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HomeMy WebLinkAbout11/19/2008 - MinutesROANOKE COUNTY BOARD OF ZONING APPEALS MINUTES OF PUBLIC HEARING NOVEMBER 19, 2008 BZA Members Present: Mr. Richard Jones, Chairman Mr. Kevin Barnes Mr. Eric Thomas Mr. Carlton Wright Mr. Eldon Karr Staff Present: Mr. John Murphy, Secretary Mr. Joseph Obenshain, Senior Assistant County Attorney Mr. Christopher Patriarca Mr. Bill Richardson Ms. Rebecca Mahoney Ms. Becky Meador, Recording Secretary CALL TO ORDER Mr. Jones called the meeting to order at 7:00 p.m. APPROVAL OF AGENDA Mr. Murphy asked that the 2009 Board of Zoning Appeals Calendar be placed on the agenda. Mr. Karr moved to approve the agenda with the revision, which carried unanimously. PUBLIC HEARING The Administrative Appeal by Sara Johnston Jones of the Zoning Administrator's Interpretation of Sections 30- 88- 2(A)1 -6 (Accessory Uses: Residential Use Types) of the Code of Roanoke County at 5129 Sorrel Lane, Windsor Hills Magisterial District was presented by Mr. J. Warren Tomlin, counsel for Ken and Sara J. Jones. Mr. Tomlin felt it important for the Board to know that the Jones' property had been vacant for five (5) years at the time of purchase. They have done massive improvements to the home. He felt more than any other home on the street. They had approximately twenty -nine (29) trees removed that posed danger to his neighbors' property. Mr. Tomlin stated that Ms. Johnston Jones had received one violation notice with two (2) separate charges. One was for a trailer in front of the front building line, for which she was not aware of the code. This issue has been corrected and is now in compliance. That violation is not being appealed. Section 30 -4(A), "Uses and activities not provided for or addressed by the terms of this ordinance, shall be considered prohibited uses and activities, unless the administrator shall find that the use or activity is compatible and consistent with the provisions of this ordinance. ", followed by Section 30- 88 -2(A) 5. "Other uses and activities necessarily and customarily associated with purpose and function of residential use types, as determined by the administrator." were questioned by Mr. Tomlin. He stated that the Zoning Administrator, Mr. John Murphy, had been nothing but professional and helpful Page 1 of 4 ROANOKE COUNTY BZA MEETING MINUTES November 19, 2008 during the appeal process, which he appreciated very much. Mr. Tomlin explained that the appeal is primarily based on the definitions of "storing" and/or "keeping" of equipment related to a High Intensity Industrial use as interpreted by the Zoning Administrator. Mr. Tomlin stated that Merriam Webster's 11 Edition Collegiate Dictionary defines storing as "the action of placing or leaving in a location (i.e. a warehouse) for preservation for later use or disposal ". It defines keeping, or to keep, as "to preserve or maintain, or to cause to remain in a given place, situation, or condition ". It further defines keeping as "to hold or retain securely in one's possession, custody, or control ". He feels "retaining" implies continued keeping. He feels these definitions are important because they are the basis of the Zoning Administrator's determination. Mr. Tomlin questioned if a portable toilet left in the back of a pick -up truck (personal truck, not a commercial vehicle) or on a trailer overnight only (in a residential neighborhood) constituted keeping or storing. He feels, by definition, this is neither "keeping" nor "storing ". It would simply be there overnight for delivery the next day. He noted that "overnight" is not defined in the ordinance; therefore, it is ambiguous and unenforceable. He asked if it would be "storing" or "keeping" if Mr. Jones stopped by his home for lunch, to use the restroom, or bring something for his baby. He conceded that multiple toilets lined up at the side of the house waiting for a future order would be considered "keeping" or "storing ". Mr. Tomlin declared that no toilet has ever been removed from a truck or trailer at the residence and has been brought home overnight only on rare occasions. He added that the toilets in question were always empty and clean. He stated that Affordable Portables' trucks are the cleanest in the county and noted that the trucks and toilets on job sites are inspected by the Occupational Safety and Health Administration (OSHA) and the county. Additionally, the chemicals used in and to clean the toilets are regulated. Mr. Tomlin stated that High Intensity Industrial use is undefined in the Zoning Administrator's determination. He stated that the Zoning Ordinance exists for the health and safety of citizens and felt the section in question is arbitrary and capricious; therefore, unlawful and unenforceable. Mr. Tomlin felt, with no clear definitions in the ordinance, every portable toilet in county parks should be removed. He stated his opinion that one, clean, portable toilet on Mr. Jones' truck is less of a health risk than all of the portable toilets at county parks and activities. He questioned if the county should prohibit firewood because it may catch fire or petting zoos at children's birthday parties because Customs asks if you have been in contact with farm animals. He also questioned if there had simply been a tire in the back of a truck, would that have been considered a violation, or if the issue is because it is a toilet. Mr. Tomlin advised the Board of the cost and distress to Mr. and Mrs. Jones and asked that the violation be rescinded. It was uncertain if the case would be appealed to a higher court if the appeal should be denied. Mr. Tomlin also advised the Board that he felt the Zoning Ordinance should be revised to prevent the risk of maladministration as set forth in Article 1, Section 3, of the Constitution of the Commonwealth Virginia. Page 2 of 4 ROANOKE COUNTY BZA MEETING MINUTES November 19, 2008 Mr. Wright asked Mr. Tomlin to clarify what is being requested. Mr. Tomlin stated that the there is no intent to store portable toilets at the residence. Mr. Jones would like to infrequently bring home a clean toilet for delivery the next morning. This may happen more during the warm (seasonal) months. Mr. Jones had driven home the commercial pumper truck twice; however, that has not been done since he was found in violation. After further questions raised by Mr. Karr, Mr. Tomlin confirmed with his clients and admitted there were portable toilets at the home approximately six (6) to eight (8) times. There was considerable discussion of "danger" or "storage" being the primary issue. It was agreed that there is not a clear definition of "storage" in the ordinance. Mr. Barnes sympathized with the Applicants and recognized some ambiguity in the ordinance, but felt the Zoning Administrator's interpretation of intent was accurate. Mr. Karr noted that the purpose of the ordinance is for governance of the community. He questioned if having a portable toilet is compatible with a residential neighborhood. He felt that would not be appealing to a potential purchaser. Mr. Tomlin asked if lawn equipment in the back of a personal vehicle would be the same. Mr. Murphy stated that mowers and utility trailers are expected and consistent within a residential neighborhood. Paving equipment and/or portable toilets are not an expected residential use. Mr. Obenshain noted that portable toilets are permitted on construction sites through the building permit. Mr. Jim Allman, 2114 Bridle Lane, Roanoke, spoke on the appeal. He stated he lives four (4) houses from the Jones' and is concerned with the potential danger and cosmetic image of the toilet. He stated that the neighbors or people driving by have no way of knowing if the toilet is clean or not. He voiced his concern of what other uses might be permitted if this one is allowed. He felt it was not appropriate for a residential area. Mr. Allman noted that he has two (2) properties and frequently trailers his mowing equipment from one to the other. He stated that he has a large investment in his home and does not want to see the portable toilet from his home. Mr. Dick Martin, 2101 Bridle Lane, Roanoke, spoke on the issue. He lives behind and three (3) lots down from the Jones'. He stated he is in agreement with Mr. Murphy. He has owned his home since 1966. He advised the Board that he purchased a new boat many years ago that he could not park in front of his home and he has abided by the county code. Mr. Andrew Eckert, 5128 Sorrel Lane, Roanoke, also spoke on the appeal. He stated that he lives across the street from the Jones' home. He hoped that the Board would agree with the Zoning Administrator. He advised that he has numerous photographs and that the portable toilet has been there more than twice. He expressed that he does not want the toilet(s) in his neighborhood. Mr. Tomlin stated he understood and appreciated the neighbors' concerns; however, it would not be a constant occurrence. He said that the Applicants may appeal higher, but would comply with the Board's ruling. Mr. Thomas noted that a use not provided for in Page 3 of 4 ROANOKE COUNTY BZA MEETING MINUTES November 19, 2008 the ordinance, is considered not allowed. Mr. Murphy and Mr. Obenshain concurred. Mr. Wright moved to grant the appeal and overturn the Zoning Administrator's ruling. He stated he was bothered by the definitions of "storing" and "keeping" and believed that overnight did not meet these definitions. Mr. Obenshain asked Mr. Wright to clarify his motion. There was no second to his motion. Mr. Karr made a substitute motion to uphold the Zoning Administrator's determination, stating that the judgment was compliant to the intent of the ordinance. He did feel that the specific wording of the ordinance is worthy of reviewing; however, stated there is no way to have an ordinance that addresses every single issue. That is why the Board of Zoning Appeals exists. Mr. Barnes seconded Mr. Karr's motion. Mr. Murphy called the roll and the motion passed, 4 -1. AYES: Thomas, Karr, Barnes, Jones NAYES: Wright ABSTAIN: None APPROVAL OF MINUTES for April 16, 2008 Mr. Wright made a motion to approve the minutes. Mr. Barnes seconded the motion, which passed unanimously. 2009 CALENDAR Mr. Wright moved to approve the 2009 Board of Zoning Appeals Meeting Schedule as submitted. Mr. Barnes seconded the motion, which carried unanimously. COMMENTS There being no further business, Mr. Jones adjourned the hearing at 8:02 p.m. Respectfully Submitted, Becky Meador, ecor�,6g Secretary Roanoke Cou Board of Zoning Appeals Joh Murphy, Secr t Roanoke County Board of Zoning Appeals Page 4 of 4