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03-01-2004 Joint Meeting~. ~,; ,. . JOINT MEETING OF THE ~ ISLE -:.OF `WIGHT . COUNTY BOARD OF ZONING APPEALS-~ AND s BOARD t7F`~SLIPERVISORS 'HEED ON THE FIRST DAY OF MARCH IN THE YEAR TWO THOUSAND FOUR j,he joint meeting was held in the Board of Supervisors Room at 7:00 P.M. on March 1, 2004 at Isle of Wight Courthouse, Isle of Wight, Virginia. Board of Zoning Appeals: Alvin Wilson, Chairman Gayle Brown, Vice-Chairmap_ Rudolph Boone Nancy Guill . Verna Jones Board of Supervisors: Stan D. Clark, Chairman Phillip A. Bradshaw, Vice-Chairman Henry H. Bradby Richard K. MacManus Absent: Thomas J. Wright, .III Also attending: Sandy W. Robinson, Secretary/Planner, Acting Recording Secretary to the Board of Supervisors Jacob. P. Stroman, IV, County Attorney Jonathan W. Hartley, Director of Planning/Zoning W. Douglas Caskey, County Administrator Chairman Wilson determined a quorum was present and called the Board of Zoning Appeals meeting to order. Chairman Clark determined a quorum was present and called the Board of Supervisors meeting to order. Supervisor Bradshaw moved to appoint Mrs. Robinson as the Board's acting recording secretary. The motion was adopted with Supervisors MacManus, Bradby, Bradshaw, and Clark voting in favor of the motion, and no Supervisors voting against the motion. (4-0) The Secretary administered the oath and uerified that the public hearings had been properly advertised. Chairman Wilson called for consideration of the following public hearing: The application of Elizabeth Joe Newby for a variance to Section 3900 "schedule of zone regulations" of the Isle of Wight County Zoning Ordinance. This section requires minimum setbacks of 25 feet from the side property lines in the RAC zone. The variance will .allow the C. 1 ,, 90QN 22 ~r:f~..~.7i1 replacement of a single family residence to be no closer than 9 feet from the north side property line and no closer than 13 feet from the south side property line at 9333 Orchard Garden :Lane, Smithfield, in the Hardy Election District. Jonathan Hartley referred the members to the staff report in the agenda package. He reviewed the report stating that the property in question contains 12,375 square feet and measures 75 feet of lot frontage and 165 feet of lot depth. He explained that the applicant is requesting variances to allow ,side yard setbacks of 9 feet and 13 feet, where 25 feet is required, to locate a modular home to replace a house damaged by the hurricane. Mr. Hartley stated that the proposed location of the home is immediately in front of the existing septic tank and drainfield, so an alternative configuration is not an option. He stated that the house that was on the property was extensively damage by Hurricane .Isabel, greater than 50% of the value of the. structure, so redevelopment of the property is not allowed without the setbacks being met. Mr. Hartley, in summarizing, referred to Section 12003 of the Zoning Ordinance. He stated the Board of Zoning Appeals shall not authorize avariance unless it finds the following: 1) That the strict application of the Zoning Ordinance would produce undue hardship, and in this case it would unreasonably restrict development of the property if the variance was not approved. 2) That such hardship is not shared generally by other properties in - the same zoning district and same vicinity, and other properties in the vicinity and in the same zoning district are larger in size that this lot and do not share the same hardship as presented here. 3) That the authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will not change. by the granting of the variance, and the proposed home is in the same place as the previous house and. it will not have any detrimental effect on the adjoining residences or the. character of the .district, and 4) That the condition or situation of the property is not of so general or recurring a nature as to make reasonably practical the formulation of a general regulation to be adopted as an amendment to the ordinance,. and it is the opinion of staff that this situation is not so general or recurring in nature as to warrant an amendment to the zoning regulations. In closing, Mr. Hartley stated that the staff recommends approval of the variance requested. llenise Newby Tynes appeared representing her mother stating that due to the reasons already stated by staff, the variances are necessary to be able to allow her displaced elderly mother back in a home on the property. She added that she would appreciate approval of the request. She stated that the modular proposed is a little smaller than the house that was destroyed. No one spoke in opposition to the application. There being no further public comment, Chairman. Wilson closed the public hearing. 2 eaoK 22 ~h~240 Chairman Wilson stated that he is very familiar with the property as it is in the Hardy District. He added that he agrees with the staff recommendation. Ms. Guill stated that she went by the property and the lot is narrow but deep. She added that she also agrees that this. is a hardship. Ms. Guill moved to adopt the staff findings and grant the variances. Mr. Boone seconded the motion, which was adopted with Mr. Boone, Mrs. Brown, Ms. Guill and Mrs. Jones voting in favor of the motion and Chairman Wilson abstaining from voting. (4-0-1) Chairman Wilson called for consideration of the following public hearing: -The application of William J. and Kris K. Snyder for a variance to Section 3806 "accessory uses and structures..." of the Isle of Wight County Zoning Ordinance. This section requires a principal structure be located on a lot prior to an accessory structure being permitted. The variance will allow two structures on a lot wi#hout a dwelling for the owner's private storage. Said property is known as Lot 24, Section G, Rushmere Shores, and is directly across from 5320 River~Landing Trail, Smithfield, in the Hardy Election District. Jonathan Hartley referred the members to the staff report in the agenda package. He reviewed the report stating that the applicant owns four lots, three of which are on the opposite side of the street from. this lot. He stated that the purpose of this section of the Ordinance is to prohibit accessory structures on a -lot until the primary structure exists or is initiated. He stated that the lot is vacant and wooded and the main setbacks can be met, which will be required if .approved. Mr. Hartley stated that the applicant claims that there is no place on the .three. lots he owns across the street to place. the accessory structures, but it appears that despite the topography and drainage issues, there is adequate space for accessory structures. He added that an accessory use does not constitute an undue hardship in staff's opinion.. Mr. Hartley in summarizing referred to Section 12003 of the Zoning Ordinance. He stated the Board of Zoning Appeals shall not authorize a variance unless it finds the following: 1) that the strict application of the Zoning Ordinance would produce undue hardship, and it appears that the property across the street could be combined to provide space for the garage .and shed, therefore, no undue hardship exists. 2) That such hardship is not shared generally by other properties in the same zoning district and same vicinity, but this situation is not unique to .other properties in the .vicinity therefore, it has not been demonstrated that the hardship is not shared generally by other properties. 3) That the authorization of such variance will not be of substantial detriment to adjacent property and the character of the district will .not change by the granting of the variance, but accessory structures on vacant land have the potential of becoming sold and used by .non-residents for storage, which typically .becomes a nuisance, and 4) That the condition or 3 rl 8001( 2~ r;;~:~41 situation of the property is not of so general or recurring a nature as to make . reasonably practical the formulation of a general regulation to be adopted as an amendment to the ordinance, but the request is contrary to basic premise that accessory uses be located on the same lot as the residence or principal use. In closing Mr. Hartley stated that based on the findings above, staff recommends that the variance be denied. William and Kris Snyder appeared representing the applicant. Mrs. Snyder stated that the street referred to by staff is a private dirt lane that ends in front of their property. She stated that they have owned the property and lived there for ten years, and they do not intend to sell any of their land separately or otherwise. She stated that their request for the structures is to store their boat, jet ski and other personal items. She stated that the lots on the opposite side of the road are on the James River and are sloped and have drainage issues. She added that they have lost a lot of their waterfront to storms and have no space on the lots for the structures. Mrs. Snyder added that there are no homes on the lots beside their lot across the road. Mr. Snyder appeared stating that the plat he presented for the members shows the lots, the drainage area, ravines and setbacks required. He added that there is an also a buffer of 100 feet to the river. Mr. Snyder stated that their home is only 900 square feet and they may need what little space left to add on one day. Mr. Snyder stated that the lots are only 75 feet wide and the single lot beside it will not pert for a conventional septic system. Mr. Boone asked how long the Snyder's have lived in their residence and if all the lots were purchased at the same time. Mrs. Snyder responded ten years except for lot 9, which was purchased three years ago. Patricia Lee appeared stating that she is interested in purchasing lot 20, a vacant lot beside this lot, and she has questions regarding the proposal. Chairman Wilson responded that the storage building is for personal storage of the homeowner across the street. Ms. Lee stated that she would like to have time to consider the request before she can comment. There being no further public comment, Chairman Wilson closed the public hearing. Chairman Wilson stated that he is very familiar with the property as it is in the Hardy District. He stated that he can concur that the lots are very small and narrow, and it is a very private area. He added that several of the lots in that subdivision have come before the Board for variances. Also, he stated that he 4 eoaK 22 ~~~~242 respects the findings of staff and adjoining property owners': concerns. Mr. Boone moved to deny the variance based on staff s findings. Mrs. Brown seconded the motion, which was adopted with Mr. Boone, Mrs. Brown, Mrs. Guill and Mrs. Jones voting in favor of the. motion and Chairman. Wilson abstaining from voting. (4-0-1) Chairman Wilson called for the joint work session with the Board of Supervisors at this time. , Board of Supervisors Chairman Clark addressed the Board of Zoning Appeals thanking the members for meeting with them and for the work that. they do serving as members of the Board of Zoning Appeals. He stated that it is a thankless job, and the Board appreciates their time and effort. Chairman Clark stated that the County is in a transition as we are being pressed .from the development community. He stated that our schools, fire and rescue are being impacted by the. development. The. Planning Commission has been through a transition due to this growth and development, he stated. For example, the Chesapeake Bay Preservation Area Ordinance has recently been updated to more strictly adhere to the standards.. Chairman Clark stated that the Board wants all of us to pull together and .come to an awareness of what is happening in the County. He stated that Dr. Chandler's latest workshop was very informational and .educational. He stated that the Board of Supervisors also attends conferences, and they encourage education for the various Boards and :commissions. He stated that the Board of Supervisors has had some concerns, so they thought it would be productive to meet together to let the Board of Zoning Appeals know the expectations of the Board of Supervisors, and for the Board of Zoning Appeals to let the Board of Supervisors-know their expectations. He stated that 4 he would like. to open the discussion as to what the Board of Supervisors expects .regarding the enforcement of the Zoning Ordinance. Supervisor Bradshaw stated that the Zoning Ordinance is being completely overhauled, and the Board would like the Board of Zoning Appeals help with input, guidance or suggestions as to the problems. they are seeing with the present Ordinance so that those issues can be resolved in the new Ordinance. ~~ Chairman Clark stated that the Zoning'Ordinance procedure has taken a lot oftime- and effort by staff and the Planning Commission, so hopefully it will be a better document. Supervisor MacManus stated that he hopes that if the Board of Zoning Appeals see any weaknesses in the Ordinance they will address those concerns to Mr. Hartley so that the Board of Supervisors can make amendments. He stated that revising the Ordnance when it is not working is the way to handle those situations rather than granting variances. 5 eooK 22 ~;,..2,~3 Chairman Clark stated that the hardship criteria is clear and actually hard- to meet in most cases.. He stated that the Board of Supervisors did not agree with the action on the Meisell case in December, so they took action to appeal that decision in February. He stated that they are prepared to stop that action if the Board of Zoning Appeals will follow the legal standard of hardship hereafter. Board of Zoning Appeals Chairman Wilson stated that he has been on the Board since the mid 1970's and he understands the role of the Board of Zoning Appeals. He stated that the Board itself has gone through a -lot of changes since that time. He stated that the human side of us would like to grant all variances but some hardships are more clear than others are. He admitted that at first he did not like the staff recommendation in the staff report because he felt the members have a right to their own opinion.. But, he stated, he has learned that the information presented is helpful, and he appreciates the time and effort staff spends on the applications. Chairman Wilson stated that the Board of Zoning Appeals does have to be careful not to set a precedent in granting variance requests. He added that he is more sensitive to property owners that owned land prior to the ordinance or the ordinance changes affect his land more than some other situations. Mr. Boone stated that he has been on the Board for 3 years and has used his professional and private experience to help him in making his decisions. He stated that he does not feel the ordinance covers all the situations of landowners. He agreed that he appreciates the staff report and thinks adopting by-laws has been beneficial to the Board members. He added that he was not able to look at the site tonight, which is very unusual, but he received his package late and depended on the Hardy representative and staff report for guidance. Mr. Boone stated that he makes his own decision in voting and does not like the idea of the Board's direction in not wanting them to grant variances. He added that another thing he did not like was what he read in the paper about the Board of Supervisors action against them. He stated that the Board should have come to the Board of Zoning Appeals sooner, personally, and addressed their concerns. He stated that he still thinks the Board should use the information staff provides, but vote on theapplication individually as they have done in the past. Mrs. Jones stated that she is the. new member of the Board of Zoning Appeals. First of all, she stated that she would like to receive the Board agenda package sooner so she could have adequate time to review the information .and view the site. She stated that she was not able to view these sites and she also had. to depend on the Hardy District representative and staff report for guidance.. She. stated that she understands the guideline set forth in the ordinance and she was going to vote against the Meisel application at the December meeting. She stated when other Board members commented that there have been many similar variances granted in the community, she felt different about the request. She added that she has signed up for the next training session and is looking forward to attending. 6 ~eooK 22 ~~r~244 ~~.~~4 . y Chairman Wilson stated that with the growth we have at hand, he hopes we can set a side our personal feeling and uphold the Ordinance. Chairman .Clark stated the Virginia Supreme Court set guidelines of a hardship and unfortunately the Board of Zoning Appeals is the "grim reaper" of land use. Unless an applicant can prove clearly and without a doubt that there , is a hardship, there is no hardship, and that is how the BZA should work. Chairman Clark stated that if the Zoning Ordinance is undermined by bad decisions then. the decisions are arbitrary and capricious. Supervisor Bradby stated as the senior- member of the Board of Supervisors, he has no intention on telling the Hardy representative how to vote on applications. He stated that Mr. Wilson has the experience and knowledge to be able to listen to the citizens and make a decision. He stated that he thinks you have to be willing to apply some common sense. He stated that the ordinance will never to perfect and address all situations. Supervisor Bradby stated that when the Board moved to take action against the Board of Zoning Appeals he did not understand the motion and he can not go along with it. He added that he respects the Board of Zoning Appeals opiniop. Chairman Clark repeated that the variance criteria is a legal standard not a common sense standard. He added that if that standard is not used, the Zoning Ordinance will be undermined. With the case in Battery Park, he stated, the applicant did not prove hardship with an addition being proposed into the minimum setbacks and the variance should not have been granted based on the strict application of the law. Supervisor Bradshaw also thanked the Board for meeting with them. He stated that his approach is different and his philosophy is different than what Supervisor Clark expressed. He stated that he believes in the checks and balances of government. He stated that he does not think the Board of .Supervisors should be getting involved with what actions are taken by the Board of Zoning Appeals, or how they enforce the Zoning Ordinance. He stated he believes in our democratic organization, and the judge appoints the Board to uphold. the Zoning Ordinance so he should be the one to .address problems with the Board of Zoning Appeals not the Board of Supervisors. He stated that there are communities. in the County like Camptown and Walters and other community pockets- that the Zoning Ordinance setback regulations impose a hardship on landowners. He stated that he believes that we have to grant those variances regardless of what the ordinance says, or the citizens can not use their land. The Board of Zoning Appeals responsibility is to listen to our citizens that come for variances and deal with the issues. He asked that the- members get with Mr. Hartley and note other areas in the County like these two and workon the setback problems, He added than not all communities should have the same setbacks; everyone is different. He stated that the 1997 Ordinance has caused a lot of problems in exiting communities. Supervisor Bradshaw stated that the _7 eaoM 22 ~~~2~5 Board of Zoning Appeals has to do what is best for the citizens. He requested the Board of Zoning Appeals must keep communications. open with staff and the Board of Supervisors with situations that need addressing, so revisions can be made in the ordinance to help improve the quality of life of the citizens in Isle of Wight County. Ms. Guill, in addressing Supervisor Bradshaw's comments on the judge appointing the Board of Zoning Appeals, stated that they are appointed by the Circuit Court, but on a recommendation of the Board of Supervisors. She stated if the Board of Supervisors has issues with the Board of Zoning Appeals, they would be the ones to initiate action, in her opinion. She stated that she agrees as issues or problems arise with the ordinance,. the Board of Zoning Appeals should be letting staff know so that the issues can go the Board for resolution rather than undermining the ordinance by granting variances that should not be granted. Chairman Clarke concurred that as the BZA. see issues arise, it should let Mr. Hartley know so he can in turn advise the Board. The Board can then do .its job by making the necessary revisions to the Zoning Ordinance to address the issues. He further stated that when a citizen or the Board of Supervisors, in this case, is aggrieved. by a decision of the Board of Zoning Appeals, that is the only time the Court becomes aware of a problem. He stated that this is not what the Board wants to do and he thinks that what the Board wants is some assurance that the Board of Zoning Appeals will stick to the ordinance requirements, so it will not be undermined. Supervisor Bradby stated the he and Supervisor Bradshaw are not in agreement with legal action being. initiated against the Board of Zoning Appeals. County Attorney Stroman advised the Board that a change in decision would require anew motion. Supervisor Bradshaw said that he had previously stated that he wanted to change his vote on the issue because it was not clear to him what the motion was. He stated that he would like a new motion on the issue. Supervisor MacManus stated that he would prefer the whole Board be present to act on the new motion, as Supervisor Wright is.absent tonight. Supervisor Bradshaw. moved to resend the ,previous motion made in February, in reference to the BZA. Supervisor MacManus re-iterated his desire that Supervisor Wright be present to represent his District. He added that he also was a member of the Board of Zoning Appeals, and has personal knowledge of issues, so it would only be fair that he be present for discussion and action on the motion. He stated that he thinks it would be appropriate to further discuss this at the Board's z 8 b r eooK 22 ~ac:246 meeting on Thursday, Mazch 4,.2004. Supervisor's Bradshaw and Bradby voted in favor of the motion and Supervisors Clazk and MacManus voted against the motion. (2-2) Due to the tie vote, the motion failed. Supervisor Bradshaw moved the Boazd to direct the County Attorney not t to take any further action on the lawsuit until the Board meeting of Mazch 4, 2004. The motion was adopted with Supervisors MacManusy Brady, Bradshaw and Clark voting in favor of the motion, and no Supervisors voting against the motion. (4-0) On motion by Supervisor Bradby, the Board of Supervisors adjoined its. continued meeting. Ctan n. Clark, Chairman i 11 1