City of Frederick Zoning Board of Appeals Meeting - June 25, 2013

The City of Frederick Zoning Board of Appeals held a meeting on June 25, 2013, to approve minutes, elect officers, grant continuances, and decide on a variance application and an administrative appeal. The board also received public comments on the appeal process.

Consent Calendar

• Approved the minutes of the April 23, 2013 meeting as written.

Officer Elections

• Re-elected the current Chairman for the coming year (motion by Mr. Patchant, seconded by Ms. Colby, 4 votes in favor).
• Elected Ms. Colby as Vice Chair (motion by Mr. Patchant, seconded by Mr. Kennedy, 4 votes in favor).
• Elected Mr. Patchant as Secretary (motion by Ms. Colby, seconded by Mr. Kennedy, 4 votes in favor).

Continuances

• Case CBA 13-304 CU (conditional use for family meal at 880 Northeast Street) continued to July 23, 2013 due to improper public notice.
• Case ZBA 13-301 CU (conditional use for vote at 228 North Market Street) continued to July 23, 2013 due to improper public notice.

Discussion Items

Variance at 201 Magnolia Avenue (CBA 13-337 V)

• Applicant Lee Lushbaum requested two variances from Section 405 of the Land Management Code to reduce the required street setbacks on a corner lot at Magnolia Avenue and West 2nd Street. The property is an irregularly shaped corner lot with three frontages, and the existing house was built in 1940. The variances would allow a 626-square-foot addition and a two-car garage.
• Staff recommended approval, finding that the lot's size and shape create a practical difficulty, and the variances would not be contrary to public interest.
• A neighbor (adjacent property owner) asked about the zero lot line and potential removal of trees. The applicant clarified the zero lot line applies only at two points adjacent to city right-of-way, and the house will remain about 35 feet from the street.
• The board approved the variances (4-0), with a condition that the applicant had received approval from the Historic Preservation Commission for demolition of existing structure portions.

Appeal of Zoning Administrator Decision at 329 East 2nd Street (ZBA 13-347A)

• The appellant (Chapin Family LLC, represented by Ann Rollins) sought to reverse the zoning administrator's determination that the proposed "Exotic Lumber" business should be classified as "building supplies and lumber" (not permitted in the DB district) rather than "retail sales not otherwise listed" (permitted). The business sells exotic and domestic hardwoods to hobbyists, woodworkers, and artists, not to contractors or large-scale builders.
• Staff defended the zoning administrator's decision, arguing that the classification matrix prefers specific over general categories, and the business sells lumber, which falls under building supplies.
• The appellant argued that the business is a specialty retail store with low traffic, no outdoor storage, and a different clientele, and thus should be classified under the catch-all category "retail sales not otherwise listed."
• The board discussed the four criteria for appeal and debated whether the zoning administrator's decision was arbitrary or capricious. Ultimately, the board voted 4-0 to reverse the determination, reclassifying the use as "retail sales not otherwise listed." The board found that the zoning administrator had not properly interpreted the code given the unique nature of the business.

Public Comments & Testimony

• At the conclusion of the appeal case, a resident from 328 East 3rd Street expressed frustration that the public was not given an opportunity to speak during the appeal process, despite signs and notices being posted. The resident argued that the process was unfair because the applicant was allowed to testify while residents were not.
• Another resident, John Daniels from 335 East 3rd Street, echoed the concern and suggested that if the board was conducting an administrative review, it should not accept testimony from anyone, including the applicant. He also expressed concern that the classification of the business as "retail" could allow more intensive uses in the future without public input.
• The Chairman acknowledged the frustration and noted that the board is bound by the Land Management Code and a prior circuit court ruling that prohibits taking public testimony in such appeals. The board encouraged the residents to raise their concerns with the Mayor and Board of Aldermen.

Key Outcomes

• The board approved the minutes of April 23, 2013.
• Officers were elected for the coming year: Chairman (re-elected), Vice Chair (Jenny Colby), Secretary (Brian Patchant).
• Two conditional use cases were continued to July 23, 2013.
• Variance at 201 Magnolia Avenue (CBA 13-337 V) granted with conditions.
• Appeal at 329 East 2nd Street (ZBA 13-347A) reversed; the use is reclassified as "retail sales not otherwise listed."
• The board discussed drafting a letter to the Mayor and Board of Aldermen regarding enforcement and standards for restaurants with entertainment, following a recent article.