Planning: April 4, 2005 Meeting Minutes

April 4, 2005 Meeting Minutes

Board of Zoning Appeals
Meeting Minutes
April 4, 2005

Members Present: John Bradshaw, Kim Cash, Gifford Childs, Goffrey Miles, Linda Russell

Staff Present: Fred Boger, Betty Fortune

Applicants Present: Mr. Harry Baum, Mr. Vance Wilkins, Jr., Ms. Sandra Shumaker

Call to Order: Mr. Bradshaw called the meeting to order at 7:30 P. M. in the Board of Supervisors Meeting Room and welcomed those in                                                   attendance.

Approval of Minutes:    Minutes from February 7 were reviewed. Mr. Childs made a motion to approve, Mr. Miles seconded the motion, and motion passed 5-0.

Minutes from March 7 were reviewed and the following corrections made: (1) Page 2 ö Full paragraph 5 ö ã·and that it a decision must be made·ä; (2) Page 3 ö Full paragraph 3 ö ã... at this time, and unless Ms. Adams agrees to wait for the survey, a decision will be made tonight·ä changed to ã·at this time. We have to base our decision on the Countyâs records. Mr. Childs made a motion to approve the minutes as amended, Mr. Miles                                                   seconded the motion, and motion passed 5-0.

Mr. Bradshaw reviewed speaker guidelines and directed speakers to the sign-up sheets.

Variance #2005-006 ö Harry Baum
(Mr. Boger stated that this request for interpretation is given a number and called a variance simply for record-keeping purposes.)
Mr. Harry Baum is appealing Mr. Bogerâs formal interpretation of section 8-1-7 of the zoning ordinance ö ãPublic garages, for storage and/or repair of motor vehicles when in an enclosed spaceä ö as it applies to the B-1 district. In Mr. Baumâs opinion, the Afton Service Center (ASC) is operating as a Class C vehicle graveyard rather than storage. Mr. Boger stated that several months ago it was brought to the Planning Directorâs attention that Afton Service Center (ASC) was encroaching into the R-1 area behind the station. The situation was brought to the ownerâs attention and Mr. Harvey had the option to correct it by complying with the site plan or rezoning to B-1 which permits a public garage for storage, repair, etc. of motor vehicles. He chose to do the latter, and, consequently, the Planning Commission recommended to the Board of Supervisors that the rezoning be approved, which it did.

Mr. Boger said that the interpretation allows for ãenclosed spaceä to mean fence, vegetation, etc. The primary use of this property is B-1, and storage and repair of vehicles are permitted by right in B-1 zoning district. Mr. Harvey has complied with the requirements of the Planning Commission.

This interpretation is important because it affects every garage in the County. If everything must be enclosed in a structure, it will put most of them out of business. Mr. Boger showed photographs of several garages (see file):

1)      Stoney Creek Auto has expanded slightly outside the fence, but they have complied with requirements of the Planning Commission.

2)      Kirtâs Auto Sales & Repair has a sales area that is not enclosed.

3)      Beaverâs Auto is an example of the difference between a Class C graveyard and a public garage. It is a stand-alone business in A-1 with a CUP for Class C graveyard. They do have the required fence in the front and the number of cars is limited. The Board of Supervisors has the right to limit the duration of a Conditional Use Permit.

4)      An illegal Class C graveyard on Lobo Lane has 50-60 cars. The Board of Supervisors denied a Conditional Use Permit. The owner lives in D. C.

Mr. Boger feels that garages need a place to store vehicles outside the building and that itâs not considered a graveyard.

Applicant Harry Baum stated he was coming before the BZA to request an unbiased opinion of the interpretation of Section 8-1-7 of the Nelson County Zoning Ordinance by the Zoning Administrator and Board of Supervisors and that the Planning Officeâs interpretation of storage at a B-1 public garage is that it allows an unlimited number of vehicles in any condition to be stored indefinitely. The Code of Virginia, Section 33.1-348(2) - Junkyards ö had been given to the Board prior to the meeting. Mr. Baum said it appears Nelson County has used the Virginia code to apply to automotive graveyards in the zoning ordinance and attempted to use the zoning code to show the distinct difference between a public garage and an automotive graveyard and to erase any separation between the two. In Mr. Bogerâs letter of February 17, 2005, he stated: ã·I cannot restrict the number of vehicles that can be stored in an enclosed area, the length of time they can remain, and the type of vehicle that can be stored there. Since 1977 this has been a consistent interpretation of the zoning ordinance·ä When asked for documentation, the Planning Office could not find any. When County Attorney Phillip Payne was asked, he couldnât find documentation either.

Mr. Payne reiterated information from his April 1, 2005 letter to the BZA (see file) which stated, in part: With a graveyard, as the name implies, motor vehicles may be indefinitely stored, and frequently parts are removed from the vehicles either for sale or for installation in another vehicle. Moreover, with Class B and C graveyards, storage is the primary use. With garages, the vehicles are being held for disposition following towing, are awaiting repair, are in limbo pending insurance company decisions, or have been abandoned by the owner, in which case the garage owner must go through a time consuming process in order to acquire title.

Mr. Baum said that he agrees with this concept. Mr. Payne has drawn a clear and distinct line between automobile graveyards and public garages. A garage can store vehicles for a length of time, as stated by Mr. Payne. However, for trees to grow up in them indicates that a graveyard has been established. He disagrees with the final sentence of Mr. Payneâs letter: Accordingly, the County asks that the Board of Zoning Appeals affirm the Zoning Administratorâs interpretation. He stated that either the issue was not clear to Mr. Payne or he doesnât understand how some public garages are operating. Mr. Baum has visited 6 garages in the area. Four are operating according to code with two or fewer inoperative vehicles and two are graveyards. As the News-Virginian reported on March 8, 2005, Mr. Harvey packed and hauled away 100 vehicles the first week of March. These vehicles collected over 8-10 years and suddenly they could be dealt with. This has exceeded anyoneâs definition of the word ãstorage.ä This is a automobile graveyard, Class C. He stated further that on several occasions Mr. Boger has had no opinion on issues before the PC because it affects one of his ãbosses.ä Therefore, his opinion should not be allowed to affect this decision.

Mr. Payne said he was trying to decide whatâs before the BZA. Based on Mr. Bogerâs letter, it doesnât sound like there is disagreement in definition, but a difference in application, specific to each site. When the ordinance creates grey areas, ãa consistent construction of an ordinance by officials charged with its enforcement is given great weight.ä The ordinance was drafted to describe ãstorageä ö the application is whatâs questioned here. The purpose of Mr. Bogerâs letter was to give his interpretation. Heâs aware of the problem of getting rid of vehicles which are brought or towed to garages.

Ms. Russell referred to Mr. Baumâs reference to the Code of Virginia on regulations on junkyards which the Nelson County Code does not address and asked whether we abide by the Nelson County Code or the Code of Virginia.   Mr. Payne said that the Code of Virginia deals with the Stateâs Commonwealth Transportation Board. The County deals with the zoning. ordinance. Definitions were borrowed from the Code of Virginia for the Nelson ordidinance. The BZAâs job is to deal with the local ordinance.

Mr. Bradshaw asked Mr. Baum if the six places he visited were ãgrandfathered.ä His response was that he didnât know.   Several had 1 or 2 vehicles that looked like derelicts. Four places had no unusable vehicles.

Mr. Bradshaw opened the public hearing.

John Kirt ö Kirtâs Auto Sales and Repair. He has a vehicle storage problem, the same as Mr. Harvey. He has to absorb the cost of towing and storage on over 30% of the vehicles he takes in because they have been abandoned. He asked Mr. Payne how long he must legally hold on to the cars. It costs approximately $25/day for storage and between $125 and $150 to tow. He tries to hold them for 30-60 days and then he takes them to the junkyard. He took 32 last Spring, 6 last week, and will take 12 next week. Mr. Bradshaw suggested he contact a lawyer to determine legality and limits of holding/disposing of vehicles that area abandoned. Heâs had one person in 8 years to come back after her vehicle had been held for 3 months. It was too late ö the car had been taken to the junk yard.

Tommy Harvey of ASC reminded the Board that the only thing they were to hear tonight is Mr. Bogerâs interpretation of public garage. Other items have no affect on the appeal.

Bo Zirkle disputed the statement about trees growing through the cars. He stated there are no trees on that land ö just brush and hay. When houses were being built the trash piled up.   With a junkyard, parts are sold out of it ö someone needs to read the definition if itâs not clear to them.

Public hearing was closed.

Mr. Boger informed the Board that in order to reverse the Planning Administratorâs decision, 3 votes are needed, according to the State code. Ms. Cash opined that the mandate was clear. They were not to determine what any particular garage does or does not do, but to decide if Mr. Bogerâs interpretation is correct. Her understanding is that the interpretation is correct in intent. The zoning ordinance clearly allows public garages to store vehicles within an enclosed space, as differentiated from an enclosed structure.

Ms. Russell stated her agreement with Ms. Cashâs interpretation of what the BZAâs mandate is, and made a motion that on the variance application #2005-006 for Harry Baum, interpretation of decision by the Planning Director, Mr. Bogerâs decision be upheld.

Ms. Cash seconded the motion and motion passed 5-0.

Mr. Bradshaw notified Mr. Baum that he has the right to appeal this decision to Circuit Court and Mr. Baum said he was working on it.

Variance #2005-003 ö Vance Wilkins, Jr.
Mr. Boger reported that Mr. Vance Wilkins asked for an interpretation from the Board regarding a potential use of the old cold storage building in Arrington, Virginia. The property is zoned M-1 and Mr. Wilkins has a client interested in using the building to disassemble motor vehicles and store the parts on the upper floors for resale. Also, the client would like to sell some of the vehicles he repairs at this facility. Most all of the activity will be conducted within the building except for some outside storage and the storage or display of vehicles for sale. Mr. Wilkins believes this is a manufacturing process because his client would be dissembling the vehicle, the reverse process of assembly, which is permitted in this district. In Mr. Bogerâs opinion, the disassembly process is an automobile (vehicle) salvage operation, even if conducted inside a building, and is not a permitted use in the Limited Industrial District. It could possibly be located in an Industrial District, M-2, per Section 9-1-2; ãAutomobile assembling, painting, upholstering, repairing, rebuilding, reconditioning, body and fender work, truck repairing or overhauling, tire retreading or repairing, or battery manufactureä or Section 9-1-6a, ãAutomobile Graveyard, class C.ä However, since this type of use is not specifically listed in the ordinance, the underlying premise of our zoning ordinance is that if it is not listed in the text, then it is not allowed. Mr. Wilkinsâ client plans to lease and possibly buy this building.   Resale is not allowed in the M-1 district. There could be some display on the lot across the street within sight of the building - the area where the train station was located. The Planning Commission has allowed truck repair in another part of the building for which a Special Use Permit was required. After additional information was supplied, it was declared to be a permitted use because the applicant was warehousing (everything was inside the building), with the condition that if the business expands, a SUP would be required.

Mr. Bradshaw felt that ãif not listed, automatically prohibitedä is an unfair ruling. Mr. Boger said there are provisions in these situations to go before the PC and BOS for exceptions. He gave several examples where this had applied (Recycling center, Orion, adult day care center, etc.). Mr. Bradshaw said that in 1972 if a use is by right in B-1 it was allowed in any other district which was ãbelowä B-1, i.e., M-1 or M-2. Mr. Boger explained that pyramiding into different districts is not the way the current ordinance is designed. There must be provision for carry-over, and there is none. The reason for coming to the BZA is to have a public record of decisions made.

Ms. Cash wanted to know whether the BZAâs determination of an allowed use would result in ãautomobile assemblyä being added to the ordinance in this district. Mr. Boger said it would, and that it would have to be looked at very carefully. Mr. Miles felt this allowance could create a junkyard and Mr. Boger agreed it has that potential.

Mr. Wilkins said it was extreme to think the zoning ordinance could include everything that is permitted, so the idea of ãif itâs not listed, canât do itä is not feasible. The ordinance states, for M-1 District: These industries are generally light industrial which are office oriented or oriented toward the manufacturing, processing, assembly, warehousing and/or distributing of goods and materials which are dependent upon previously prepared raw materials refined or processed elsewhere. This fits perfectly. Cars were assembled somewhere else, brought here to repaired and resold. Mr. Wilkins pointed out that automobile assembly is permitted in M-2, which is for heavy industry. Examples of that would be the GE Plant, the Foundry in Lynchburg, etc. There is no heavy industry in Nelson County. Light industrial, as stated before, is for limited industrial use, processing and distributing. The cars would not be sent somewhere else for sale ö they would be sold right there. He asked about outside storage since it is permitted by Conditional Use Permit in M-1, as it applied to the situation discussed earlier. If storage is outside they would have to have a fence put around it. His basic question is whether what heâs proposing to do is considered ãprocessing.ä

Ms. Russell asked how many employees are anticipated and Mr. Wilkins said there would be 4-5 initially and possibly 6 as business builds up. Cars would be stored outside for which a CUP would be needed. There are only 4 businesses in M-1 district in the County (Progressive Engineering, Central Va. Elect. Coop., etc.) and this business would not have the amount of traffic and parking as these companies have.

Mr. Bradshaw opened the public hearing. There were no comments, and public hearing was closed.

Mr. Wilkins stated that the Board has already made a decision of what can be done on the inside of the building. Mr. Boger said that was for repair, not disassembly. Mr. Childs stated that to define a salvage operation as ãprocessingä would be stretching it to cover this case. Ms. Russell also felt this doesnât fit as processing. Sheâs also concerned about possible outside storage of vehicles and their sale. This doesnât fit the ordinance as written, but might be acceptable for an inside operation.   Mr. Wilkins said it appeared that B-1 can have public garages for storage of vehicles. Mr. Bradshaw brought up again the pyramiding of uses from one district to another. Mr. Childs stated there is no higher or lower hierarchy in the ordinance. Each district has its own uses.

Mr. Bradshaw asked Mr. Boger what options Mr. Wilkins has if the BZA interprets that this operation cannot be in M-1. Mr. Boger replied that he can seek to have it rezoned, which would be a good choice, based on the history of the building. He can also apply for a CUP, request approval under the ãUses not provided forä provision of the ordinance, or SUP. The ordinance would have to be amended before permitting this in M-1. It would then be allowed in all M-1 districts. This means the option would have to be made to everyone when the zoning ordinance is changed. Ms. Russell is unsure of the PCâs reaction to a change such as this, which would be spot zoning.

Mr. Wilkins said that if the work outside is a concern, heâs talked with neighbors living close and no one has any objections.   He asked if a Conditional Use Permit could be issued tonight and the Board could add whatever conditions were necessary. Mr. Bradshaw reminded Mr. Wilkins that the BZA is to interpret M-1 only, not make a decision about what is to be done. Mr. Wilkins said the word ãprocessingä is what needs interpreting.

Ms. Russell made a motion on Variance #2005-003 to uphold the opinion of Mr. Boger, Planning Director, that the disassembly process proposed in this building is indeed a salvage operation which is not permitted in the zoning ordinance under the Limited Industrial, M-1, zoning district. Mr. Childs seconded the motion and motion passed 5-0. Mr. Wilkins asked what he could do next. Mr. Bradshaw said he could go to the Planning Commission to request rezoning to B-1 or M-2 or request approval under the ãUses not provided forä provision of the ordinance. He explained the process and time frame of applying to the PC and proceeding to BOS.

Variance #2005-007 ö Sandra W. Pillow Shumaker
Mr. Boger reported that Sandra W. Shumaker is requesting a variance to reduce the required 80,000 square feet of area required by Section 4-2-1 of the zoning ordinance to 46, 217.16 square feet to permit two dwellings on her property located at 539 Rockfish Crossing, Schuyler, Virginia.

On August 29, 2000, a zoning permit was issued to permit the construction of a new home on a 1.061 acre parcel of land at 539 Rockfish Crossing. The existing dwelling was to be removed within thirty days upon completion of the new house. The applicant agreed to this condition in writing because the size of the lot was too small for two detached dwellings. The new dwelling unit has been constructed but the original structure has not been removed as agreed to on August 28, 2000. Ms. Shumaker does not want to remove the dwelling and is requesting a variance. Unfortunately, in this situation, the hardship has been caused by the applicant by not completing her contract with the County. There was a similar case several years ago, and the Court required the removal of one of the dwellings because of the agreement made when the permits were approved. Therefore, one of the dwellings has to be removed or more land acquired and added to the property to comply with the area requirements.

Ms. Shumaker stated that she did sign the paper Mr. Boger referred to. She talked with contractors at the time and found that it would cost $5,000-$10,000 to take the house down and she didnât have that kind of money. The house is still livable and in good condition. Sheâs talked with Mr. Banton about buying additional land, but he does not want to sell any of his property. She feels the house is in too good a condition to tear down and asks for consideration. There is someone who is willing to move the house, if that has to be done.

Ms. Russell said she can appreciate Ms. Shumakerâs situation. There could be an issue with reserve drainfields required by the Health Department. Ms. Shumaker said the Health Department agreed to having two houses on the same system when the new house was built. Mr. Bradshaw explained the reserve drainfield concept to Ms. Shumaker, who said that the septic system was put in back in 1972. There is enough drainfield for 5 bedrooms and sheâs only using two bedrooms in the new house.

Ms. Cash said she doesnât think the original decision was an arbitrary one ö there are similar situations all over the County and the same regulations apply. She couldnât vote to keep two buildings on a lot of this size. Mr. Childs agreed. Mr. Miles said he had looked at the area also and there is plenty of space to walk between the two houses. He understands the amount of space needed for one house is 40,000 sq. ft. but doesnât think the house should have to be destroyed. Ms. Cash stated that in some areas with 40,000 sq. ft. there is a problem with septic systems. The original agreement was for the second dwelling to come down when the new house was built. Mr. Bradshaw agreed.

Ms. Cash said that the Health Department has established guidelines and there has to be space for a drainfield and reserve. The requirement was established, the applicant knew the requirement, and the contingency for getting the permit was clear. Ms. Shumaker agreed and signed a contract. Mr. Bradshaw agreed with these facts. The only option he sees is buying more land. If this variance gets approved, there will be problems with similar situations. Ms. Shumaker said buying more land is not an option ö no one wants to sell.

Mr. Childs said the economics of demolition probably havenât changed. Mr. Bradshaw said that Ms. Shumaker must do what she agreed to do, but that it will probably be more costly now. Ms. Shumaker asked if she was to just leave it to fall down. She said she didnât have the money to have it demolished. Mr. Bradshaw stated that she shouldnât have signed the agreement if she was not willing to do so in 2000. He thinks the vote will be that the house must be destroyed, with a time limit given. Ms. Shumaker asked if she could tear down the new house and move back into the old house. (No response given.)

Mr. Miles asked about the possibility of selling the old house to the neighbor who has 10 acres of land. Mr. Boger reminded everyone that manufactured homes built before 1974 are prohibited from sale. Ms. Shumaker said the mobile home canât be taken out of the structure which was built around it.

Ms. Russell made a motion to deny Variance #2005-007 and that Ms. Shumaker be required to:

1)      remove the second home with work to begin by June 30, 2005 and completed by September 1; or

2)      have a signed contract with a licensed contractor by September 1, 2005 to demolish the house; or

3)      have a written contract by June 30, 2005 to acquire additional land to allow the additional dwelling e to be in compliance.

Ms. Cash seconded the motion. After discussion concerning the time limitations called for in the motion, Ms. Russell withdrew the original motion and Ms. Cash withdrew her second.   Ms. Shumaker asked about building permit procedures if someone agrees to purchase the house, and was advised to see Mr. Boger at that time. Ms. Russell then made a motion that the application for variance #2005-007 for Ms. Sandra Shumaker be denied and that the second house be removed from the property or the property brought into compliance within six (6) months of todayâs date (4-4-05). Ms. Cash seconded the motion. Motion passed 4-1 with Mr. Miles voting ãno.ä

Other Business: None

Adjournment: Mr. Bradshaw declared the meeting adjourned at 9:25 P. M.

Next Meeting: May 2, 2005

Respectfully submitted,

Betty Fortune
Secretary