Planning

BOARD OF ZONING APPEALS
NOVEMBER 2, 2009
MEETING MINUTES

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

Staff:    Fred Boger, Planning Director

Call to Order:  Mr. Bradshaw called the meeting to order at 7:35 P. M.  He stated that minutes for September 14, 2009 meeting would be discussed after the public hearing for the Hatters.

Variance #2009-007 – Wilbert D. & Linda J. Hatter

Mr. Boger reported that Mr. and Mrs. Hatter of 5425 Cub Creek Road, Roseland, Tax Map #31-2-1B, are requesting a variance to Sections 4-3-1a and 4-3-4 of the Zoning Ordinance, Front Yard Setback Regulations and Accessory Structure, to allow placement of a 20’ x 26’ equipment shed on a concrete slab which is approximately 20’ from the center of the road.  Mr. Hatter plans to use the shed to store feeding supplies for his cattle and to park his tractor.  The slab has already been placed parallel to the road.

Mr. Boger added that there is a disparity in property lines as shown on the original survey of 1967 and a more recent survey for adjoining property owner Donna L. Smith/Mike Fitzgerald.  Consequently, the side yard setback may also be a factor.    The lot is hilly terrain and the slab has been placed on the only flat place on the property.  Mr. Hatter has stated on the application that his physical condition makes it difficult to walk and work on unlevel ground; therefore, his health could be considered a hardship.

Ms. Cash asked Mr. Boger if there had been any opposition to the variance.  Mr. Boger said he was not aware of any. [Note:  There was a petition signed by 13 neighbors who did not object.)

Mr. Hatter was sworn in by Mr. Bradshaw .  Mr. Hatter stated that he was not aware of the 75’ front setback requirement at the time he had the slab poured, or that a building permit was needed.  He had consulted two neighbors who advised that no permit was needed.  He talked with someone from VDOT who told him the building was outside the VDOT right-of-way and that the location was acceptable since the right-of-way is 15’ on each side of the road.  Mr. Hatter said that his health situation prevents him from doing a lot of walking, especially on uneven ground, which was the primary reason for placing the slab at the current location.  In addition, the company supplying the building required that the slab be placed on level ground.

Mr. Childs said he had visited the property and saw five other sheds and asked whether one of them could be used for the same purpose.  Mr. Hatter said the other sheds were used for wood, etc., and there would have to be roads built to access them.  He has a horse and will have beef cattle this winter.   Cattle now come to the horse trailer to eat.

The public hearing was opened.

Mr. Tom Connor, neighbor, said that all of Mr. Hatter’s property is unlevel, and the proposed location is the only decent place to put the shed.  There is minimal traffic on that road.

The public hearing was closed.

Mr. Boger said the original interpretation of 10’ setback from property lines for an accessory building was changed by the County Attorney disallowing any structure within the front yard setback.

Ms. Cash said there was consideration given at one time to closing Cub Creek Road to trucks because of the narrowness of the road, but no action was taken by VDOT.  Ms. Russell said she was concerned with the closeness to the road because the slab would be only 5’ from the VDOT right-of-way.  She also felt the side yard setback was an issue.  Mr. Hatter said the slab was actually 23’ from the center of the road and that Mr. Brechlin (Building Inspector) said the side yard setback was acceptable, but that the Fire Department.

Mr. Hatter said the side yard setback was measured from the creek bank because the property line is on the other side of the creek.  The measurement was 75’, and he has given his neighbor a verbal easement on that side to allow him to build his house.

Mr. Bradshaw suggested to Mr. Hatter that he find out if there is a deeded right-of-way with VDOT.  Legal advice differs on whether the VDOT right-of-way is automatically 30’ or if it is “ditch-to-ditch.”  Mr. Hatter said the VDOT official said if the structure was out of the path of the snow blade, there would be no problem.

Ms. Cash suggested to Mr. Hatter that it would be in his best interest, now and in the future, to have a survey done to clarify his property lines.

Mr. Childs said that with five outbuildings already on the property, he couldn’t see justification for putting another.  Mr. Miles said that others in the area have built close to the road in the past with no apparent difficulty.

Ms. Russell clarified that Mr. Hatter was asking to build a structure 5’ from the VDOT right-of-way.  The application quotes the Virginia Code, stating:  The fact that the Board feels it is doing “justice,” the request is considered necessary and essential by the applicant for personal, health, or other reasons, or the request is not opposed by nearby property owners does not, when standing along, constitute valid reasons for the granting of a variance.  She felt the hardships stated by the applicant were self-inflicted and should not be considered.

Ms. Cash said that she is confident Mr. Hatter didn’t violate the ordinance intentionally; however, the road is already difficult to travel and this structure would be extremely close to the road.  The existing structure beside the proposed shed may also be nonconforming and this would be a second nonconforming structure, setting a precedent for other property owners who want to build outside the required setbacks.

Ms. Russell made a motion that Variance #2009-007 be denied for Wilbert D. and Linda J. Hatter for property located at 5425 Cub Creek Road, Roseland, Tax Map #31-A-1B, for which they request permission to construct an equipment shed approximately 20’ from the center of the road.  Reason for the denial is that there does not appear to be undue hardship, and the hardships cited by the applicant appear to be self-inflicted.

Ms. Cash provided the second, and motion passed 5-0.  (Variance denied.)

Mr. Hatter asked that the Board look at other variances that have been granted near his property for front yard setback (Donna Smith/Mike Fitzgerald).  Staff was not aware of a variance in this area but will investigate.  Mr. Hatter asked if there was any other use he could make of the slab and Mr. Childs suggested he could park cars on it.  Mr. Hatter said he was very disappointed with the Board’s decision and would consider appealing.  Mr. Boger advised he could appeal through Circuit Court and recommended that he obtain the services of a lawyer.  His office will provide assistance, if needed.

Minutes of meeting of September 14, 2009:    Correction of Mr. Childs’ name on page 3 was made.  Mr. Bradshaw said that his statement on page 6 was recorded incorrectly; therefore, the sentence was changed to:  He suggested that the Board Staff could find ways to help applicants in the preparation of applications, etc. Mr. Childs made a motion to approve the minutes as corrected, Ms. Russell provided the second, and motion passed 5-0.

Adjournment:  Meeting was adjourned at 8:40 P. M.

Next Meeting:  December 7, 2009

Respectfully submitted,

Betty Fortune
Planning Secretary