ATTACHMENT 1 

ORDINANCE 

A ZONING ORDINANCE TEXT AMENDMENT TO SECTION 13-406 TO GRANT EXEMPTIONS TO MINIMUM LOT WIDTH, MINIMUM LOT FRONTAGE, MINIMUM SETBACK REQUIREMENTS, AND CERTAIN RESIDENTIAL HEIGHT REQUIREMENTS, TO DELETE CERTAIN VARIANCE AUTHORITY DELEGATED TO THE ZONING ADMINISTRATOR AND THE BOARD OF ZONING APPEALS, AND TO AMEND SECTIONS 2-413, 2-505, AND 3-324 FOR CONSTANCY WITH THESE CHANGES

  WHEREAS, on December 7, 2005, the Planning Commission initiated this text amendment; and

WHEREAS, on January 26, 2006, the Planning Commission held a public hearing on this issue and forwarded the proposed text amendment to the Board of Supervisors recommending its adoption; and

WHEREAS, on March 9, 2006, the Fauquier County Board of Supervisors held a public hearing on this amendment; and

             WHEREAS, the adoption of this text amendment would be in the spirit of the Zoning Ordinance, consistent with public convenience, general welfare, and good zoning practices, consistent with the adopted Comprehensive Plan, and is in the best interest of the citizens of Fauquier County; now, therefore, be it

ORDAINED by the Fauquier County Board of Supervisors this 13^th day of April 2006, That Sections 13-406, 2-413, 2-505, and 3-324  of the Fauquier County Zoning Ordinance be, and are hereby, amended as follows:

13-406 Variance of Minimum Yard Requirements Based on Error in
Location of Buildings 

1. Notwithstanding the other provisions of this Part, the Zoning
Administrator and the BZA shall have the authority, as qualified
below, to grant a variance to the minimum yard requirements in the
case of any building existing or partially constructed which did not
comply with such requirements applicable at the time such building
was erected. Such a variance may be granted if and only if: 

            A. It is established that such noncompliance was through no fault of
the applicant or was the result of an error in the location of the
building subsequent to the issuance of the Building Permit, and
 

            B. Such variance will not impair the purpose and intent of this
Ordinance, and 

            C. It will not be detrimental to the use and enjoyment of other
property in the immediate vicinity, and 

            D. It will not create an unsafe condition with respect to other
property and/or public streets, and 

            E. To force compliance with the minimum yard requirements would
cause unreasonable hardship upon the owner. 

2. Such a variance may be granted: 

            A. By the Zoning Administrator if the error does not exceed ten
(10) percent of the measurement that is involved. 

            B. By the BZA if the error is greater than ten (10) percent of the
measurement that is involved. 

3. In granting such a variance under the provisions of this Section, the
Zoning Administrator and the BZA may prescribe such conditions as
deemed advisable to assure compliance with the intent of this Part. 

4. Upon the granting of a variance for a particular building in
accordance with the provisions of this Section, the same shall be
deemed to be a lawful building. 

5. The Zoning Administrator or the BZA shall have no power to vary
the application of any of the limitations specified in this Ordinance. 

13-406  Authority of Zoning Administrator to Grant Exemptions

1.      The Zoning Administrator is authorized to grant a modification from any provision contained in the Zoning Ordinance with respect to minimum lot width, minimum lot frontage, minimum setback requirements, and, in RA and RC Districts, height requirements for single family houses up to ten feet, provided extra living space is not added, if the Zoning Administrator finds in writing that: (a) the strict application of the ordinance would produce undue hardship; (b) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and (c) the authorization of the modification will not be of substantial detriment to adjacent property and the character of the zoning district will not be changed by the granting of the modification.

2.      Prior to the granting of a modification, the Zoning Administrator shall give, or require the applicant to give, all adjoining property owners written notice of the request for modification, and an opportunity to respond to the request within 21 days of the date of the notice. The Zoning Administrator shall make a decision on the application for modification and issue a written decision, within 90 days of a request for a decision or determination on zoning matters within the scope of his authority unless the requester has agreed to a longer period, with a copy provided to the applicant and any adjoining landowner who responded in writing to the notice sent pursuant to this subsection.

3.      The decision of the Zoning Administrator shall constitute a decision within the purview of Virginia Code § 15.2-2311, and may be appealed to the Board of Zoning Appeals.

2-413 Reduction in Front Yard Requirements

With respect to the one (1) or more lots lying between other lots (a) in the same block, and (b) within a distance of 600 feet on each side, and (c) there are existing buildings on the other lots with front yards less than the front yard required for the district, the BZA Zoning Administrator may grant a variance exemption under the provisions procedures of Part 4 of Article 13 authorizing the erection of buildings on such intervening lots with such front yard(s) as will, in the opinion of the BZA Zoning Administrator produce the most satisfactory overall design of the development and the most appropriate manner of use of the land that is involved; provided that no front yard shall be authorized hereunder that is less than the front yard of the nearest of such existing buildings.

2-505 Use Limitations on Corner Lots

1. On every corner lot within the triangle formed by the street lines of such lot and line drawn between points on such lines which are thirty (30) feet from the intersection thereof, there shall be no structure or planting of such nature and dimensions as to obstruct lateral vision other than a point, column or trunk or tree, (but not branches or foliage) which is not greater than one (1) foot in cross section or diameter. Such lateral vision shall be maintained between two (2) horizontal planes, one of which is three and one-half (3 1/2) feet, and the other ten (10) feet above the average elevation of the existing surface of either street at the center line thereof.
    

2. Since the purpose of this provision is to promote public safety by preserving reasonable sight distance for vehicular traffic at street intersections, the BZA Zoning Administrator may vary the specified requirements in accordance with the provisions procedures of Part 4 of Article 13 in those instances where structures or plantings between the two (2) horizontal planes do not in fact interfere with sight distance.

ATTACHMENT 2

§ 15.2-2286. Permitted provisions in zoning ordinances; amendments; applicant to pay delinquent taxes.

A. A zoning ordinance may include, among other things, reasonable regulations and provisions as to any or all of the following matters:

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4. For the administration and enforcement of the ordinance including the appointment or designation of a zoning administrator who may also hold another office in the locality. The zoning administrator shall have all necessary authority on behalf of the governing body to administer and enforce the zoning ordinance. His authority shall include (i) ordering in writing the remedying of any condition found in violation of the ordinance; (ii) insuring compliance with the ordinance, bringing legal action, including injunction, abatement, or other appropriate action or proceeding subject to appeal pursuant to § 15.2-2311; and (iii) in specific cases, making findings of fact and, with concurrence of the attorney for the governing body, conclusions of law regarding determinations of rights accruing under § 15.2-2307. Notwithstanding the provisions of § 15.2-2311, a zoning ordinance may prescribe an appeal period of less than 30 days, but not less than 10 days, for a notice of violation involving temporary or seasonal commercial uses, parking of commercial trucks in residential zoning districts, or similar short-term, recurring violations.

Where provided by ordinance, the zoning administrator may be authorized to grant a modification from any provision contained in the zoning ordinance with respect to physical requirements on a lot or parcel of land, including but not limited to size, height, location or features of or related to any building, structure, or improvements, if the administrator finds in writing that: (i) the strict application of the ordinance would produce undue hardship; (ii) such hardship is not shared generally by other properties in the same zoning district and the same vicinity; and (iii) the authorization of the modification will not be of substantial detriment to adjacent property and the character of the zoning district will not be changed by the granting of the modification. Prior to the granting of a modification, the zoning administrator shall give, or require the applicant to give, all adjoining property owners written notice of the request for modification, and an opportunity to respond to the request within 21 days of the date of the notice. The zoning administrator shall make a decision on the application for modification and issue a written decision with a copy provided to the applicant and any adjoining landowner who responded in writing to the notice sent pursuant to this paragraph. The decision of the zoning administrator shall constitute a decision within the purview of § 15.2-2311, and may be appealed to the board of zoning appeals as provided by that section. Decisions of the board of zoning appeals may be appealed to the circuit court as provided by § 15.2-2314.

ATTACHMENT 3

Comment

            It has come to staff’s attention that a number of homes exceed the 35 foot height requirement.  This problem principally has come about because of builders’ failure to account for the height of the building which takes into consideration exposed walls at walk-out basements; under the Zoning ordinance, height is measured from the lowest point of the exposed wall to the midpoint of the roof.  This problem should be avoided in the future because the Building Inspector’s Office now requires submission of elevations as part of the building permit review process.

            Nevertheless, a number of violations now exist. Should these few homes ever return for review by Community Development (i.e. alterations and repairs), the only way to make them legal would be to change the grade at the walk-out basement  by adding fill; this is not a satisfying fix for anyone concerned.

            The Board of Supervisors may want to consider extending the zoning administrator’s authority to grant height exemptions for all single family residences.  The Planning Commission restricted such authority to single family residences in RA and RC Districts. By doing this, the County would have more flexibility is dealing with these few violations. 

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