Citizen involvement works: Town Planning Commission recommends denial of special use permit

The Front Royal Planning Commission met Wednesday, Nov 18, 2020, in their regular monthly meeting. There was a larger than usual attendance at the meeting, at which Vice Chairman Joseph McFadden’s seat was empty. This may be due to his election to a seat on the Town Council, in the Nov 3 town Election.

The agenda and the minutes of the Commission’s Oct 21 Meeting were approved, and Chairman Douglas Jones opened the floor for citizen comments, an opportunity for anyone to surface a planning issue that is not on a regular meeting agenda. There were none.

Town Planning Commission, down a member. Photos: Stephen Sill

The Chairman then opened discussions on the only public hearing scheduled for this meeting, to consider a request by local contractor Richard Spiewak to combine two lots into one in the Huffman Heights Subdivision in the 300 Block of Grand Avenue. The Director of Community Development and Planning, Timothy Wilson, briefed the commission on this proposal. The builder obtained two nonconforming legal lots that were 25’ wide and 217 Ft deep and wanted them to be consolidated into one 50’ wide lot, on which he is proposing to build a home. Mr. Wilson detailed the work the planning department had done in researching the request, including the Town Ordinance covering development on legally nonconforming lots. The standard for Residential lots for single-family homes (R-1) is 75’ in width and a minimum of 10,000 SF of area. The consolidated lots would be only 50’ wide but 11,035 SF in area. Staff found that the consolidation would tend to make the property more compliant but still not completely compliant, and under the ordinance would require Town Council approval.

The department also performed a standard comparison of properties in the area under the ordinance and found that the proposed dwelling has a finished floor square footage of 1,852, which exceeds the minimum required comparative house size by 745 SF. It is larger than 5 of the 14 homes in the review area. The staff deemed that the proposed structure is also consistent with comparative homes in terms of building orientation, scale, proportion, and site layout.

Mr. Wilson explained the formula in some detail related to minimum sizes and the approvals required for use of legally nonconforming lots. He also told the commissioners that the staff had received 5 letters regarding this proposal, all opposed, as well as a petition. There were 11 signatures on the petition from citizens living in the Huffman Heights subdivision. He stated that all letters and the petition had been distributed to the commissioners for their review, and will become part of the official record of the application, to be forwarded to Town Council with the Commission’s recommendation. That also includes the supporting or opposing comments made at the commission meeting in the meeting minutes.

Derrick Green, a Grand Avenue resident, cites chapter and verse.

Chairman Jones then opened the floor for public input and a very well-prepared neighborhood set of spokespeople responded. Derrick R. Green, by day employed as a Project Manager, seemingly moonlighting as a very capable lawyer, also a resident of the nearest property to the proposed site, calmly detailed his concerns about the project – Apparent violations of the Town Zoning ordinance, the consolidation of two legally nonconforming lots into one still-nonconforming lot, and the loss of sun exposure for his own property next door. He also alleged that the prior owners of both the property he had purchased and the two lots in question had split them off and sold them separately, causing deterioration in the equity and value of his home. Several properties in that subdivision included buffer lots between the homes to preserve green space and improve privacy.

Following Mr. Green’s comments, his wife Karissa issued a heartfelt statement – “We are absolutely heartbroken that we have to stand before you today to ask you to deny this permit” – and raised the issue of drainage from their property into the two lots in question, and that building a home there could cut off that drainage. She indicated that the two lots had been sold off separately with no notice to them when they would have gladly purchased them as part of the property.

Next to speak was Ray Ruhling, a Salem Avenue resident in the same subdivision expressed his opposition to the project. The subdivision’s minimum lot width was 75 ft. His objection was not to the style or size of the proposed dwelling, but the fact that it did not belong on that lot.

Richard Spiewak, the applicant, and owner of the two lots in question spoke to the commission. Spiewak is a local Class A building contractor who has done new construction and remodels in Front Royal for more than 15 years. As a member of the community in which he works, he’s happy to see his customers when shopping around town and stands behind any work he does. He had no preknowledge regarding the lots, they had simply come up on the market and he felt they would be a good opportunity. He took account of the sizes and styles of the surrounding homes and selected a plan that he felt fit well. He reminded the commission that soil and grading would be part of any site plan, his construction would take careful account of property lines and the street, and he would make sure proper drainage would be installed. Mr. Spiewak indicated he would be happy to work with the community to resolve any issues.

Pattie McHugh next addressed the commission with her concerns about the proposed dwelling’s proximity to its neighboring home, and the potential for draining problem due to the slope of the neighboring property. She also questioned the placement of the dwelling, extending 10 feet in front of the neighboring dwelling at 327. She felt parking could be a problem for residents of the new dwelling.

Finally, Mary Wood, a lifelong Front Royal resident, observed that there was not a good reason to utilize the two lots for that purpose. Other lots below it on that street might then be built on if the precedent is set.

Once these speakers had stated their views, the chairman closed the public hearing so the commissioners could discuss the proposal.

Commissioner Darryl Merchant asked Mr. Wilson and Mr. Napier for their comments on this issue: Normally a subdivision is platted with 50 ft lots, for example, Royal Village or Warren Park. In this case, there are two issues: one is the performance standard, and the other is the consolidation of two lots into one. Is the intent here is to create a new lot? Mr. Wilson indicated that one lot was being enlarged to 50 ft width and the other eliminated. It does not create a new lot. Mr. Merchant then noted that the performance standards included grading, but there was no engineering plan in the package. Mr. Wilson responded first that the use of grading and fill is common to most lots in that area. Second, that the special use permit was necessary to move forward with a zoning permit, and the engineering plan would be part of that. The staff views this as a compatibility determination. It does not excuse the applicant from any other requirement of the zoning permit process.

Town Attorney Douglas Napier advanced a question to Mr. Wilson and the Commission: In the November 16th letter from Mr. & Mrs. Green, they point out Town Code section 175-136 states that special use permits are not transferrable to another party. He asked if Mr. Wilson knew of any zoning official opinions whether the owner of the property, who is also the owner of the special use permit, were it to be approved by the Town Council, be able to transfer it to a third party? Such a restriction could be a problem for a bank loan, as it would be a “cloud” on the title. Mr. Wilson responded that he had only recently become familiar with this part of the code and was unaware of any practice like that. The special use permit should run with the property, not the owner. Not to allow that would mean that each time a property subject to a special use permit changed hands, it would require a new application, and the town has not done that nor had he seen any other town governments require it. Each new owner is obviously subject to the terms of the special use permit originally approved.

Commissioner Merchant made a motion to recommend denial of the special use permit. Second, Commissioner Marshner.

Commissioner Gordon commented that the Town attorney had raised an interesting question, and suggested the motion could be tabled to allow the Planning Director and Town attorney to research further, Finally, he indicated he supported the applicant’s proposal so would vote against the motion.

The chairman then requested a roll call vote. Yes: Commissioner Marshner, Chairman Jones, Commissioner Merchant. No: Commissioner Gordon

A very brief applause from the room as the Chairman announced that the Commission was recommending to the Town Council that the proposed permit be denied. There was some noise while the audience cleared after the announcement and Chairman Jones waited while the room cleared.

Under New Business, Commissioner Merchant asked the status of a process for amendments to the Comprehensive plan, as well as suggesting that at the next planning commission, the commission could begin forging ahead with finalizing the Town’s Comprehensive Plan update. He also asked about the status of the new membership criteria for the 5-member Planning Commission. Mr. Wilson said the Town Council was planning to address the Planning Commission membership at its December meeting.

Commissioner Marshner asked about the application procedure for membership on the Commission. Mr. Wilson said that applications were available through the Clerk’s office.

Commissioner Gordon asked if the commission could request a legal opinion concerning the special use permit and its transferability. He could foresee potential problems with it in the future if the language of the ordinance is as it appears. Mr. Wilson agreed to work with the Town attorney to discuss and bring back a legal opinion to the Commission.

There being no Commission member reports, the Chairman called for a motion to adjourn. The vote was unanimous.