Current Staff Analysis
Thomas A. & Penny S. Taylor (Agent:Berrell Shrader) Variance
Request
Allan Ronald Jarrells (Agent: Allen Randall Jarrells) Variance
Request
Steven L. Nichols Variance Request
Mark Oliver (Agent: Victor Bongard III) Appeal
Orchards Homeowners Association Inc. (Agent: Kevin Pearson) Appeal
Thomas A. & Penny S. Taylor (Agent:Berrell Shrader)
Variance Request
Thomas A. & Penny S. Taylor (Agent: Berrell Shrader) requests
a variance to Section 10-21, Minimum yards in Agriculture (A-1), of the Montgomery
County Zoning Ordinance, with possible conditions, 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. The property is identified as Tax Parcel No. 64-A-138C
(Account ID # 123347), Peppers Ferry Road in the Riner Magisterial District.
Staff Comments
The 0.184 acre parcel in question is an existing parcel that was
created in 1991. This parcel is a non-conforming lot based on the current zoning
ordinance. The applicant has also requested variances to the side yard setback,
lot width, and lot access requirements of the zoning ordinance but they are not
necessary because the lot is pre-existing. Due to the small lot size and existing
setback requirements, the lot contains only approximately 1200 square feet (40 x
30 feet) of "buildable area". A typical singlewide manufactured home could not be
placed on the property in any configuration and meet the setbacks. However, a small
frame dwelling or a 28' x 40' doublewide manufactured home could be carefully placed
on the site and meet all setbacks.
I have enclosed copies of the application materials of this site
and the applicants justification statements for your information. Photos of the
site are also provided. I have received no comments regarding this request as of
the date of this report, however adjacent property owners may be present at the
public hearing to comment on this request. The Board of Zoning
Appeals may impose such conditions and restrictions upon the location, character
and other features of the proposed structure or use as it may deem necessary in
the public interest.
Allan Ronald Jarrells (Agent: Allen Randall Jarrells) Variance
Request
Mr. Allan Jarrells is requesting a variance to Section 10-47(4)(a),
Expansion of a nonconforming use, of the zoning ordinance to allow for the replacement
of a singlewide mobile home (Class B) with a doublewide mobile home (Class A). Currently,
the 1.80-acre site contains two homes (one single-wide manufactured home and one
two-story frame dwelling). The current zoning ordinance states that a lot in Agriculture
(A-1) must be a minimum of 5 acres to contain two dwelling units. These units were
on the site before this change in the zoning ordinance in 1999, however it is now
considered a nonconforming use. This parcel does not meet the minimum requirements
to be subdivided based on the current zoning designation.
Staff Comments
The zoning administrator's determination was that the existing
singlewide could be replaced with another singlewide of same dimensions, however
the replacement of a singlewide with a doublewide would constitute an enlargement
of a nonconforming use and thus a violation of the zoning ordinance. See attached
copy of zoning ordinance regulation concerning the expansion of a nonconforming
use. The applicant is proposing to remove the 1994 single-wide and replace it with
a new 2001 double-wide manufactured home. This request appears to represent no substantial
detriment to the character of the surrounding neighborhood. The home will meet all
required setbacks from all property lines.
This office has received no
comments from adjoining property owners as of the date of this report.
Adjacent property owners may be present at the public hearing to express
their concerns regarding this request.
Steven L. Nichols Variance Request
Steven L. Nichols requests a variance to Section 10-21, Minimum Yards in Agriculture
(A-1), of the Montgomery County Zoning Ordinance, to permit the construction of
a 616 square foot private garage with a front setback of twenty (20) feet rather
than the required front yard setback of forty (40) feet. The property is identified
as Tax Parcel No. 44-2-2A (Account ID No. 025104), 2472 Reesedale Road in the Shawsville
Magisterial District.
Staff Comments
Accessory buildings are required to meet the same front yard setback
of forty feet as principal dwellings however, the side and rear yard setbacks are
reduced to ten (10) feet. This request is to reduce the front yard setback by approximately
one-half. The site becomes steep as you move away from the road and approach the
natural drainage area and stream near the rear of the property. There is currently
one storage building on the property. Typically, the Board should evaluate the need
for additional right-of-way for road improvements when considering variances to
front yard setbacks. However, Reesedale Road currently is a fifty-(50) foot right
of way and therefore, the acquisition of additional right of way should not be necessary
if the road is ever improved. It appears that this request does meet the criteria
necessary for the issuance of a variance due to the topography of the site.
I have enclosed copies of the application materials of this site
for your information. Photos of the site are also provided. I have received no comments
regarding this request as of the date of this report, however adjacent property
owners may be present at the public hearing to comment on this request.
The Board of Zoning Appeals may impose such conditions and restrictions upon
the location, character and other features of the proposed structure or use as it
may deem necessary in the public interest. Staff recommends
that the following condition be considered if the Board approves this request:
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.
Appeal to Zoning Administrator's Decision Regarding The
Orchards
Mr. Mark Oliver (Agent: Victor
Bongard) and The Orchards Homeowners Association, Inc. have 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 that is being appealed
was made on November 16, 2001 in response to a letter from Mr. Ed Natt, legal counsel
for SAS Construction, dated October 23, 2001 (see attached). Mr. Natt's letter specifically
requested the zoning administrator's determination on whether the owner could abandon
the Special Use Permit previously issued for the property. The zoning administrator
made a determination that the special use permit could be abandoned by the property
owner at any time. As you may recall, this Board reversed a previous decision of
the zoning administrator that said the developer could develop the property under
the current SUP or the by-right zoning requirements. The Board's ruling was that
the property owner must develop the property according to the SUP and the conditions
that were made part of that approval.
Mr. Oliver's agent, Victor
Bongard, has offered the following grounds for his appeal: (a) the decision exceeds
the scope of the Zoning Administrator's authority because the SUP and the conditions
attached thereto may only be amended or repealed by the Board of Supervisors, (b)
the decision exceeds the scope of the Zoning Administrator's authority because it
would allow the impairment of vested property rights of existing homeowners within
the Orchards development and (c) the decision exceeds the scope of the Zoning Administrator's
authority because the abandonment of the SUP would be at odds with the Preliminary
Master Plan (see attached letter dated December 14, 2001).
The Orchard's Homeowners' Association Inc. has offered that the
SUP and the conditions attached thereto are a legislative act and can only be removed
by the Board of Supervisors and that the Zoning Administrator has exceeded his authority
by arbitrarily and capriciously offering the developer the option of abandoning
the SUP.
As the zoning administrator for the county, I consulted with
the county attorney prior to making this determination and we both agreed that the
SUP could be abandoned by the property owner at any time. The following items should
be considered when deliberating over this determination:
1. It is the zoning administrator's determination that
a SUP can be abandoned at any time and does not require legislative action
(Board of Supervisors) to do so. This determination is based on the fact that
a SUP merely grants authority or permission to do a use above and beyond the
uses that are permitted by-right in the zoning ordinance. In other words,
granting a special use permit does not take away the property owners right
to develop a use that is permitted by-right and therefore the owner can relinquish
that permission to do that "special use" at any time.
2. It is the opinion of the zoning administrator that
the Board of Supervisors performed a legislative act that removed the need
for the SUP on this property when they amended the zoning ordinance in 1999
to allow townhouse development to occur by-right in the RM-1 zoning district.
3. Section 15.2-2288.1 of the Code of Virginia states
that no special use permit can be required for residential development at
the use, height and density permitted by-right under the local zoning ordinance
(see attached). This amendment to the code became effective January 1, 2000.
4. The previous decision of the Circuit Court has been
referenced in the past as documentation that the SUP for this property must
continue. Judge Grubbs' November 19,1998 decision stated the following, "The
24 completed units are occupied as townhouse units in compliance with the
original use permit and the use continues with the occupation of these units.
The construction of these 24 units represents 'substantial construction' as
determined by BZA." See attached copy of his ruling.
In my opinion, his decision made no inference that the
developer must follow only the SUP and could not develop any of the by-right
uses. His decision merely stated that since substantial construction had begun
within two years and the use continues, the developer could continue to develop
under the SUP.
As many of you are aware, the development of this property
has been an issue with neighboring property owners in the past. I have enclosed
copies of some of the past correspondence for your reference. The property owner,
SAS Construction, adjacent property owners and legal counsel may be present
at the public hearing to express their concerns regarding this request.
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