ c\- C g-rk (t -Or TRACT E: All that certain tract of land 1 Back Creek Ma Y�g and be' Magisterial District, Frederick Co � s2tuate in.. acres, 1 rood and 12 poles, more or less; and be' t', Virginia, containing 140 in.Tract Three of the hereinafter referenced deed the same real estate described more or less, and 7 acres, more or less, and which is o f rrecord containing acres, at Page 235. This is the same property m Deed Bookg dated November 15 p Pem' identified as Tract III in that certain Deed 2, of record in the aforesaid Clerk's Office as Land Record 020020 g, b TAX MAP NOS -27; 60-A-45; 60A-A-44 \ ��� �� TRACT IV: All that certain tract or parcel of land, improvements thereon and a together with all Frederick Coun PP�enances thereunto belonging, 'located in ry' Virginia, containing 175.1098 acres, more or less, originally containing 177 acres, 1 rood and 10 Y described as Lot No. 8 of the Lon poles' 'more Or. less, and being further the Deed of record in the Clerk office c. Tract of e � certain Plat attached to County, V'r�arm Deed Book 199 at Page 333,� and as aCourt djusted for Frederick Line Adjustment and Grant of Ri 1 y Boundary between Walter L Ritter, Right of Way dated January 28, ux, and James Allen Anderso 2003, by and aforesaid Clerk's Office as Land Record 030002124, which has a plat in he e thereto showing the adjusted bound d the plat of survey drawn by Douglas �� area of 175.1098 acres, according to gI C. l�gge, Land'Surveyor, dated January 27, 2003, attached to the aforesaid Boundary Line Way. This is the remainder Agreement and Grant of Right of portion 0 the same land conveyed to the Grantors herein by deed dated November 16 2 the aforesaid Clerk's Office as from Andrea M. Dassori, of record in Land Record 020020161. TAX NO. The Grantors do hereby reserve a non-exclusive in gess/egress easement over Manor Drive to and from Wardensville Grade (Rt. 608) and Greenwa Court urt as shown on the aforesaid Plat of High View Manor Subdivision of record in Deed Book 28 seq' and Deed Book 281 at Page 682, et Seq.1 at Page 671, et 2