Planning

BOARD OF ZONING APPEALS
SEPTEMBER 14, 2009
MEETING MINUTES

Present:  Chair John Bradshaw, Members Gifford Childs, Linda Russell, Kim Cash, and Alternate Ron Moyer

Staff:    Fred Boger, Planning Director

Call to Order:  Mr. Bradshaw called the meeting to order at 7:37 P. M.

Minutes of meeting of August 3, 2009:    Ms. Cash made a motion to approve the minutes of August 3, 2009 as presented, Ms. Russell provided the second, and motion passed 5-0.

Special Use Permit #2009-005 – Chad Artz
Mr. Boger reported that Mr. Artz recently applied for an electrical permit to energize a 12’ x 20’ storage building on property located on Highland Drive in the Highland on the James Subdivision near Howardsville, Virginia, Tax Map #83-2-4.  This is the first structure on the lot; therefore, a Special Use Permit is required for this building, which, according to Mr. Artz, will be used to store building supplies and tools for future building of the primary residence.

Mr. Artz was sworn in  and stated that he would be starting construction on his primary residence by August, 2010.  The shed has already been placed on the property.

Mr. Childs said that he would recommend that conditions be placed on the permit stating that construction of the primary residence would begin within a year and that the building would not be used for residential purposes.  Mr. Artz said he would have no problem with those conditions.

The public hearing was opened.

Jody Felmont was sworn in.  She lives at 1148 Highland Drive and stated that she has no objection to the storage building being built.  She looks forward to having the Artz as neighbors.

Bill Shannon was sworn in.  He is president of the Homeowners’ Association and has no objection to the storage building being built.

The public hearing was closed.

Ms. Russell said she had no problem approving the building with the condition that construction on the primary structure begins within a year.  She made a motion that the BZA approve Special Use Permit #2009-005 for Chad Artz to allow construction of a 12’ x 20’ one story storage building on Highland Drive with the condition that construction of the primary residence on this site must begin before September 14, 2010 and that the storage building may not be used as a residence.
Mr. Moyer provided the second, and motion passed 5-0.

Variance #2009-004 – Darrell & Robin Fitzgerald and Herman and Mary Fitzgerald
Mr. Boger reported that Mr. Darrell Fitzgerald appeared before the BZA in August, 2009 requesting a variance to reduce the required lot sizes to permit division of 1.71 acres on which two dwellings are currently located at 1284 and 1304 Beech Grove Road.  At that hearing, a decision was made by the Board prior to holding the public hearing, which voids the decision.  Consequently, Mr. Fitzgerald is applying again for a variance to lot size to accommodate two dwellings on 1.71 acres.  The property is owned by Mr. Herman Fitzgerald; Mr. Darrell Fitzgerald is his son.

Mr. Boger said the Board has three options:  1) consider 1 acre for a family division and .71 acre for the residue; 2) 3 acres for a family division – 1 acre for Darrell. Fitzgerald and 2 for Herman Fitzgerald; or 3) divide 1.71 acres equally into two nonconforming lots.  Regardless of the configuration, there is only 1.71 acres available for the division.

Mr. Bradshaw pointed out that there is no recent survey, so it is possible that when the property is surveyed, it may be less than 1.71 acres which would set Mr. Fitzgerald up for a violation of the variance conditions.  Ms. Cash said if there were two full acres, she wouldn’t have a problem with approving two 1-acre lots; however, that is not the case as of this time.  Mr. Moyer said the property should be surveyed to determine exactly how much property there is.

Mr. Darrell Fitzgerald was present at the meeting.

The public hearing was opened, there were no comments, and public hearing was closed.

Mr. Childs said he didn’t see anything changing with the division of this property.  There are two houses on the same property now and that wouldn’t change.  Mr. Herman Fitzgerald would be prohibited by covenant to sell his house within five years of the division.  Ms. Cash pointed out that the covenant restriction applies to Mr. Darrell Fitzgerald’s house – not Mr. Herman Fitzgerald’s.

Mr. Darrell Fitzgerald said there is a common septic on the property, but separate wells for the two houses.

Ms. Russell said that it appears the hardship has been created by the owner by dividing off other lots, which left only 1.71 acres.  She is sympathetic to the applicants, but if this variance is approved, it will nullify the lot size requirements in the ordinance.

Ms. Cash said that in order to grant a variance, the need must be unique to this property, and not the County.  There are many such lots in the County, and the approval of this division could set a precedent for future such requests.

Mr. Bradshaw agreed that the hardship was self-imposed; however, it’s difficult for citizens to keep up with zoning ordinance changes that affect lot sizes.

Ms. Russell made a motion that the BZA deny application #2009-004 for a variance to permit a family division resulting in a nonconforming lot consisting of .71 acre, whereas 2 acres are required on the lot with Tax Map #20-A-53.  The following reasons are given for the denial:
1)     The hardship cited by the applicant is self-created;
2)    There is no finding that the property should receive a privilege or convenience based on any exceptional land conditions;
3)    Approval of this request could serve as a precedent in the area and ultimately could nullify the zoning restriction of 2 acres.
Ms. Cash provided the second.  Results of vote:  Ms. Mr. Childs – no, Ms. Russell – yes, Mr. Moyer – no, Ms. Cash – yes, Mr. Bradshaw – no.  Motion failed by 3-2 vote.

A second motion was then required for approval of the variance.

Mr. Childs made a motion to approve the request for Variance #2009-004 to allow a lot size of .71 acre and 1 acre for 2 individual lots.  Hardship was created before the current Zoning Ordinance was amended.  Reasons for recommending approval:
1)     The variance would not allow another house to be built; density will not increase; and
2)    This variance will fix what is there now.
Mr. Moyer provided the second.

Ms. Russell asked that the motion designate which lot will be the family division.  Mr. Childs amended the motion to add this information, resulting in the following motion:
Mr. Childs made a motion to approve the request for Variance #2009-004 to allow a lot size of .71 acre for the residue and 1 acre for the family division.  (Remainder of the motion was unchanged.)

Ms. Russell asked if it was necessary to state the hardship(s) the decision was based on.  Mr. Boger said it as necessary.

Mr. Childs further amended the motion which resulted in this final motion:
Mr. Childs made a motion to approve the request for Variance #2009-004 to allow a lot size of .71 acre for the residue and 1 acre for the family division.  Hardship was created before the current Zoning Ordinance was amended.  Reasons for recommending approval:
1)     The variance would not allow another house to be built; will not increase density;
2)    This variance will fix what is there now.
Decision is based on demonstration of the following hardships:
(a)    Strict application of the ordinance would produce undue hardship;
(b)    Such hardship is not shared generally by other properties in the same zoning district and the same vicinity;
(c)    Authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not be changed by the granting of the variance.

Mr. Bradshaw commented that the structures are already there and the restrictions of the zoning ordinance should be considered in this case.  Ms. Cash said she didn’t find the ordinance hindering in any way, but actually very lenient for family division requirements.

The motion was repeated by the Secretary, and Mr. Moyer provided the second.  Results of the vote:  Mr. Childs – yes, Ms. Russell – no, Ms. Cash – no, Mr. Moyer – yes, Mr. Bradshaw – yes.  Motion passed 3-2.

Mr. Boger reminded the applicant that a covenant must be placed on the family division deed stating that the subdivided property is prohibited from transferring the property to a nonmember of the immediate family for a period of five (5) years. (Section 3-2 A. (4) of Subdivision Ordinance)

Special Use Permit #2009-006 – Limestone Forge Land Trust
Mr. Boger reported that the Limestone Forge Land Trust (Gerald P. & Beryl Wilkes,
Christopher E. & Paige L. Wilkes, Thomas & Derrell Wilkes, and Paul Wilkes) is requesting a SUP to construct an open air pavilion for family use on property located on the north side of River Birch Road in the Howardsville area.  Approximately half of the property’s 4.50 acres is located within the 100 year floodplain of the Rockfish River.  Mr. Boger added that the structure will have to be constructed 1 foot above the Base Flood Elevation, or it can be constructed without the picket guardrails which will allow water to flow freely between the columns.

Mr. Gerald Wilkes was sworn in  and represented the Wilkes family.  He said they purchased the property for recreational purposes and would like to have the pavilion for family gatherings.  They would prefer to have the pickets for safety of the grandchildren from snakes, etc., but is not opposed to lowering the structure if necessary and/or removing the pickets.  He had prepared a drawing of the estimated Base Flood Elevation on the property; however, Mr. Boger said that an Elevation Certificate from a certified engineer would be required if the pickets were constructed on the pavilion, and this would be costly to the applicant.

The public hearing was opened, there were no comments, and public hearing was closed.

Board members gave several suggestions for location of the pavilion, which resulted in the following motion:
Ms. Russell made a motion to approve Special Use Permit #2009-006 for an open-air pavilion on property owned by Limestone Forge Land Trust, Tax Map #72-1-1, as designed, with the following changes:
a)     No pickets on structure or structure must be sited above the Base Flood Elevation; and
b)    Design to be resubmitted to the Planning Director for approval
Mr. Childs provided the second, and motion passed 5-0.

Variance #2009-004 – James E. Herring
Mr. Boger reported that Mr. Herring is requesting a variance to reduce the required 75’ front yard setback to 58’ to permit a 2-story addition to an existing dwelling located near the intersection of Irish Road and Thomas Nelson Highway, Faber, Tax Map #35-A-34C.  The existing house is 37’ x 16’ with 2 bedrooms, ½ bath and laundry room.  The new addition will be 28’ x 24’ with a kitchen and living room on the first floor and a bedroom and bath on the second.  The property is part of a family division which was approved in 2008.  Mr. Herring stated on the application that a hardship is demonstrated because the present location of the existing house and septic system prevent an addition to be placed on the right side of the house, and on the left, the slope of the land is not conducive to placing any structure.  There is an existing porch on the back of the house.

Mr. Bradshaw commented that an adjoining property owner was not notified of this request, and Mr. Boger explained that the tax map is used to determine adjoining property owners.  If the map is incorrect, it should be brought to the attention of the Commissioner of Revenue’s office.

Ms. Russell stated that the road dead-ends at this property.  The center of the road is the property line, and it was unclear why a 75’ setback is needed.  Mr. Boger explained that this is an approved subdivision and that ordinance setback requirements must be met.

Ms. Cash pointed out that the plat shows what appears to be a slab.  Mr. Herring said it was shown as a potential house site, but nothing is actually there.  Ms. Cash advised him it was too close to property lines to be used as a house site.

Mr. Herring was sworn in .  He said that the property was divided by his father to give lots to him and his sister.  He wasn’t aware of the front setback requirement until he applied for a building permit.  He has plans to renovate the existing house and add on to make it large enough for his family.

The public hearing was opened, there were no comments, and public hearing was closed.

Mr. Childs made a motion to approve Variance #2009-005 to reduce the front yard setback for James E. Herring from 75’ to 58’ to permit a 2-story addition to the existing dwelling.  Mr. Moyer provided the second, and motion passed 5-0.

Variance #2009-006 – Laurence D. Hare
Mr. Boger reported that Mr. Hare is requesting a variance to permit construction of a garage within the required front yard setback.  Property is located at 384 Stagecoach Road, Afton, Tax Map A#3-A-2I.  The hardship cited by Mr. Hare on the application is that the parcel is steeply sloped with almost no suitable level area on which to construct a garage, with the exception of the location shown on the plot plan, which is approximately 25 feet from the center of the road.  Mr. Boger has noted, however, that the proposed garage would be about 15’ from the edge of the right-of-way, and the required setback for this property is 50’ from the road right-of-way.  A redesign of the garage may be possible which would locate it behind the paved area.  It was noted that the house was constructed with a garage underneath it, and this appears to be a “self-imposed hardship.”

Mr. Hare was sworn in .  He said that Stagecoach Road dates back to 1741.  The lot is cut into the slope of Afton Mountain and the only level spot is between the house and the road.  There is space at the rear of the house which would be a suitable site; however, there are several large trees on that spot that he prefers not to remove.  The septic tank is located in the front of the house.  He bought the house about 15 months ago which has an existing garage in the basement; however, he collects antique cars and needs a garage in which to store them.  By placing the 2-story garage at the location shown on the plat, he would be able to access it from the driveway on both levels.  He stated that he could probably meet a 25’ setback, but not 75’.  There is very little traffic on this road, so the proposed location should not be a hazard to travelers.

The public hearing was opened, there were no comments, and public hearing was closed.

Ms. Cash confirmed that Mr. Hare is requesting a 45’ variance.  Ms. Russell pointed out that the owner knew the lay of the land when the property was purchased; therefore, this is a self-imposed hardship.  Mr. Childs said that just because the site doesn’t have any other buildable space doesn’t mean that the Board has to grant a variance.

Ms. Russell made a motion to deny the variance request by Laurence Hare for the property located at 384 Stagecoach Road in Afton [Tax Map #3-A-2I] for the following reasons:
a)     The hardship is self-imposed; and
b)    Such hardship is shared generally by other properties in the same zoning district and same vicinity and therefore is not unique to this property.
Mr. Childs provided the second, and motion passed 5-0.

Other Business:
Mr. Bradshaw related a personal case where he was the applicant and was uninformed of processes and procedures involved in the granting of a variance.  He suggested that the Board Staff could find ways to help applicants in the preparation of applications, etc.  Mr. Boger stated that Staff provides whatever help the applicant needs, but it is up to them to let Staff know what is needed.

Ms. Cash said she felt the Board made the wrong decision regarding Mr. Fitzgerald’s variance and that it could have long term implications for future similar requests.  Mr. Boger said that the County may want to appeal the Board’s decision in this case.  Mr. Childs said that he felt special considerations came into play in this case and that the right decision was made.  Ms. Russell said that people who have lived in the County for a long time expect special treatment and that is contrary to the intent of the ordinances.

Adjournment
At 9:45 P. M. Mr. Bradshaw declared the meeting adjourned.

Respectfully submitted,

Betty M. Fortune, Secretary