Thu04242014

Last updateTue, 04 Nov 2014 9pm

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BZA denies appeal on single family home in Resort district

Single-family dwelling restrictions challenged separately by council and property owner bear a striking resemblance

On Nov. 19, Colonial Beach property owner Sharron Fortier appealed the decision of Colonial Beach Building and Zoning Director Gary Mitchell, who had determined that, according to Article 7 of the zoning ordinance, her property, located in the town’s resort commercial district, could not be used as a single-family dwelling. Coincidentally, in September of this year, amendments to Article 7 were put on hold at the town’s council level by now-former council member Tim Curtin, and three other council members. The changes proposed to Article 7 did not affect the section of the ordinance that covers the disallowance of single-family dwellings within the Commercial Resort District.

At the Nov. 14 regular town council meeting, the council unanimously passed Ordinance 635, approving amendments to Article 7 of the building and zoning ordinance, after it had been tabled back in September.

Tim Curtin had been the driving force behind the motion to table the matter at the September meeting, claiming that restrictions in the ordinance would limit uses such as single-family homes. Councilmen Gary Seeber and Tommy Edwards and Mayor Mike Ham had challenged the motion to table it, but the remaining council members Jim Chiarello, Linda Brubaker, Wanda Goforth and Tim Curtin successfully voted to table the matter.

Article 7 lists and describes which properties are allowed without a permit in the resort commercial district. The reason for the amendment is routine cleanup work being done by the town’s planning commission and Building and Zoning Director Gary Mitchell. The amendments are designed to keep the town’s zoning ordinances consistent with State Code, and to streamline the language, making the ordinances easier for the average citizen to interpret and understand.

Curtin, when heading up the town’s Economic Development Committee and having participated largely in the process of updating the town’s Comprehensive Plan, felt that limiting the properties was “regulatory overreach.” Curtin was concerned for people wanting to continue to utilize their property in the resort commercial district for homes being denied that opportunity.

Although the ordinance is designed to eventually reduce private homes and utilize the space for more profitable ventures, the ordinance does allow structures already in use as residential properties to be grandfathered-in.

Councilman Gary Seeber clarified with Mitchell at the September meeting that if a homeowner sold his house, the next person would be able to continue to use it as a house. However, if the property is converted to a business or damaged more than 50% of the market value, the owner cannot rebuild and use it in a non-conforming way, for example, as a residential family home, Mitchell told the council.

Curtin asked about properties that may be vacant and are not being used in a conforming manner, “What happens to them?”

Town Attorney Andrea Erard said that after a certain period of time, property owners would lose the ability to utilize the building for residential use.

At the Nov. 14 meeting, when the matter came up again, none of the council members who previously voted to table the matter had any opposition to, or discussion on the matter, and Tim Curtin was absent, having resigned his seat earlier in the day.

MORE ON THE APPEAL
At the Nov. 19 meeting, the town’s Board of Zoning Appeals (BZA) met to hear Fortier’s appeal, which involved the property located at 125 Wilder Ave., known as the Vernon Inn and located within the resort commercial zoning district.
According to town staff, a business license was taken out by the owner to operate the house as a boarding house. That license expired in 2009.

In 2010, it is contended that the owner rented the house as a single-family dwelling. Recently, Fortier acquired a new business license for the operation of a boarding house.

In early August of this year, the owner evicted the current tenant, who then called building and zoning to report violations.
Upon inspection of the property on Aug. 29, Mitchell determined that the property was used interchangeably as a single-family dwelling and a boarding house, and that according to code; the structure is a boarding house and cannot be used as a residential property.

Theresa Davis, Colonial Beach Code Enforcement Official, notified the property owner of the violation via a meeting with the property owner on Sept. 9. On Sept. 11, Davis issued a notice of violation in writing and posted the property; unsafe and unfit.

On Sept. 23, the property owner filed with the BZA for an appeal. After the building and zoning staff briefed the board on the facts of the matter, the appellant, Sharron Fortier, took the stand.

Ms. Fortier stated that her family has owned the property for about 40 years, and her father passed away in 2010. After her father’s death, Fortier’s father’s caregiver asked to remain living in the house. Fortier said that the woman had no place to go, and although she did not have a business license, Fortier allowed the woman to stay. During the last year, the former caregiver moved her daughter and son into the house. When Fortier discovered this, she said she tried to charge rent for the children. Fortier said the former caregiver argued that since she did not have a license, Fortier could not charge her adult children rent. Fortier explained that this is why she obtained a license. Fortier said, “I hung up, and I told her now that I have a license, I can collect rent for your children, and I gave her an eviction notice.” Fortier stated that the former caregiver called in the code compliance officer in retaliation, and alleges the caregiver planted “some things to make it look a lot worse than it was.”

Fortier added that there is another home behind her property that is in the same district being used as a single-family dwelling.

Ann-Neil Cosby, Attorney for the BZA offered some direction to the board on how to proceed. She stated that according to State Code, the word of the building and zoning director is presumed to be correct, and it was up to the appellant to prove that the director’s determination was incorrect.

The attorney also stated that the BZA must determine if single-family dwellings are currently allowed in the area, and if the house is a legal non-conforming use. This house, she said, would have to have been used from 1974 to the present, as only a single-family dwelling. If the property is determined to have been used for any other purpose for at least two years, the house would not be legally allowed to be used as a single-family dwelling.

The only member of the public to speak was Bob Swink, a Colonial Beach Real Estate agent, who stated that his firm has the property under contract for sale. He tried to appeal to the board, saying that there is a client interested in the property as a possible residential property. Swank said he is concerned that the property will become stagnant, and reported that the original owner used the property as a non-conforming single-family dwelling for many years.
Swink asked the BZA what the appellant could do to solve the problem.

Dr. Frank Mansfield, BZA Chairman, stated that he did not see any indication that the director made any errors in judgment. Other members agreed, commenting that the appellant had not proven otherwise. BZA member Susan Windland made a motion, and the BZA voted unanimously to uphold the decision of the director and deny the appeal.


 —Linda Farneth

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