AT A MEETING OF THE MONTGOMERY COUNTY BOARD OF ZONING APPEALS HELD
ON JANUARY 8, 2002 IN COURTROOM B, THIRD FLOOR, COUNTY COURTHOUSE, CHRISTIANSBURG,
VIRGINIA:
Mr. Heavener introduced the request and confirmed it had been
properly advertised.
Mr. Sandy presented photos of the property and stated the variance
was requested to allow a manufactured home with a twenty-two (22) foot front setback
and an eighteen (18) foot rear setback. The lot was 1.84 acres without any road
frontage; however, that is a pre-existing condition that does not require a variance.
Mr. Heavener opened the public hearing.
Mr. Berrell Shrader, agent stated the request should have been
for a fifteen (15) foot front setback, ten (10) foot east side yard setback and
a ten (10) foot rear setback.
Mr. Sandy stated the request would have to be readvertised, unless
the applicant would like to go forward with the current request.
Mr. Shrader stated they would go forward with the advertised request
and if an additional variance was needed they would file another application.
There being no further comments the public hearing was closed.
Mr. DiSalvo confirmed with the Ms. Taylor the barn would remain
on the property.
On motion by Doug Eckel, seconded by Richard Barnett and carried
by a vote of 3-2 (Reilly, DiSalvo opposed), the Montgomery County Board of Zoning
Appeals approved the request, by Thomas A. & Penny S. Taylor (Agent: Berrell
Shrader) to allow a dwelling with a front setback of 22 feet and a rear setback
of 18 feet rather than the required front and rear setback of 40 feet due to the
small lot size. The property is identified as Tax Parcel No. 64-A-138C (Account
ID # 123347), Peppers Ferry Road in the Riner Magisterial District.
Mr. Heavener introduced the request and confirmed it had been
properly advertised.
Mr. Sandy stated the request was to allow placement of a detached
garage with a front setback of twenty (20) feet. The land was topographically
challenging, due to the large drop off and stream running through the property.
The proposed location of the garage was as far back as possible without backfill.
Mr. Heavener opened the public hearing.
Mr. Steven Nichols, owner stated the garage was needed to store
his vehicles during restoration. They were currently parked along the right of
way. He stated that due to the lay of the land and location of well and septic,
this was the only location to place the garage.
There being no further comments the public hearing was closed.
Mr. DiSalvo confirmed the vehicles were inoperable and would be
placed in the garage.
Mr. Nichols stated the garage would definitely house two of the
inoperable vehicles, but could possibly house three (3) cars.
Mr. Sandy stated one inoperable vehicle could remain outside;
however could not be parked in the right-of-way.
On motion by Doug Eckel, seconded by Michael Reilly and carried
by a vote of 5-0, the Montgomery County Board of Zoning Appeals, due to the size
and topographical conditions of the lot, approved the request by Steven Nichols
to allow a private garage with a front setback of twenty (20) feet rather than
the required front setback of 40 feet with the following condition.
1. All inoperable vehicles shall be stored within the garage. This shall
be completed within thirty (30) days of final inspection of the structure by
the Building Official.
The property is identified as Tax Parcel No. 44-2-2A (Account
ID No. 025104), 2472 Reesedale Road, in the Shawsville Magisterial District.
Mr. DiSalvo noted that he would be abstaining from the discussion
and the vote on this request.
Mr. Heavener recommended the Mark Oliver Appeal and the Orchards
Homeowners Association Appeals be heard concurrently. There being no objections,
Mr. Heavener opened the public hearing on the Mark Oliver (Agent: Victor Bongard
III) and the Orchards Homeowners Association Appeal of the Zoning Administrator's
Decision.
Mr. Sandy stated Mark Oliver (Agent: Victor Bongard III) and the
Orchards Homeowners Association filed separate appeals to the Zoning Administrator's
decision regarding the Special Use Permit (SUP) for the Orchards development that
was granted in 1986. The decision being appealed was made after inquiry from Mr.
Ed Natt, legal counsel for SAS Construction, requested a determination on the
abandonment of the SUP. After consulting with Marty McMahon, Montgomery County
Attorney, the Zoning Administrators decision was that the SUP could be abandoned
at any time.
Mr. McMahon addressed the Board by stating that the SUP was simply
an additional permissive use in addition to any uses listed by-right within the
zoning classification. In December 2000, the Board of Supervisors amended the
County Zoning Ordinance to no longer require a SUP for Townhouse development in
the RM1 Multifamily Residential Zoning District. The current SUP does not prohibit
the permit holder from developing under one of the by right uses in the RM1 district.
The SUP holder may decide to not proceed under the SUP and instead develop the
property under a by right use. In >response to the arguments of the appellants
Mr. McMahon advised the Board as follows:
1. THE ZONING ADMINISTRATOR'S DECISION EXCEEDS HIS AUTHORITY. It is the statutory
duty of the Zoning Administrator to interpret the zoning ordinance. In interpreting
the zoning ordinance, the Zoning Administrator has the authority to make a determination
as to whether the property owner has the right to abandon their SUP and develop
under one of the by right uses. It is true that the Zoning Administrator can not
revoke a SUP for that would be a legislative action only the governing body can
do. The issue before the Board is not whether the Zoning Administrator may revoke
the SUP in question but whether the property owner may abandon the SUP.
2. THE CURRENT OWNERS IN THE ORCHARDS SUBDIVISION HAVE VESTED
RIGHTS IN THE PROPERTY. The Supreme Court of Virginia has stated that property
owners do not have vested rights in the zoning of adjacent property. If property
owners did have vested rights in the zoning of adjacent property, property owners
would never be able to request the Board of Supervisors to rezone their property
with out first obtaining approval of all the adjacent property owners.
3. THE ABANDONMENT OF THE SUP WOULD BE AT ODDS WITH THE PRELIMINARY
MASTER PLAN. Since the Board of Supervisors amended the County Zoning Ordinance
to no longer require a SUP for Townhouse development in RM1 zoning, all the requirements
under the SUP would not have to be followed if the SUP holder developed the remaining
property under one of the by right uses in RM1 as oppose to the SUP."
Mr. Heavener asked if any speakers were present to speak in favor of the request.
Mr. Eric Oliver, 1540 Clay Street stated the SUP was approved
by the Board of Supervisors with conditions. The public and community rely upon
the SUP to control the development; therefore, the SUP can not be abandoned.
Mr. Kevin Pearson, Attorney for The Orchards Homeowners Association
addressed the Board, and read from a copy of his letter dated January 8, 2002.
He discussed the following:
1- Procedural issue regarding the previous decision of the Board of Zoning Appeals.
2- The lack of consideration regarding the vested interests of
the homeowners and it the validity and integrity of the zoning ordinance as amended.
3- The SUP limitations regarding the number and use of units,
the manner in which they are constructed, and the incorporation of a minimum open
space and widening of the road.
4- The developer can not choose to abandon the terms and conditions
of the SUP because of the vested rights of the property owners.
5- The Zoning Administrator does not have the authority to give
the developer the choice of abandonment.
6- The Board of Supervisors amendment to the ordinance was arbitrary
and capricious.
7- Judge Grubbs decision is not applicable in this situation.
Mr. Victor Bongard III, attorney for Mark Oliver, stated he concurred with Mr.
Pearson. He noted the homeowners relied upon the preliminary plan and SUP conditions
when purchasing their property, thus creating vested rights. The decision by Judge
Grubbs does not apply to this determination. The developer has operated under
the SUP for sixteen (16) years and can not change paths now since the homeowners
have expectations of the future development.
Mr. Tom Kaloupek, 1211 Cedar Orchard, stated he chose to purchase
his home because the area was advertised for townhouse development, not duplexes
or apartments. If the developer wants to abandon the SUP, most likely, he does
not want to build townhomes.
Ms. Karen Shlout, Cedar Orchard, stated the community was peaceful
and she was opposed to the abandonment of the SUP.
Ms. Alice Reynolds stated she has invested in her home and objects
to the abandonment of the SUP.
Dr. Artis Woodenall, homeowner in the Orchards stated he has a
vested interest in the property and was informed about the SUP and its conditions
by the previous homeowner. He conducted research and was told by Mr. Powers that
the property would have to be developed according to the SUP and Preliminary Master
Plan. The developer has been allowed to continue development without following
guidelines. He noted he was opposed to the abandonment of the SUP.
Mr. Edward Natt, Attorney for SAS Construction, presented background
information regarding the SUP leading to the current appeal. He stated if forty
(40) uses were allowed by right and a developer obtains a SUP, then forty-one
(41) uses would be allowed. He acknowledged the property owners do have vested
rights; however, those vested rights are in their property, not the adjoining
property and its development. He read an excerpt of the Virginia Supreme Court
ruling on the case of Vienna vs. Kohler. He also noted no local ordinance shall
require that the SUP be obtained as long as it meets the requirements. He stated
that the zoning ordinance adopted by the Board of Supervisors on December 13,
1999 repealed the old ordinance in its entirety He complimented Mr. McMahon and
Mr. Sandy on their interpretation of the law.
Mr. Rick Whitney, SAS Construction, stated he recently filed a
site plan to construct sixty-eight (68) townhouse units. He stated they wished
to abandon the SUP because of the conditions that only forty-five (45) could be
built at one time, and one three-unit building had to be changed to a two-unit
building because of the topography. A two-unit building is not considered a townhouse
unit, therefore would not be allowed under the SUP. The plans submitted will not
be approved until after the BZA renders a decision. Several neighbors have looked
at the plans and have not voiced any objections.
Mr. Mark Oliver, 211 Woods Edge, stated because of the decision
of Judge Grubbs, SAS should be required to operate under the plans of the SUP.
Dr. Woodenall voiced his concern regarding the increased traffic.
Mr. McMahon clarified the decision by Judge Grubbs and stated
Judge Grubbs did not decide if the SUP could be abandoned only that the SUP was
still in effect after a two year lapse in construction.
Mr. Bongard stated the Board of Supervisors did not void the SUP
when the ordinance was changed and the Zoning Administrator did not have the authority
to make that decision.
Ms. Jeanie Stosser, SAS, stated the SUP would still cover the
existing twenty-four (24) units. The SUP would be abandoned for the future development.
She noted that she was not required to notify the county or the zoning administrator
of the abandonment and she could have proceeded with any by right use .
There being no further speakers, Mr. Heavener closed the public
hearing on the Mark Oliver Appeal and the Orchards Homeowners Association Appeal
of the Zoning Administrator's decision.
Mr. Heavener opened a discussion session for the Board.
Mr. Eckel stated that the staff had accurately interpreted the
ordinance. The Board of Supervisors made the changes to the ordinance. He sympathized
with the homeowners, but the ordinance change was a legislative act. The Homeowners
Association should have addressed their concerns with the ordinance changes to
the Board of Supervisors.
Mr. Barnett stated a public hearing would have been held before
the Board of Supervisors during the amendment process; however, he was unsure
how many citizens attended. The change was legal and staff was correct in their
interpretation. He noted his sympathy with the homeowners of the Orchards.
Mr. Reilly stated he believed staff had followed the law; however,
the Board could grant variances and he believed the community relied on the SUP
to control development.
Mr. Heavener stated Mr. Sandy had the authority and was correct
in making his decision. He sympathized with the community but this Board is guided
by the zoning ordinance.
On motion by Doug Eckel, seconded by Richard Barnett and carried
by a vote of 3-1 (Michael Reilly opposed, Rick DiSalvo abstaining), the Montgomery
County Board of Zoning Appeals denied the appeal by Mark Oliver (Agent: Victor
Bongard III, Attorney-At-Law) to reverse the November 16, 2001 decision
of the Zoning Administrator and reaffirmed the Zoning Administrators decision
that the SUP could be abandoned.
On motion by Doug Eckel, seconded by Richard Barnett and carried by a vote
of 3-1 (Michael Reilly opposed, Rick DiSalvo abstaining), the Montgomery County
Board of Zoning Appeals denied the appeal of The Orchard Homeowners Association,
Inc. (Agent: Kevin Pearson) to reverse the November 16, 2001 decision of the
Zoning Administrator and reaffirmed the Zoning Administrators decision that
the SUP could be abandoned.
Mr. Heavener stated that either of these decisions may be appealed
to the Montgomery County Circuit Court within thirty (30) days of the Board of
Zoning Appeals decision pursuant to Section 10-51(10) of the Montgomery County
Zoning Ordinance and Section 15.2-2314 of the Code of Virginia.
There being no further business, the meeting was adjourned at 8:50
p.m.
This is to certify that the foregoing is a true and exact copy of
the minutes of the meeting of January 8, 2002.
