TOWN OF CAPE CHARLES, VA

At about 10:00 a.m. on February 18, 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 Julia Parr, Tom Bonadeo, and Steve Hairfield. Also present were Town Planner Atwood and Town Clerk Moore.

There were 7 members of the public present.

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

Motion was made by Julia Parr, seconded by Steve Hairfield, and unanimously passed to approve the minutes of January 9, and 14, 2004.

Overview of Application

Zoning variance is to go 25 feet into a 30-foot corner side yard setback requirement on the lot located at the northeast corner of Tazewell and Strawberry (lot 391C/392C in the 200 block of Strawberry).

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 all of following conditions exist:
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 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.

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.

No such variance shall be authorized unless the board finds that the conditions or situation of the property concerned is not of so general or recurring a nature as to make reasonably practicable the formulation of a general regulation to be adopted as an amendment to the ordinance.

In authorizing a variance, the board may impose such conditions regarding the location, character, and other features of the proposed structure or use as it may deem necessary in the public interest, and may require a guarantee to ensure that the conditions imposed are being and will continue to be complied with.

Town Planner Atwood noted that Mr. Ed Wells owns the piece of property on the corner of Tazewell and Strawberry. At this time, Ms. Atwood shared a picture of the property with the Board. Mr. Wells also owns the duplex on the end and he would like to build on this empty lot. There once was a house on this lot many years ago. The lot is 35 feet wide by 80 feet deep and in the zoning ordinance it states in Section III, “The setback line in a R-1 district shall be located 30 feet from all right-of-way lines. In the case of a corner lot, no structure shall be located closer than 30 feet from the right-of-way lines of the side street if possible. In built-up neighborhoods, the prevailing setback shall be the standard to which new housing must conform where possible. If a prevailing side yard setback of corner lot setback does not result in a buildable area, a 10-foot side yard setback will be allowed if the following conditions are met: a 40-foot wide corner lot, a rear line abutting a side lot of a typical lot or alley with prevailing front yard setback of 10 feet or more.”

This particular piece of property meets the second requirement according to Town Planner Atwood. Since the property is 35 feet wide and not 40 feet wide, it does not meet the first condition, so therefore the need for the variance arose.

A footprint was done matching the estimated setback of the house diagonally across the street. Town Planner Atwood and Owner, Ed Wells went into more detail regarding the variance requested.

Public Comments

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 is across the street and down Tazewell. She is a secondary player because she is not directly affected as the people who are adjacent to the property in question. Ms. Volk doesn’t strongly oppose this request, but has 5 areas of concern that she asks the Board to consider. Those being:

1. Fire Safety.
2. Traffic Safety.
3. Value of home to decrease.
4. Sewer backup at this intersection in the past.
5. Opening precedence.

Donald McMath who owns 304 Tazewell Avenue but lives in Virginia Beach noted concerns, which included:

1. Enforce and stick with the Code.
2. Fire Hazard.
3. Neighborhood character.
4. Parking.

There was some discussion between the Board and Mr. McMath.

Chris Bannon who lives at 9 Tazewell Avenue voiced his approval for the variance.

Board Members’ Discussion and Review

At this time, the Board discussed and reviewed the application. It was noted that all building codes would be followed regarding fire safety materials. It was also discussed that the Historic District Review Board would review the overall site plan to include the appearance (character) of the house. Parking was discussed and is only an issue with conditional use permits. Chairman Munz noted that the front yard set back would be dictated by the average prevailing setback. Tom Bonadeo noted that the guidelines are in the code to allow flexibility and two of those are neighborhood and prevailing standards. When things don’t conform, you have to go to prevailing standards and a neighborhood in the rules is described as a two-block area in each direction. There are several corner lots in this area that face the side street. The Zoning Ordinance addresses a 40-foot lot that faces the side streets, so this allows an exception. 50% of similar houses in the area have similar attributes, which allows the prevailing standards to exist. Mr. Bonadeo called this a strict interpretation of the guidelines. It’s the flexibility that the guidelines allow the Board to get these done. It allows the Board to chose the attributes of the neighborhood to match new construction to the existing neighborhood not to make it stand out different just because of a rule and to let someone build on their lot.

Motion was made by Julia Parr, seconded by Steve Hairfield, and unanimously approved to grant a variance into the corner side-yard setback to result in the requested five-foot corner side-yard setback, provided that this setback is not less in distance than the corner side-yard setback of the house located diagonally across the street from the site.

Motion was made by Tom Bonadeo, seconded by Julia Parr, and unanimously approved to adjourn this meeting.

Roger Munz_________
Chairman

J.R. Moore__________
Town Clerk