Planning: January 7, 2008

January 7, 2008

Board of Zoning Appeals
Meeting Minutes
January 7, 2008

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

Member Absent:     John Bradshaw

Staff Present:   Fred M. Boger, Planning Director and Betty Fortune, Secretary

Call to Order:   Mr. Childs called the meeting to order at 7:30 P.M. in the Board of Supervisors meeting room of the County Courthouse.

Approval of Minutes:   Minutes of the December 3, 2007 BZA meeting were reviewed. Mr. Moyer made a motion to approve the minutes as presented, Ms. Cash provided the second, and motion passed 5-0.

Special Use Permit #2007-010, Elizabeth Flint

Mr. Boger advised that Ms. Flint has withdrawn her request and may reapply at a later date. Her residence has moved to Arizona.

Variance #2007-013 – Rob Rutherford – Nelson Homes

Mr. Boger reported that Mr. Rutherford is appealing the Zoning Administrator’s denial of a zoning permit to place a manufactured home on lot #11 in Mountain View Subdivision which is located on Helena Lane in Shipman. Mr. Rutherford is requesting a variance to reduce the required 75’ front yard setback from the center of Helena Lane to 56’. Mr. Boger stated that in his opinion a hardship exists because the size and shape of the lot cannot accommodate a dwelling and the septic system with the required 50% reserve area and the required 75’ setback. In addition, the lot slopes downward from the road and the rear drops off to a small stream/drainage channel. This channel prevents the proposed dwelling from being moved further to the rear of the property. Mr. Boger added that the Mountain View subdivision was approved in 1971, prior to the first zoning ordinance, and is non-conforming in acreage (less than 2 acres) and in front yard setback, as required in the Agricultural District effective June 1, 2007.

Ms. Russell asked where the stream was located in relation to the property line and Mr. Rutherford said that it meandered through the parcel. There are three remaining lots to be developed in this subdivision. County water is available and individual septic systems have been approved. It is unknown at this time whether they will be nonconforming since dwelling sites have not been determined.

Mr. Boger stated that when the Board of Supervisors revised the Subdivision Ordinance it was recognized that several subdivisions would be impacted, i.e. Arrizona, Lake Nelson, Mountain View, etc.
Mr. Daniel Rutherford, Attorney at Law representing Mr. Rob Rutherford, said that Mr. Boger had stated the situation to his satisfaction and he had no additional information but would answer questions as needed.

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

Ms. Russell asked the applicant to provide justification for hardship. Mr. Daniel Rutherford supplied the following in reference to Section 14-2-4 of the Zoning Ordinance:
1)   Strict application of the ordinance in this case will produce hardship in that no house can be built on this lot without the variance.
2)   The hardship is not generally shared by other properties for which the front setback is approximately 50’.
3)   Granting of the variance will not change the character of the subdivision for the same reason as item 2 – other lots have setbacks of approximately 50’.
4)   There are no floodplain issues on this lot.

Ms. Russell said that the philosophy of the County has changed in regard to smaller lots, resulting in an increase from 1 to 2 acres in the current Agriculture District. In her opinion the owner created the hardship by not developing the property prior to the June 1, 2007 ordinance change. The owner has had possession of the property for 35 years. Mr. Daniel Rutherford said that the test of hardship must be established from the requirements of the current zoning ordinance and that he respects her interpretation, but disagrees. The hardship is determined by whether a house can be placed on a lot with septic, etc. It would have been bad business judgment to place a home on the lot without a buyer. The lot has been on the market for over 3 years and there has been due diligence in trying to sell the lot.

Mr. Carlton Ballowe, Construction Superintendent for Nelson Homes, said that Ms. Russell’s comments seem to imply that anyone who owns a nonconforming lot will be unable to apply for hardship. Increase in lot size was accomplished with the new ordinance for subdivisions after June 1, 2007, but those regulations cannot apply to this current nonconforming lot.

Mr. Daniel Rutherford said that this borders on “taking of land” and he does not think the County can afford to compensate everyone for nonconforming lots. Mr. Rob Rutherford said that the investment has been made in the water system, individual septic and electricity for this lot. There was no grandfathering of setbacks at the time the subdivision was approved.

Mr. Ballowe presented a copy of the Health Department permit showing all measurements of the septic system and drainfield from property lines, stream, road, etc.

Ms. Cash verified with Mr. Rutherford that the request is to reduce the front yard setback from 75’ to 56’. She stated that she is opposed to small lots, but realizes that this lot existed prior to the original zoning ordinance.

Ms. Cash made a motion to grant a 19’ variance to the front yard setback for Variance #2007-013 for Rob Rutherford, Mountain View Subdivision, Lot 11, due to hardship based on topography of the land and the lot’s being nonconforming prior to the adoption of the ordinance. Mr. Miles provided the second, and motion passed 4-1 with Ms. Russell voting no.

Other Business:

Election of Officers – 2008
Due to the absence of current Chair Mr. Bradshaw, Ms. Cash made a motion to table election of officers until the February 2008 meeting. Ms. Russell provided the second, and motion passed 5-0.

Gary Bryant - SUP #2007-013
Mr. Boger reported that Mr. Bryant is considering the suggestions made by Mr. David Gunn of Department of Conservation and Recreation in regard to his request to allow placement of fill dirt and a farm structure/storage shed in the floodplain. This item has been deferred until February at Mr. Bryant’s request.

Swearing-in Process
It was suggested by Ms. Russell that applicants/agents coming before the Board be sworn in before giving testimony. Consequently, Mr. Boger distributed to the Board for consideration a “swearing-in” statement that is used by courts of law in the State of Virginia: “Do you swear or affirm that the information you give before the [Nelson County Board of Appeals] shall be the truth, the whole truth, and nothing but the truth, so help you God?”

Ms. Cash said she also is concerned that applicants are asked to agree to certain conditions related to their particular case and there is nothing in writing to verify those statements. The meeting is taped; however, it is not always easy to identify by voice the person making the agreement.

Mr. Moyer suggested that each person providing statements be asked to identify themselves and then be sworn in. Ms. Russell said that possibly an affidavit could be provided for the applicant to sign. She also expressed concern over the wording “so help you God” on the grounds that it may be offensive for religious reasons.

Mr. Boger was asked to consult with County Attorney Payne regarding this matter and then discuss it further in the February meeting.

Adjournment

At 8:30 o’clock P. M., Mr. Childs declared the meeting adjourned.

Respectfully submitted,

Betty M. Fortune
Planning Secretary