TOWN OF CAPE CHARLES, VA

At about 11:00 a.m. on January 9, 2004, Chairman Roger Munz called to order the meeting of the Board of Zoning Appeals. In addition to Mr. Munz, the following people were present: Board members Steven Hairfield, Pete Baumann, and Julia Parr. Also present were Town Manager Burge, Town Planner Atwood, and Town Clerk Moore.

There were 4 members of the public present.

Town Manager Burge provided the invocation and all participated in the Pledge of Allegiance.

Public Comments

The Town Clerk read a letter from Donna Bozza Packer and Robert P. Packer. The letter was dated January 9, 2004 and was addressed to the Planning Commission, but was meant for the Board of Zoning Appeals.

I’m writing in regards to the meeting being held today, concerning the house owned by Andrew Colsky on the 600 block of Randolph Avenue. My husband Robert Packer and I own a home at 606 Randolph.

The property Colsky now owns has been the most horrible of eyesores on a block that has been suffering blight for decades. We, as were our neighbors, were thrilled when Colsky bought it and began renovating it. From the contractor he chose to his plans for the house, the results of his renovations will be a dramatic improvement that will no doubt uplift the entire block, a street which is often the first glimpse visitors have of our town.

I understand there is a dispute over this being renovated as a duplex. From what I know this home was a duplex in the past, certainly it should be grandfathered in. I believe the historic integrity of the structure will not be harmed; in this case its historic value has been left to crumble for years and years. We should encourage someone who is taking the time and much money to save this house, which many would have seen as a lost cause. It can serve as a fine example of what can be done to help our town continue to return to its beautiful Victorian roots.

As a writer I recently did a magazine article on Chesapeake Beach, Virginia which is having problems with investors coming in and tearing down quaint 1920 era beach cottages to put up huge unappealing duplexes that change the face and character of a neighborhood forever.

Certainly Cape Charles should have zoning that protects against such destructive actions and perhaps should stop homes that were never duplexes in the past from becoming them now.

However Mr. Colsky bought his property, as a duplex and I understand has been taxed as such. He is leaving the home intact and maintaining the historic integrity of the property.

Please do not put a roadblock up on this project; we need it desperately and in a timely fashion.

Thank you for your time.

Sincerely, Donna Bozza Packer & Robert P. Packer

Debbie Kozak & Jenni Potts (minutes given to Melvin Dudley). Melvin Dudley who lives and resides at 303 Madison Avenue. The Town tends to be reactive as opposed to be proactive. Both Debbie Kozak and Jenni Potts had been to Town Council and had spoken about this property and what an eyesore it was in which they complained continually. Both of these citizens are pleased that the new owner is attempting to fix it up. They asked Mr. Dudley to ask the Board of Appeals to do whatever they can to make this happen. Mr. Dudley this addressed the Board of Appeals from his own perspective. This house has already passed the Historic District Review Board, but at that moment in October of 2003, the Historic District Review Board and the Building Official, Doug Smith saw a problem relative to the zoning that concerned the house was vacated over 4 years. Russ Dunton, the Chairman of the Historic District Review Board was torn apart with his concerns and spoke with the Building Official, Doug Smith and Councilman and Planning Commissioner Bruce Evans. Evidently several years back, both Russ Dunton and Bruce Evans worked on the zoning ordinance which was trying to be proactive which is active reactive because people were coming into Town taking single family dwellings and making them into duplexes. Mr. Dudley noted this particular property should not be the case and the Planning Commission did not intend to stop something that was a duplex from being back as a duplex. The Planning Commission wanted to keep people from coming in and taking a single family dwelling and make into 2 or 3 apartments. The intent of the law is not the letter of the law. Mr. Dudley believes that the law (the ordinance) needs to be changed so this does not happen again.

Overview of Appeal

Appeal of Zoning Administrator’s Decision on 12/31/03 to not allow 626/628 Randolph Avenue to become a duplex after being vacant for a period of more than 4 years - Andrew Colsky.

Town Manager Burge gave a background on the decision and at which point the Board of Zoning Appeals becomes involved and why. The Town administers the Zoning Ordinance under the Zoning Ordinance Enforcement Provisions found in Section 2.4.1 B. Section 2 of the Zoning Ordinance deals with the entire general provisions as well as the section on the Powers and Duties of the Board of Zoning Appeals. Town Manager Burge noted that this Board does not meet very often and it is known that the things that are looked at are going to be noticed changes or interpretations of a wide variety of issues. One would hear and decide an appeal of an order, requirement, provision, or determination made by an administrative officer. The State Code of Virginia also indicates that the decision of the appeal is based on the Board’s judgment of whether the administrative officer was correct and in accordance with the law of which the ordinance is built, that the Board shall consider the purpose and intent of any applicable ordinance involved when making their decision.

Town Manager Burge went on to give a background of the current situation and noted Mr. Dudley in being correct with the complaints made in the past about this property. This property also has a history of code enforcement when the previous owner owned it. There is no question that Mr. Colsky’s purchasing and desiring to restore this property is certainly within the intent of the Planning Commission, the Zoning Ordinance, and the Historic District Overlay.

At this time, Town Manager Burge noted how this property got to this point, which is the non-conforming problem. The General Provision Section of the Zoning Ordinance indicates that at the time that an ordinance is passed there are going to be districts that are established and there are going to be uses that are in districts that are not permitted by right. The Historic District of Cape Charles is primarily R-1 Residential, C-1 Mason Avenue, and Commercial Residential from the Gas Station to Fig Street. There are a number of things that don’t conform to this. Also nonconforming as the R-1 reads that the following uses are permitted by right; single family dwelling, churches and places or worship, parks and playgrounds, accessory buildings, schools and municipal centers. There are also conditional uses as well. Nonconforming issues are dwelt with in Section 2.5 of the Zoning Ordinance in the General Provision Section. It is quite lengthy and in detail as to nonconforming uses that are ongoing and are allowed indefinitely as long as they are in use. They cannot be enlarged, expanded, or moved from the site. Section 2.5.1 A #6 reads “ if any such non-conforming use or structure ceases for any reason for a period of more than four years, except when government action impedes access to the premises, any subsequent use of such land or structure shall conform to the regula¬tions specified by this chapter for the district in which such land or structure is located.” The District is R-1. Duplexes are not permitted by right in R-1. Duplexes are permitted by right in R-2 and R-3.

It was asked whether the lack of occupancy could have been caused by governmental action because of code enforcement. It was noted that code enforcement didn’t occur until 2001.

Town Manager Burge noted that the previous owner had gotten a building permit after she was put on code enforcement to repair the roof. While under code enforcement some of those things were done and some not. Andrew Colsky purchased it and he hired a contractor who got a building permit on August 28th of 2003 issued to him to facilitate repairs, to avoid demolition by further neglect. This was issued by David Fauber and was for repairs that are structural to the building. That building permit does not cover restoration towards making it two separate dwelling units. In October of 2003, Mr. Colsky went to the Historic District Review Board to ask for paint color and replace the balcony in the rear. In the zoning ordinance, the Historic District Overlay is just that. It is an overlay for our national and local historic district that lies on top of the R-1; so all R-1 requirements have to be met.

Town Manager Burge noted that this property is clearly designed as a duplex and is clearly in need of renovation and it comes to the Town with an issue of what is plain language in the zoning ordinance. It is not up to the Town Council Members or Planning Commissioners, in an administrative capacity, to read the ordinance and interpret it as they think it ought to be written, but to read it and interpret it as to what it actually says. There are many duplexes in the R-1 that are nonconforming uses that maintain that nonconforming status.

The Planning Commission knows this is an issue. There are also folks who turn duplexes into single family and the nonconforming status has been lost, then they sell it and the ones who buy it want to turn it back into a duplex and cannot because it has lot its nonconforming status. Town Planner Atwood presented to the Planning Commission a report, which noted that nearly 30% of all the residential properties in the R-1 are duplexes or multiplexes. The Planning Commission currently is working on a resolution and will soon schedule a hearing on some text changes. This currently doesn’t help the Board of Zoning Appeals in rendering this current decision, but it is important to note that this issue is being researched and changed accordingly so as to be more proactive than reactive.

Mr. Colsky is doing this renovation for the federal and state tax credit program. There are time frames involved that are important. Mr. Colsky felt time was of the essence and waiting for the Planning Commission and Town Council to have public hearings and make the actual text changes would interfere with his timeframe in obtaining his credits.

Town Manager Burge gave in detail the process of how this all began. The Building Department observed some wiring work being done on December 30, 2003, and issued a stop work order. The stop work order was issued for the electrical work only. This was not a stop work order for the building permit that is currently ongoing. At the time that the electrical contractor came to get the building permit obviously a permit could not be given for wiring two dwelling sites because it is against the zoning ordinance. The Town’s Zoning Ordinance Section 2.4.2 says a building permit cannot be issued until there is zoning clearance and a zoning clearance could not be granted for work towards making it a duplex. Thus the essence of the appeal is to appeal the administrative decision to not allow the building permit because it is leading towards the creation of two dwelling spaces in that house.

The intent language for R-1 was read and discussed.

Section 3.2 Single Family Residential District R-1

A. Statement of intent. The intent of this basic zoning district is to provide quiet, medium density, single-family residential development plus provide open areas where similar residential development appears likely to occur. The regulations for this district are designed to stabilize and protect the essential characteristics of the district, to promote and encourage a suitable environment for family life where there are children, and to restrict all activities of a commercial nature as described in Section 3.6-A of this ordinance, known as Commercial District C-1, which states “These commercial activities are characterized by heavy traffic, noise, and congestion of people and passenger vehicles and by large office buildings and retail establishments,” and to promote a convenient, attractive, and harmonious community. This section is created in recognition of the existence of developed areas where single-family and duplex dwelling currently exist on lots of 5,600 square feet and where the characteristics of the neighborhood include both permanent as well as seasonal residents.

Town Manager Burge noted that there is an acknowledgement here that duplexes have been part of R-1 and will continue to exist. It was also noted that the Town Manager and Building Department wrestled with the administrative decision and left it up to the Board of Zoning Appeals to make that decision.

Several areas of discussion took place including what defines a hardship, nonconforming use, intent of language, and etc.

Town Manager Burge read from the Ordinance as related to hardship.

Section 2.6.2 Powers and Duties of the Board of Zoning Appeals

The Board of Zoning Appeals shall have the following powers and duties in accordance with Section 15.2-2309 of the Code of Virginia:

A. To hear and decide appeals from any order, requirement, decision, or determination made by an administrative office in the administration or enforcement of this ordinance;

B. To authorize upon appeal, or original application in specific cases, such variance as defined in Section 15.2-2201 of the Code of Virginia from the terms of the ordinance as will not be contrary to the public interest when, owing to special conditions, a literal enforcement of the provisions will result in unnecessary hardship provided that the spirit of the ordinance shall be observed and substantial justice done, as follows.

When a property owner can show that his property was acquired in good faith and where by reason of the exceptional narrowness, shallowness, size, or shape of specific piece of property at the time of the adoption of this ordinance, or where by reason of exceptional topographical conditions or other extraordinary situation or condition of such piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the strict application of the terms of this ordinance would effectively prohibit or unreasonably restrict the utilization of the property or where the board is satisfied, upon the evidence heard by it, that the granting of such variance will alleviate a clearly demonstrated hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant. All variances shall be in harmony with the intended spirit and purpose of the ordinance.

No such variance shall be authorized by the board unless it finds all of the following conditions exist:

1. That the strict application of the ordinance would produce undue hardship.
2. That such hardship is not shared generally by other properties in the same zoning district and the same vicinity.
3. That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance.

Andrew E. Colsky, property owner of 626/628 Randolph Avenue noted for the record that the actual owner of the property is Cape Charles Villas, LLC in which Mr. Colsky is President.

At this time Mr. Colsky presents his case beginning with clarification of the appeal in essence actually requesting the Board of Zoning Appeals review the Zoning Administrator’s decision not to allow the duplex located at 646/628 Randolph Avenue to be reinstated with its non-conforming status as a duplex. It is noted that the Town’s zoning code is preventing Cape Charles Villas, LLC from complying with local, sate, and federal programs concerning the restoration of historic structures. The Code’s provision was never intended to cause this hardship. Other provisions of the same Code contain requirements for approval from an historic review board before such a structure could be so substantially altered as to destroy a part of Virginia’s history. In order for Mr. Colsky to comply with state and federal programs, it is necessary for him to continue work on this structure as a duplex, which it has been since the day it was built, and complete the project as well as obtain a certificate of occupancy as a duplex. There is a strict time limit in order to comply with state and federal tax credit requirements. Without the credits, Mr. Colsky cannot afford to rehabilitate the structure. Substantial work remains to be done and because construction phases need to be coordinated, this zoning issue is preventing the restoration of this building.

Mr. Colsky noted that the hardship brought about by this issue is even more troubling in light of the fact that the Town has recognized this error in the Code and is currently working to correct it.

When Mr. Colsky first came to Town and was prepared to purchase the property, he went to Jim Chapman, Building Official at the time, and got an overwhelming positive response in reference to his restoration of the property. Based on this overwhelming positive response, Mr. Colsky started the process.

Mr. Colsky reviewed with the Board the process of State and Federal tax credits. Mr. Colsky commented that he has invested a lot of money into this project and currently because of the stop work order, he cannot get insurance on the property and because of the stop work order, the property site is currently a hazard. He cannot move forward to correct the problems without the Town’s permission, yet the Town notes it doesn’t want demolition. This made no sense to Mr. Colsky and he noted that he is also meeting strict timelines according to State and Federal Guidelines.

Mr. Colsky reviews with the Board the ordinance in question. The reason ordinances are written is to have some rules to go by. The reason there is a Zoning Administrator is for the sole purpose of being able to interpret the Code. Codes just like laws are interpreted based upon the intent of the code.

Mr. Colsky comes to the Board explaining that the intent of the ordinance is clear. The people who wrote the ordinance made it clear with the intent being that single family homes from being divided up.

His problems were noted as follows:

1. Received approval initially from Jim Chapman (verbal).
2. Building Department Permit was issued with duplex being on the permit.
3. Historic District Review Board approval of paint color was given, however, at the end of this meeting without prior notice was told this duplex could no longer be a duplex.

Mr. Colsky ended his case noting to the Board to look at the intent and noted changes were being made, however, not in the timeframe that he needs.

Board Members’ Discussion and Review

The Board questioned Mr. Colsky regarding certain aspects of the issues. Many delays were noted after the Historic District Review Board, which caused a setback of the work being done.

Town Manager Burge went over the Historic District Overlay with the Board.

Bruce Evans, Planning Commission member noted the Commission’s intent to make text changes in the Zoning Ordinance. Mr. Evans also asked for clarification.

Extensive and detailed discussion took place by the Board.

Member Baumann noted there is a timeline and his opinion was, whatever it takes the Board has the authority to do it, and send him on his way today.

Other members of the Board, including Chairman Munz noted concerns and suggested that Mr. Colsky continue the work necessary to have a duplex including the preparatory work, but not to install the second electric meter or the HVAC for the 2nd unit until such time as the Town passes the ordinance correction. This would not prevent him from continuing all the work necessary, but as it pertains to the elements of the 2nd unit, a CO would not be permitted on that side until the Town passes the corrected ordinance.

Extensive discussion continued by the Board and Mr. Colsky.

Mr. Colsky stated there is still the real possibility of encroaching on his deadline in which he would need time to go the next step of Circuit Court if necessary.

Chairman Munz feels that if someone else brings this same issue before the Board, that the Board of Zoning of Appeals is opening the door making a decision today against what is legal within the Town and overstepping the Board’s bounds as it sets a precedence that could be used against the Board. Chairman Munz is trying to put conditions on it to prevent that precedence.

Several scenarios on how to handle this matter were discussed. Mr. Colsky’s opinion was that he didn’t want to have to reapply and pay the fee again when and if the text amendments take place.

Town Manager Burge noted a compromise to the situation would be that if the Board of Zoning Appeals allows the work, but retains jurisdiction over the matter (get everything done) and at least one CO issued for a single family residence unless the ordinance is corrected, then at that time a 2nd CO could be issued and the situation finalized.

Member Baumann preferred to put it to rest now and do a special exception variance with the intent of the stature. This is an unnecessary aggravation and he stated this is the reason the Board is here to exercise this type of discretion in this situation where there is a uniqueness. It is highly unlikely that another case will come to the Board before the text amendment is done.

Chairman Munz again reiterated his position and felt a decision in favor would be against what the law actually states at this time. The fact that the Board knows what the existing law is although it cries out for remedy and everyone wants to see a remedy. The method is how you do it, but when you make a decision, Munz feels it is directed to existing law that can get the Board into a very dangerous position that could be used against the Board at some later date.

It was noted that was a good argument not to overrule the interpretation of the stature, however, another member noted not just that, but put conditions on it.

There was continued discussion between the Board members, the applicant, and members of the public.

Because this application was an appeal and not a variance, the Board was able to come together quickly. A variance, however, would require a public hearing and public notification.

Motion was made by Roger Munz, seconded by Steve Hairfield, and unanimously approved to grant the continuation of work on 626/628 Randolph Avenue to include the granting of one Certificate of Occupancy with the second Certificate of Occupancy be withheld until either the Town passes the amendment to the duplex ordinance or the reconvening of the Board of Zoning Appeals no later than September 1, 2004 to conclude the issue.

Motion was made by Roger Munz, seconded by Steve Hairfield, and unanimously approved to adjourn this meeting.

Roger Munz_________
Chairman

J.R. Moore__________
Town Clerk