BZA approves family apartment

The Rappahannock County Board of Zoning Appeals in its June 22 meeting approved two special use applications — one for a family apartment, the other to convert a residence into a tourist home. Both applications had been recommended for approval by the planning commission at its June 15 meeting.

BZA members voted 4-1 to approve a special use permit for a family apartment on Turkey Ridge Road in Boston. The approval came after 30 minutes of discussion that included questions about the eligibility of the applicant to apply and the county’s density restrictions.

According to her application, Ashley Marie Frazier applied “for a family apartment for us to live in at my mother-in-law’s, aka my husband’s mother,” Phyliss K. Frazier. The accompanying survey drawing showed the 3.3322 acre lot owned by Phyliss Frazier with her current dwelling and the proposed second dwelling for her son and daughter-in-law. A note from Phyliss Frazier approving the arrangement was also included with the application.

The BZA being a court-appointed body, applicants are sworn in before answering questions from members. In the subsequent discussion, Ashley Marie told the board she wished to locate a mobile home on a permanent foundation on the property and occupy it as a family apartment.

BZA members asked about the placement of the well and septic system and other aspects of the proposed dwelling. But it was a concern expressed by BZA member David Konick that occupied the board’s attention for much of the discussion.

”I have a technical issue about the applicant,” said Konick, who cast the lone vote against approval of the application. Questioning whether Ashley Marie Frazier was even eligible to apply, he read into the record section 170-55A of the county zoning ordinance. “An application for a special permit or special exception may be made by any property owner, owner of an easement, possessor of the right of entry under the power of eminent domain, lessee, contract purchaser or any official, department, board or bureau of any government. A contract purchaser, lessee or owner of an easement must file with the application a copy of the contract or some form of written statement which indicates the endorsement of the application by the property owner.”

“Ms. Frazier does not fit the description,” Konick said. As “the applicant before us isn’t authorized under the ordinance,” the mother-in-law-as owner of the property would have to apply. And in previous questioning, said Konick, Ashley Marie Frazier admitted that she did not have a lease on the property either, which would also have made her eligible to apply.

To further complicate the matter, the younger Frazier had indicated on her application that she was the lessor of the property. Other BZA members expressed sympathy, suggesting that she was confused by the terms “lessor” (one who rents out a property) and “lessee” (tenant).

Christopher Bird, the planning commission’s representative to the BZA, asked: “Is there something we can do to accommodate the application? I think this is a small detail that isn’t of any real importance to the sum of the application itself.” He proposed that maybe the mother-in-law could sign the application. But after more discussion, he suggested a simpler solution — that Ashley Marie say she say she does have a rental agreement, even if it’s a verbal agreement.

Before the members could vote on the application, Konick raised another objection — that the lot size did not meet the minimum size for the area. Having two dwelling units on a 3-acre lot would violate the density rules under the ordinance. He referred to code sections which describe lot sizes and density requirements in conservation and agricultural zones; conforming lot size is no less than 25 acres, according to the ordinance, and only one dwelling is permitted on a lot.

“The problem [with this application] is that it puts two dwellings on three acres,” said Konick. Approval of the application would set a “really bad precedent.” He suggested that the board condition approval on making family use of the second dwelling permanent. Under the ordinance a family apartment must be occupied by family members for the first two years. After that, it can be rented out to non-members.

Within days after the meeting, Konick issued a four-page dissent that he asked to be placed into the public record. (Excerpts of Konick’s dissent can be found online at rappnews.com by Thursday afternoon.)

Tourist home approved

The BZA also voted, 4-0, to approve Susan Hager’s special use permit application to operate a three-bedroom house as a tourist home. Konick recused himself from the discussion and the vote. Hager has owned and operated another tourist home for two years. She said that the new application was to convert the house she is currently living in. She told the board she is building her own new residence on a separate property next door.

Bird reported that the planning commission had expressed concern about whether Hager would “monitor the use and conditions of the rental, and we were assured she would,” he said.

The only condition on the approval was that Hager abide by zoning ordinance section 170-66K, which lists additional standards for tourist homes, B&Bs and boarding houses. Hager said that due to her two years of running a tourist home, she understood the conditions and standards.

Excerpts of dissent

Excerpts of David Konick’s four-page dissent to the BZA’s June 22 decision to grant a family apartment permit:

• “The first ground of dissent is the absurd finding by a 4-1 majority of the Board to overlook or deliberately disregard the painfully obvious fact that the Applicant, whose name is written in two places on the application form as ‘lessor’ is not a qualified person who can apply for a special use permit under Section 170-55 of the Ordinance.”

• “I respectfully disagree with my colleague, Mr. Bird, who stated that this was a mere technicality, of little or no legal import in the resolution of the Application. The Board has now placed itself in the peculiar position of having granted a use permit to a person who has no lawful interest in the property, and without limiting the special use permit to the term, whatever it may be, that she remains an invitee or occupant of the subject property.

“By treating this fact as an insignificant ‘technicality,’ the Board has complicated, if not completely undermined, the ability of the Zoning Administrator or other authority, to enforce the terms and conditions of the permit in the future. Worse yet, the Board has established a dangerous precedent whereby other owners of property in the resource preservation zones can easily circumvent the density and other requirements of the Zoning Ordinance set forth in Section 170-22, 170-28, Section 170-37, and Section 170-52.”

• “This nonconforming lot of 3.322 acres would not qualify for a ‘family division’ under Section 170-40 of the Ordinance, yet the Board essentially permitted those restrictions as well as the density limitations to be circumvented by permitting a second dwelling on a nonconforming, substandard lot in the Agriculture District. This was patently improper and in clear violation of the Zoning Ordinance and Comprehensive Plan.”

• “This application should have been dismissed once it became clear the Applicant was neither the property owner nor a lessee, and once it became clear the density requirements would be so flagrantly violated and that the proposed use would not be in conformity with the General Standards listed in Section 170-52 of the Zoning Ordinance.”

YouTube video courtesy of Kaitlin Struckmann/Rappahannock Record:

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