TOWN OF CAPE CHARLES, VA

At about 10:00 a.m. on January 14, 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 Planner Atwood and Town Clerk Moore.

There were 10 members of the public present.

There was a moment of silence for the invocation and all participated in the Pledge of Allegiance.

Overview of Application

Zoning variance for Lot 501B/504B located on the east side of Strawberry Street and between Randolph & Tazewell Avenue (100 Block) for a 10 foot variance from the rear yard set back to build a house.

At this time the Town Planner gave an overview of the powers and duties of the Board of Zoning Appeals. Town Planner Atwood read the following sections of the Cape Charles Zoning Ordinance.
Boards of zoning appeals shall have the following powers and duties in accordance with Section 15.2-2309 of the Code of Virginia:

1. To hear and decide appeals from any order, requirement, decision or determination made by an administrative officer in the administration or enforcement of this article or of any ordinance adopted pursuant thereto. The decision on such appeal shall be based on the board's judgment of whether the administrative officer was correct. The board shall consider the purpose and intent of any applicable ordinances, laws and regulations in making its decision.

2. To authorize upon appeal or original application in specific cases such variance as defined in § 15.2-2201 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 a specific piece of property at the time of the effective date of the ordinance, or where by reason of exceptional topographic conditions or other extraordinary situation or condition of the piece of property, or of the condition, situation, or development of property immediately adjacent thereto, the strict application of the terms of the 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 the variance will alleviate a clearly demonstrable hardship approaching confiscation, as distinguished from a special privilege or convenience sought by the applicant, provided that 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:

a. That the strict application of the ordinance would produce undue hardship;
b. That the hardship is not shared generally by other properties in the same zoning district and the same vicinity; and
c. That the authorization of the 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.

No variance shall be authorized except after notice and hearing as required by § 15.2-2204. However, when giving any required notice to the owners, their agents or the occupants of abutting property and property immediately across the street or road from the property affected, the board may give such notice by first-class mail rather than by registered or certified mail.

Town Planner at this time gave an overview of the application and started with reading a letter from Dr. Lewis:

Dear Sirs:
Enclosed is a partially filled out application for a ten-foot variance on the back of a small lot on Strawberry Street. It is 80 ft. in length and the house I need to building will not allow the 25-foot required in the back. I need the extra ten feet there. I conform in the front and on the sides. The lot is part of lot 501 and 504 Strawberry Street. I have a purchase agreement with Chesapeake Properties to buy the lot with the contingency that I can build this small house with my physical needs met on the first floor. I plan to build a second story for overflow only. I have talked with an architect in the area and he is willing to work with me. I want it to be attractive and fit in the neighborhood.

The Town Planner summarized that Dr. Lewis has designed a house that requires an additional 10 feet in the back of the house. The zoning ordinance states that there is a 25-foot rear yard set back. This design of house won’t fit on this lot without encroaching 10 foot into the 25-foot setback.

At this time, Dr. Lewis elaborated on her application. She noted that it is a very small lot 30 X 80 and the house cannot be wider than 20 foot in the front with 5 feet on each side. Dr. Lewis noted that because of health issues, she would need everything on the first floor. She would have a second floor to accommodate her family when they visited. She also would like a small garage to possibly fit a small car, but when she could no longer drive, she would then get a golf cart. Dr. Lewis’ main reasons for the 10-foot clearance are to allow enough room to live without having to use stairs and to have a small garage. She noted that she didn’t see any other way to do the design compared to the lot size.

Public Comments

David Henderson owner of 116 Strawberry Street noted he had three main concerns regarding the variance. Mr. Henderson referred to the zoning ordinance related to the setback as well as fire setbacks. He also noted development standards in which the house should fit in with the existing neighborhood. Parking issues were also raised noting that in Article IV, there should be 2 spaces allotted where he feels there is only space for 1 barely. Mr. Henderson read several excerpts from the zoning ordinance with relation to his concerns. His final points were that of lot coverage with concerns of runoff and he lastly noted that a hardship couldn’t be created if the applicant does not currently own the property.

Donald McMath who owns 304 Tazewell Avenue but lives in Virginia Beach. His property is on the north side and was purchased in 1908 by his grandfather and the house was built on 2 lots in 1909. Mr. McMath has worked very hard to maintain this property over the years and he is present to speak against allowing this variance. His main concern is that it would hurt the value of his property by having a house so close. Mr. McMath also noted the fire hazard that this house would create and noted that Virginia Beach requires an 8-foot set back so houses can be no closer than 16 feet. On Mr. McMath’s property for whatever reason when the house was built in 1909, they allowed garages to be built right on the line; so in the back of his house, there is a garage that is 22 feet square. One side runs down the line so if this house was built with a 5-foot setback, you could stand between the house and the garage and touch each one. Mr. McMath noted he was a believer in property rights and urged the Board to strictly follow the zoning rules of the Town. If this house were to be built, there would be a very narrow strip of land all the way around the house. He added it would cover 65% of the lot that would create a problem. Mr. McMath noted there is currently a drainage problem with water standing and water from this house would have to go somewhere. If the house were built, the view and sun would be blocked as well. Mr. McMath ended noting that his two lots and the way the house is situated, he could take the same variance scheme that is presented and could build two houses just like this; one in the back and one on the side of the house if he used what was approved by the Board. Again Mr. McMath urged the Board to strictly enforce the zoning and not grant the variance.

Chris Volk lives outside of Cheriton, however, is speaking for his mother, Louise Volk who resides at 314 Tazewell Avenue and is hard of hearing. Ms. Volk has lived at 314 Tazewell Avenue since 1973. Her property adjoins the subject property on the east side and Mr. Volk noted that his mother wanted to thank the Board for the opportunity to present her concerns, which are basically two. The first concern was that the proximity of homes should this variance be granted would be such that would probably create a fire safety hazard and secondly it would reduce the property value. Ms. Volk herself spoke and noted that the property should be viewed and that the Board after viewing the property would then use their own common sense.

At this time, Town Planner Atwood presented the Planning Commission’s comment. The Planning Commissioners noted that in their estimation and review of what constitutes a hardship, they believe that you can’t buy a hardship. Someone can’t buy a piece of property with the intent that it would cause a hardship. The Planning Commission also noted that this lot would accommodate a 960 square foot house that meets all setback requirements. It doesn’t constitute a hardship just because this particular design of house doesn’t fit on this lot.

Board Members’ Discussion and Review

At this time, the Board discussed and reviewed the application. Town Planner Atwood also noted that a patio is allowed, but a deck is not allowed into the setback. The Board noted that this house did not fit the lot size and in following with the zoning ordinance is not a hardship.

Motion was made by Steve Hairfield, seconded by Julia Parr, and unanimously approved to decline the application for a zoning variance in which the application does not meet the criteria for a hardship.

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

Roger Munz_________
Chairman

J.R. Moore__________
Town Clerk