Board of Zoning Appeals

AGENDA City of Williamsburg Board of Zoning Appeals Tuesday, March 1, 2022 A meeting of the Board of Zoning Appeals will be held Tuesday, March 1, 2022 in the Stryker Center, 412 N. Boundary Street commencing at 4:00 p.m. Page 1. CALL TO ORDER 2. ROLL CALL 3. MATTER OF SPECIAL PRIVILEGE A. Adoption of Sec. 2-34 Electronic Participation in meetings. 2-3 B. Approval of Electronic Participation of Robert Lane 4. ELECTION OF OFFICERS 5. OPEN FORUM 6. PUBLIC HEARINGS A. BZA#22-001: Amy Lockwood - Special Exception Request – 919 N. 4 - 13 Henry Street 7. UNFINISHED BUSINESS 8. NEW BUSINESS A. Meeting Minutes October 5, 2021 14 - 20 B. BZA Bylaws 21 - 26 9. ADJOURNMENT Please contact the Planning Department at (757) 220-6130 if you have any questions regarding any proposal or if you would like a copy of the plans. Otherwise, comments may be made at the meeting to the Board of Zoning Appeals. Face masks are required in all public buildings owned by the City of Williamsburg. Sec. 2-34. Electronic participation in meetings. (a) As provided in Code of Virginia, § 2.2-3708.2, a member of city council or a member of a board, commission, or committee of the city council, may participate off-site by electronic means in any regular of special meeting of city council, or such board, commission or committee of city council, in the following instances and subject to the following requirements and limitations: (1) The member must notify the mayor, or vice-mayor in case the mayor is unavailable, or in the case of a board, commission or committee, the committee chair, or the vice-chair in the event the chair is unavailable, on or before the day of a meeting, subject to subsection (b)(5) below, that such member is unable to attend the meeting due to an emergency or personal matter and identify with specificity the nature of the emergency or personal matter; or (2) If a member notifies the mayor, or vice-mayor in the case that the mayor is unavailable, or in the case of a board, commission or committee, the committee chair, or vice-chair in the event that the chair is unavailable, on or before the day of a meeting, subject to subsection (b)(5) below, that such member is unable to attend a meeting due to a temporary or permanent disability or other medical condition that prevents the member's physical attendance and the council, board, commission or committee meeting, records this fact and the remote location from which the member participated in its minutes. (3) The council, board, commission, or committee, must: (i) approve such member's participation by a majority vote of the members physically present at the primary meeting location and record in its minutes the specific nature of the emergency or personal matter, and the remote location from which the absent member participated. (4) If council disapproves the member's participation from a remote location because such participation would violate the policy adopted pursuant to subsection (b) below, such disapproval shall be recorded in the minutes with specificity. (5) Such participation by the member shall be limited to two meetings each calendar year. (b) Electronic participation by a member of council, or a board, commission or committee as authorized under subsection (a) shall be only under the following conditions which shall be applied strictly and uniformly, without exception, to all members and without regard to the identity of the member requesting remote participation or the matters that will be considered or voted on at the meeting: (1) The board, commission or committee has adopted the electronic meeting policy contained in this section; (2) In case of absence due to an emergency or personal matter, the requesting council member must have given a sufficiently detailed description of the emergency or personal matter giving rise to the electronic participation request to enable the members present at the primary meeting location to reasonably determine whether or not to honor such request; (3) In case of absence due to temporary or permanent disability or other medical condition, the member who requests electronic participation must describe the condition giving rise to the request sufficiently to enable a reasonable person to understand the legitimacy of the request; (4) A quorum of council, or board, commission or committee, must be physically assembled at the primary meeting location; and (5) The board, commission or committee meets in a room which is physically equipped to host electronic participation. No request for a member to participate remotely shall be approved if such request will require a change in the location of the meeting after notice of the meeting has been posted; and Created: 2022-01-19 16:43:45 [EST] (Supp. No. 34, Update 2) Page 1 of 2 Page 2 of 26  (6) The voice of the remote participant to be of sufficient volume and clarity to be heard by all persons at the primary meeting location. The remote location from which the member is participating need not be open to the public. (Ord. No. 19-16, 8-5-19) Created: 2022-01-19 16:43:45 [EST] (Supp. No. 34, Update 2) Page 2 of 2 Page 3 of 26 BZA#22-001: Lockwood Page 1 TO: Board of Zoning Appeals DATE: February 23, 2022 SUBJECT: BZA#22-001: Amy Lockwood Special Exception Request – 919 N. Henry Street This is a request of Amy Lockwood for a special exception from Section 21-896 of the Zoning Ordinance to enlarge an existing legally nonconforming dwelling that does not meet current yard regulations. The existing dwelling is located 29 feet from the front property line, instead of 35 feet which is the current setback requirement. The applicant proposes to enlarge the dwelling the same distance from the front and side property lines as the existing dwelling. The proposed addition will be located 29 feet from the front property line instead of 35 feet. The property is located at 919 N. Henry Street, Williamsburg Tax Map Number 405-02-00-919, and is zoned, Single-Family Dwelling District RS-2. Section 21-167(1) front yard states the following: a. There shall be a front yard of not less than 35 feet. Section 21-896 of the Zoning Ordinance provides some relief to existing buildings by including a special exception for their enlargement if the Board of Zoning Appeals grants approval. Section 21-896 of the Zoning Ordinance states, "The Board of Zoning Appeals may approve, as a special exception in accordance with Section 21-97(f), the enlargement of an existing legally nonconforming building that does not meet the yard regulations of the zoning district in which it is located. The yards provided for the addition shall not be less than the adjacent nonconforming yards." The applicant notes: • The home was transported in from Colonial Williamsburg in 1930 was placed 29 feet from the road front. • The primary reason for the addition is to provide more space inside the home and improve the outside look of the home. • There are no plans to encroach any further toward the road, only to extend the noncomplying house further along the front of the road. Page 4 of 26 BZA#22-001: Lockwood Page 2 In reaching a decision on the authorization of a special exception, the Board of Zoning appeals shall consider, where applicable, the following: (a) Stated intent of the zoning district in which the property is located: This area is zoned Single-Family Dwelling District RS-2. The statement of intent for this district is as follows: "This district is established as a single-family residential area with a low population density. The regulations for this district are designed to stabilize and protect the essential characteristics of the land and to promote and encourage a suitable environment for family life. To these ends, development is limited to a relatively low density and permitted uses are limited basically to providing homes for the residents. Certain additional uses that may be compatible with single-family neighborhoods, such as churches, schools, and daycare centers, may be allowed with the issuance of special permits”. (b) Uses in the area immediately surrounding the property in question; Adjacent lots on all sides are zoned Single-Family Dwelling District RS-2. (c) Amount of traffic to be generated; (d) Number of people to be employed; and (e) Hardship that would result from the denial of the special exception. MAJOR QUESTIONS BEFORE THE BOARD Section 21-97(f)(2) states that a special exception shall not be approved by the Board of Zoning Appeals unless it is found that: (a) It is designated, constructed and operated to adequately safeguard the health, safety, and welfare of the occupants of the adjoining and surrounding property; (b) It does not unreasonably impair an adequate supply of light and air to adjacent property; (c) It does not increase public danger from fire or otherwise unreasonably restrict public safety; (d) It does not impair the established property values in surrounding areas. The Board may impose such conditions relating to the use provided for in the authorized special exceptions for which a permit is granted as it deems necessary in the public interest and may require a guarantee or bond to ensure that the conditions imposed are being and will be continued to be complied with. Page 5 of 26 BZA#22-001: Lockwood Page 3 ANALYSIS This property is in the Single-Family Dwelling District RS-2, which requires a 35-foot front yard. The dwelling is legally nonconforming and is located 29 from the front property line. The proposed addition will be located no closer to North Henry Street than the current dwelling. The applicant’s request is to extend the foundation of the home outward to meet the current front and side building line. No further encroachment will occur. Proposed addition in red. STAFF RECOMMENDATION Staff recommends approval of the special exception request for BZA#22-001 based on the criteria contained in Section 21-97(f) of the Zoning Ordinance and the above analysis conditioned upon the proposed addition does not encroach any closer to the front and side property lines than the existing dwelling. A foundation survey will be required upon completion of the project. Heather I. Markle Zoning Administrator Page 6 of 26  BOARD OF ZONING APPEALS BZA / WILLIAMSBURGPLANNING DEPARTMENT DATE 401 LAFAYETTESTREET WILLIAMSBURG,VIRGINIA23185-3617 (757) 220-6130 FAX (757) 220-6130 ADDRESS: CI\Cl,_j”U. I6 l’ , l/VI IIZIAIII.-ZIA’/I&..‘)‘// 2;/9905M 73 7~ 5’/O ‘S’°/‘-/_5,./ PHONE/FAX NUMBER/E—MA|L: APPLICANT/REPRESENTATIVE: It/ij ADDRESS“ PHONE/FAX NUMBERS/E-MAIL: LOCATION OF THE REQUEST: Mm 37/ ATTACH PLAT OR DETAILED DRAWING OF PROPERTY SHOWING EXISTING STRUCTURES.PROPOSED STRUCTURES, SET BACK LINES AND ENCROACHMENTS. THE FOLLOWING REQUEST IS MADE TO THE BOARD OF ZONING APPEALS FOR: [ ] AN APPEAL TO AN INTERPRETATION OF THE ZONING ORDINANCE, ZONING MAP, OR AN APPEAL OF AN ADMINISTRATIVEDECISION. Provide narrative statements describing the nature and purpose of the appeal and specifying the action requested of the Board of Zoning Appeals. [ ] A VARIANCE RELATING TO Provide narrative statements demonstrating that the requested variance meets each of the following tests: 1. The property was acquired in good faith. 2. Narrowness, shallowness, topographic conditions, size of the property or shape of the property at the time of the effective date of the Zoning Ordinance or use/development of the property immediately adjacent creates a hardship. 3. The strict application of the terms of the ordinance would effectively prohibit or unreasonably restrict the use of the property. 4. The above described hardship does not result from the actions of the owner(s). 5. The degree of variance requested is the minimum needed to remove the hardship. if not, why is more needed? 6. Granting the variance would not adversely impact adjacent properties. A SPECIAL EXCEPTION FOR as Y\ Q\ ’ 3 /mi- Provide narrative statements demonstrating that the requested special exception meets each of the cfc hr-‘I c~ following requirements: ' 1. It is designed, constructed and operated to adequately safeguard the health, safety and welfare of the a47 wJv 5.« occupants of the adjoining and surrounding property. . It does not unreasonably impair an adequate supply of light and air to adjacent property. It does not increase public danger from fire or othen/vise unreasonably restrict public safety. €,r. It does not impair the established property values in surrounding areas. - Initials my :‘>.°°'° Page 7 of 26  BZA # ?r92«C7DI I/\Ne, respectfully request that a determination be made by the Board of Zoning Appeals for the above-noted request which is tr to th st of my/our knowledge and belief. I"9‘S: 1 2.2 Date uiuimm I117”/z, \~\“‘3:\\:\§.‘I..’f’.- t It0-;m°~w'--.9 ~z~ -O I ’a''-.?n’2 ammo .° ‘' 5 cé';5IL»/ 20227 E: g;3H8E§$ :5 I Notary My Commission xpires ”-«xx:--‘.’:° ~‘° FOR OFFICE use ONLY 4/,,f9z:<,',';-'44‘-‘-5 Im-‘I‘“\\\\\ //,,”"¥' -‘-"-§"\,\<»\\\~“‘ TAX MAP NUMBER: I-I109/0’L'DD -51101 ZONING: Q,";"L DATE OF PUBLIC HEARING: '7)’ I 93- ' NOTICES MAILED: (SEE ATTACHED SHEET FOR PERSONS NOTIFIED) DECISION: THE DECISION OF THE BOARD OF ZONING APPEALS MAY BE APPEALED TO THE CIRCUIT COURT WITHIN30 DAYS AFTER THE FINALDECISION OF THE BOARD. ZONING ADMINISTRATOR DATE March, 2007 [FOFIMS\BZAAPPLICATION FORM] Page 8 of 26  1-25-22 To the board of zoning appeals, “This is a request for a special exception on the front yard setback requirement for an existing nonconforming lot. The intention is to enclose the front porch and build a second floor above it. The addition would closely meet the roofline of the existing rear of the home. The proposed addition would extend outward towards the side yard approximately 11 feet. Under the current code, the front yard setback requirement forthis particular noncomplying lot is 35 feet. The home which was transported in from Colonial Williamsburg in 1930 was placed 29 feet from the road front. There are no plans to encroach any further toward the road, only to extend the noncomplying house further ALONG the front of the road. in an effort to provide more space inside the home and improve the outside look ofthe home, I am requesting a special exception to permit the enclosure of the porch to closely meet the parameters of the existing structure next to it. There is no doubt this would be a benefit to the entire neighborhood aesthetically. Thank you for your consideration, Amy Lockwood As is picture of 919 N Henry: Page 9 of 26  NORTHHENRYSTREETVAR R/w I .3 .3 if‘ :.=. 3. .. . .um.»IIJ1M_Ml/R‘-- . mamm. .rruua , » wasaw-Jae-ow '4”{':’_‘_‘____._V - N - . 1Hl:"!!TQ(J£;wN.('0blPANY52s1.:mu;v ‘, , __ .,. ...._............ ...4..... 7 ' 1 I0 ‘?ll amiwp-aroooxun 0110! I31. V66! -351! W IEEIH '2 ‘us: $01 In '1 «mama I102 SIT! Iumuu ?alldald GUM In KIM-wrest _ IAZIDIAJI CIIDIIJIG soon mil: razors uwmn mu nofact» zuvu -mua-mnmono mm 3?: 0 a.m.r9.us E as 88 Z€€’ZI Page 10 of 26  919 N HENRY ST P AR Parcel no:3116.010.185 Account No:948 Sign District:RES ARE District:N/A Middle Sc:hool:BMS Grade School:MWES High School: LHS Z_9.<_>r_v13_g - -- View after enclosure: 919 N HENRY ST PRQPERTYCARD Parcel no:3116.010.185 919 Account No:948 Sign District:RES ARB Di5trict:N/A Middle Schoo|:BMS Grade School:MWES High School: LHS See Red Line above: zoomto This is the location of the porch enclosure. As is picture of 919 N Henry: S; N Henry Page 11 of 26 As is picture of 919 N Henry Current First Floor Layout Below Page 12 of 26  3713” 11'3" KITCHEN LIVING I I ROOM 11’ : I Open Porch Bedroom I I I 12I9II 24,6” Red dotted line represents the area to be enclosed. PROPOSED First Floor Layout Below Kitchen Kitchen Expansion area with porch enclosure First Floor Porch added square footage: Page 13 of 26  MINUTES City of Williamsburg Board of Zoning Appeals October 5, 2021 A meeting of the Board of Zoning Appeals was held on October 5, 2021, at 4:00 p.m. in the Stryker Center, 412 N. Boundary Street. CALL TO ORDER ROLL CALL The following members were present: Ernest (Ray) Warner, Jr., Michael Jallo, Melinda Morgan, and Robert Lane Staff Attending: City Attorney Christine Shelton, Zoning Administrator Heather Markle, and Planning Clerk Heather Moore OPEN FORUM Chair Warner opened the Open Forum portion of the meeting for comments on any topic. No one requested to speak; Chair Warner closed the open Forum. PUBLIC HEARINGS A. BZA#21-006: Request of Midas, Inc. (Mr. Demetrios Florakis) for an appeal of the Zoning Administrators determination, dated August 6, 2021, of Section 21- 255.1.1 of the Zoning Ordinance. The Zoning Administrator has determined that the property owner is in violation of converting a single-family dwelling into a duplex. The property is located at 104 Westover Ave., Williamsburg Tax Map Number 434-01-05-023A,24 and is zoned, LB-2 Limited Business Neighborhood District. The Board was able to visit the site individually before the meeting. Ms. Markle presented BZA#21-006 to the Board. Her memo is as follows: "The request of Midas, Inc. (Demetrios Florakis) for an appeal of the Zoning Administrators determination, dated August 6, 2021, of Section 21-255.1.1 of the Zoning Ordinance. The Zoning Administrator has determined the property violates the Zoning Ordinance for the conversion of a single-family dwelling into a duplex. The property is located at 104 Westover Ave., Williamsburg Tax Map Number 434-01-05-023A,24 and is zoned, LB-2 Limited Business Neighborhood District. Page 14 of 26 City records indicate that 104 Westover Avenue has been used as a single- family dwelling. The previous owner used the property as his primary residence with an accessory use as a hair salon. The property was sold to Midas, Inc. in May of 2021. The new owner intended to use the property as a rental and scheduled the required rental inspection. The rental inspector noted all commercial use as a hair salon was removed, and two kitchens were present. A notice was sent to Midas, Inc. on August 6, 2021, stating the property owner is in violation of converting a single-family dwelling into a duplex. Mr. Florakis provided a letter dated August 10, 2021, stating his opinion that the property had been a duplex previously and he intends to use the property for three rental units. On September 4, 2021, Mr. Florakis filed an appeal to the determination dated August 6, 2021. The appeal states that “the duplex dwelling and accessory use are legally nonconforming because the use was in existence prior to the City’s Zoning Ordinance and has been continuously utilized and maintained as such to the present day.” Having reviewed the existing records, it appears the property has not been zoned for a duplex residential use since the adoption of the Zoning Ordinance on July 1, 1966. There are no records indicating that the City ever approved a duplex, nor do City records indicate the property has continuously been used as a duplex since July 1, 1966, which is necessary to demonstrate the existence of a legal nonconforming use. Section 21-891(a)5 states: “If any such nonconforming use of land and/or building ceases for any reason for a period of more than 24 consecutive calendar months any subsequent use of such land and/or building shall conform to the regulations specified by this chapter for the district in which such land and/or building is located.” Evidence provided by the applicant in the appeal does not demonstrate a continued use as a duplex without interruption for a period of more than 24 consecutive calendar months dating back to 1966. The applicant has provided a 1992 student newspaper article with a directory listing. The applicant has not provided previous leases, tax returns, sworn affidavits, or rental ledgers to demonstrate a nonconforming use. The burden of proof is on the applicant to demonstrate a nonconforming use. The property is not legally nonconforming. A special exception for the continued use of a dwelling as a duplex dwelling has not been granted by the BZA to any owner of 104 Westover Avenue under Sec. 21-623. This regulation was adopted in 2017 to allow duplex dwellings existing in residential districts prior to January 1, 2004, to continue to be used as duplex dwellings notwithstanding the owner’s ability to demonstrate the existence of a legal Board of Zoning Appeals October 5, 2021 Page 2 of 7 Page 15 of 26 nonconforming use, so long as the owner meeting the criteria contained in the ordinance. It does not allow a property transferred after September 1, 2017, to qualify for the special exception. The appeal also addresses the three utility meters located on the property. Utility meters are installed by private electric companies and do not reflect approved zoning or use of a parcel. The property is in a residential rental inspection district. The City of Williamsburg implemented a Rental Inspection Program in 2004 that requires interior and exterior inspections of rental units in four housing conservation districts. The program requires the inspection of rental properties in these four districts when a unit is offered for rent and every four years after the initial inspection. This property at 104 Westover Avenue has not ever been a part of the City’s rental inspection program. The City has no record of this property being offered for rent as a residential use. The property does not meet the current duplex requirements in the LB-2 Limited Business Neighborhood District. Section 21-255.6 states the minimum lot width at the building line for a duplex shall be 60 feet, and this property has approximately 52 feet. Section 21-255.5 states that there shall be a maximum density of eight dwelling units per net acre. The LB-2 zoning district allows eight units per acre. Section 21-707 states that a duplex would require a minimum of four off-street parking spaces, and this property does not meet that requirement. The issue before the BZA is whether or not the Zoning Administrator has correctly determined that the property is a single-family dwelling unit." Benny Zhang, Kaufman & Canoles, representing the applicant, the memo is as follows: "My client requests that the Board overrule the zoning administrator's determination dated August 6, 2021, that the Property is a single-family dwelling. Instead, we seek to establish the existing duplex dwelling with a commercial accessory use at the Property as legally nonconforming uses. Article X of the City Code treats legally nonconforming uses as lawful and, thus in compliance with the City's Zoning Ordinance. A legally nonconforming use may only be continued for so long as the pre- existing use is continuously used and does not cease for any reason for a period of more than 24 consecutive calendar months. The existing nonconforming use may continue notwithstanding changes in title, possession, or renewal of a lease as long as the applicable provisions are met. See City Code § 21-891. Board of Zoning Appeals October 5, 2021 Page 3 of 7 Page 16 of 26 A board of zoning appeals has the power and duty to hear and decide any appeals from any determination issued by the zoning administrator. See City Code § 21-97. As the appellant, we must rebut the zoning administrator's determination, which is presumed to be correct, by a preponderance of the evidence. Ultimately, it is up to the Board's judgment on whether the zoning administrator remains correct. The preponderance of the evidence is the lowest standard of review and is defined by Cornell Law School's Legal Information Institute as: "the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true." In this case, the evidence provided is sufficient to overcome the zoning administrator's presumption of correctness. First, the 1991 Flat Hat directory offers the clearest rebuttal to the zoning determination that the residence is a single-dwelling by proving that there are separate dwelling units at the Property. Second, the previous Darst law office and subsequently, the Figaro Hair Salon at the accessory structure establishes the existing commercial accessory use. Third, the three separate utility meters currently in use clearly illustrate that at least two dwelling units exist and have been continuously maintained. The zoning determination letter dated August 6, 2021, is silent with respect to this fact. Presumably, two of the three utility meters are designated for the two dwelling units, and the third meter is connected to the accessory structure use. We believe that the third meter connected to the accessory structure may have possibly existed as far back as under John Lee Darst when she operated the law office as an accessory use at the Property, which then continued to Mr. Malara's use for his hair salon before the Property was acquired by my client. My client intends to continue using the accessory structure as an office space for the accessory use. The Board should also consider the intent of the LB-2 Limited Business Neighborhood zoning district (the "district"). According to its Statement of Intent, the district "is established to allow a mixture of office, commercial and residential uses [....)" Currently, duplex dwellings are permitted uses by-right in the district. For this reason, duplex dwellings have been historically contemplated uses for the Westover Avenue neighborhood and more broadly, in the district. The Property's existing duplex dwelling and accessory use as continued uses are certainly compatible for the character of the neighborhood. Confirming the existing duplex dwelling and accessory use at the Property as legally nonconforming uses is the only effective and reasonable remedy to address the zoning administrator's determination dated August 6, 2021. The evidence presented should be sufficient to meet the low-bearing preponderance of the evidence standard to overturn the zoning administrator's presumption. Accordingly, we respectfully ask that the Board of Zoning Appeals establish the existing duplex dwelling and accessory use as legally Board of Zoning Appeals October 5, 2021 Page 4 of 7 Page 17 of 26 nonconforming uses and reject the zoning determination letter dated August 6, 2021." Mr. Warner recused himself from discussion and voting. The Board had no questions for staff. Mr. Lane stated that the applicant had not established prior duplex use. He said that no property records or tax records were provided to show use before 1966 when the ordinance began. Mr. Zhang stated that when purchased, the applicant was presented with a pictogram and believed it conveyed as duplex and wanted to continue that use. Mr. Lane reiterated that there is no evidence presented that it was used a duplex before 1966 or as a continuation of a duplex use to the current date. Mr. Zhang stated that they would like the opportunity to show evidence that it was a rental unit and requested more time to provide further proof. There was a short discussion on the definition of "majority" required for a decision. Ms. Markle clarified that the decision before the Board today is whether the Zoning Administrator made the correct determination. Currently, this property does not qualify for a Special Exemption. She stated that purchasing a property "as-is" does not make it non-conforming. She also noted that a newspaper article does list unit B at the address; however, there is no evidence that the use was a residential rental unit. She concluded that no statements from previous owners, property records, or tax records show a residential rental use. The Board had a short discussion of requirements and evidence needed to show proof of use before 1966 as a duplex. Ms. Morgan stated that she is sympathetic to the applicant, and her questions have been answered. She noted the lack of evidence of rental use from 1966 to the current date. Mr. Lane agreed stated that nothing provided confirms continuity of use. Mr. Jallo stated that there is virtually no evidence and the property would not convey as of 2017 and said it is not a question of additional time. He noted that the applicant would also have to deal with the setback requirement when pursuing a special exception for the property. Moved by Lane, seconded by Morgan, to affirm the Zoning Administrator’s decision in BZA#21-006 regarding 104 Westover Avenue. Carried 3-0-1 by a roll call vote: Board of Zoning Appeals October 5, 2021 Page 5 of 7 Page 18 of 26  Ayes: Jallo, Morgan, and Lane Nays: None Abstain: Warner, Jr. B. BZA#21-007: Request of the Colonial Williamsburg Foundation for a special exception in accordance with Section 21-413 to locate a brickyard on the property at 401 E. Nicholson Street., Williamsburg Tax Map Number 467-0A- 00-014, zoned Colonial Williamsburg Historic Area CW. The Board was able to visit the site individually prior to the meeting. Ms. Markle stated that the applicant has requested a special exception per Section 21-413 of the Zoning Ordinance to create a historic brickyard site at 401 East Nicholson Street. She noted that the brickyard was previously located on the 401 East Nicholson lot from 1977 - 1997. The applicant states that the current site is not level and has presented erosion issues since the relocation in 1997. Ms. Markle stated that the new site will allow Colonial Williamsburg to “accommodate accessible paths for guests and facilitate stormwater management.” She stated the applicant provided sufficient evidence that brickyards were used in the Colonial Williamsburg Historic Area during the 18th century. She stated that staff recommends approval of the special exception request. Neil Ellwein and Matt Webster, Colonial Williamsburg, confirmed that the current site has had erosion issues and is not ADA compliant. There have been stormwater management issues since the site opened 22 years ago. Mr. Ellwein stated that the new site would be next to the carpenter's yard, and the grading would be addressed while also utilizing and extending the existing path. He feels these are complementary sites. He also noted that there would be a sediment pond to address runoff. There was a short discussion regarding musket fire and the potential new use of the current site. Mr. Ellwein stated that they expect only pedestrian traffic to increase and that they will keep a 40-foot buffer of trees between the site and the church. He noted that there would be no change to employment. He also noted the hardship of the lack of ADA accessibility and the stormwater issues. Mr. Lane inquired if this would be a support facility for the Historic Area. Mr. Ellwein confirmed that it would be part of the Historic Area attractions. Board of Zoning Appeals October 5, 2021 Page 6 of 7 Page 19 of 26  Moved by Jallo, seconded by Morgan, to approve special exception request BZA#21-007 based on the criteria contained in Section 21-97(f)2 of the Zoning Ordinance and Staff analysis. Carried 4-0-0 by a roll call vote: Ayes: Warner, Jr., Jallo, Morgan, and Lane Nays: None NEW BUSINESS Meeting Minutes - September 7, 2021 Moved by Lane, seconded by Jallo, to approve as presented. Carried 4-0-0 by a roll call vote: Ayes: Warner, Jr., Jallo, Morgan, and Lane Nays: None ADJOURNMENT Chair Warner adjourned the meeting at 5:17 p.m. Ray Warner, Jr., Chair -- Board of Zoning Appeals Board of Zoning Appeals October 5, 2021 Page 7 of 7 Page 20 of 26  RULES AND PROCEDURES BOARD OF ZONING APPEALS WILLIAMSBURG, VIRGINIA ARTICLE I. MEMBERSHIP The Board shall consist of five (5) members appointed by the City Council in accordance with Section 21-96 of the Zoning Ordinance. A member whose term expires shall continue to serve until a successor is appointed and qualifies. In the discretion of City Council members may be reappointed to succeed themselves. Members of the Board shall hold no other public office in the City except that one may be a member of Planning Commission. It is the current practice of the City Council not to reappoint any persons who have served more than two successive (five-year) full terms. Board members are encouraged to become certified within eighteen (18) months of appointment in the Virginia Certified Board of Zoning Appeals Program. The costs associated with such certification shall be borne by the City. ARTICLE II. OFFICERS 1. The Board shall elect one person to serve as Chair, and one person to serve as Vice-Chair annually at its first regular meeting following January 1 of each calendar year. If such regular meeting is cancelled or a quorum is lacking, the election shall be held at the next regular meeting. 2. The Chair shall preside at all meetings and hearings of the Board at which the Chair is present. The Chair shall decide all points of order or procedure and shall appoint any committees that may be found necessary. 3. The Vice-Chair shall assume the duties of the Chair in his or her absence. 4. If the Chair and Vice Chair are both absent and unable to preside, the members shall appoint a temporary Chair to preside. 5. The Secretary shall have the duties customary to such office including the keeping of the minutes. The Board may elect as its Secretary either one of its members or a qualified individual who is not a member of the Board. The Secretary shall not have a vote by virtue of such position. Page 21 of 26 Rules and Procedures Board of Zoning Appeals Page 2 6. The Board may, with the concurrence of the Zoning Administrator, designate an employee of the City Planning Department to act as the Board’s Recording Secretary to prepare an initial draft of the minutes of any meeting for review and approval by the Secretary prior to submission to the Board for final approval. ARTICLE III. MEETINGS 1. A regular meeting of the Board of Zoning Appeals shall be held on the first Tuesday of each month at 4:00 P.M. However, no meeting shall be scheduled if there are no applications pending or if there is no other business before the Board. All regular meetings shall be open to the public. 2. The Chair may call special meetings provided at least five (5) days notice of such hearing is given each member in writing. 3. A quorum shall consist of three (3) members or a simple majority of the Board. The concurring vote of three (3) members (a majority of the membership) shall be required to grant variances or to reverse decisions or determinations of the Zoning Administrator. A majority of the membership present and voting is required to uphold a decision or determination of the Zoning Administrator, to grant a special exception or to interpret the official zoning map where there is any uncertainty as to the location of a district boundary and to amend these Rules of Procedure. The concurring vote of a majority of all members present and voting or such other greater number as may be required by state law shall be required to effect all other actions of the Board. If the majority of the Board fails to attend within half hour of 4:00 P.M., the Secretary shall enter the names of the members present and the adjournment for want of a quorum. 4. An agenda for each regularly scheduled meeting of the Board shall be prepared by the Zoning Administrator and delivered to each member of the Board no later than four (4) business days prior to the meeting. Included with the agenda shall be any materials submitted by any applicant or appellant or by any interested person. The Zoning Administrator shall briefly summarize the facts and provisions of the Zoning Ordinance applicable to each case. The order of business at all regular meetings of the Board shall be as follows: • Call to order. • The hearing of applications deferred from a previous meeting. • The hearing of applications not previously presented to the Board. • Zoning Administrator report, if any. • Unscheduled items: Old Business, New Business. • Reading and approval of minutes of previous meetings. • Adjournment. 5. The Board may adjourn a regular meeting if all applications or appeals cannot be disposed of in the day set. Such adjournment shall be mandatory five (5) hours after the start of a meeting. 6. Any member of the Board shall be disqualified to act upon a matter before the Board with respect to any agenda item in which the member has a disqualifying Page 22 of 26 Rules and Procedures Board of Zoning Appeals Page 3 interest under the provisions of the Comprehensive Conflict of Interest Act (Title 2.1, Chapter 40, Code of Virginia, 1950). 7. The Board shall allow for electronic participation in meetings by Board members as permitted by and in conformity with the requirements found in Section 2-34 of the Williamsburg Code. ARTICLE IV. POWERS AND DUTIES The Board of Zoning Appeals shall have the powers and duties specified in Section 21- 97 of the Zoning Ordinance or as may be otherwise specified by applicable law or ordinance. ARTICLE V. APPLICATIONS OR APPEALS TO THE BOARD 1. All application or appeals to the Board shall be made on forms supplied by the Planning Department. The application or appeal shall include: a. Seven (7) copies of a plat of the affected parcel when a plat is required to be provided. b. The property owner shall sign the application or appeal. c. Payment of all applicable fees, which shall be paid before the application or appeal shall be deemed filed. 2. All applications or appeals shall be accompanied by all of the information enumerated in the Zoning Ordinance for such applications or appeals before being scheduled for a public hearing. The Zoning Administrator may refuse to schedule a matter for Board determination unless he or she is satisfied that all pertinent information has been provided. ARTICLE VI. PROCESSING OF APPLICATIONS 1. All applications will be received by the Zoning Administrator and shall be set for public hearing in the order in which they are received. 2. The Zoning Administrator shall notify the applicants in writing of the date, time and place of the scheduled public hearing. 3. The Zoning Administrator, in accordance with the provisions of the Code of Virginia, shall cause to be advertised in the Virginia Gazette or other newspaper (published not less than twice before the meeting) of general circulation within the City of Williamsburg, the required legal published notice of the public hearing for any application. Notice shall also be given of the time and place of any site visit by the Board in connection with any public hearing. Page 23 of 26 Rules and Procedures Board of Zoning Appeals Page 4 4. The Zoning Administrator shall compile all pertinent information and supply same with his or her comments through a staff report to the Board at the scheduled time and place of its public hearing. ARTICLE VII. SITE VISITS AND HEARINGS 1. Interested members of the public may be present at any site visit to inspect the premises in question. Any discussion among Board members at any site visit, which relate to the subject matter of the visit, shall be made in such manner as to permit interested parties to hear the discussion. Applicants or appellants by virtue of having filed an application or appeal shall be deemed to have given permission for Board members and interested members of the public to come on to any premises, which are the subject of the application or appeal. 2. At the time of the public hearing, the Zoning Administrator will present its Report, which shall identify the property, briefly describe the application and provide the Board with any recommendation it may have or any other recommendation made by any other agency, board or department of the City. A copy of the Report shall be made available in the hearing room for examination by members of the public attending the meeting. The Board may ask questions of staff concerning the Report and the application. 3. The public hearing shall then be opened. 4. The applicant or his or her authorized agent shall be present and shall be allowed adequate time to present the background and justification for the application and to answer questions from members. Members of the public shall have no right to pose questions to applicants. 5. Persons in support of or in opposition to the application may present their position. Any such person shall identify themselves at or before the commencement of the meeting by name and address prior to the hearing as wishing to speak and shall be heard in order of such identification. Such presentation shall be subject to the following time limitations: • Five (5) minutes – individuals • Fifteen (15) minutes – representative of an organization or group The Board, in its discretion by majority vote of members present, may allow additional time for an individual or group representative to make a presentation. 6. The applicant shall be permitted an adequate time for rebuttal. 7. It shall be the responsibility of the Chair to determine the adequacy of time within which an applicant may present or defend his or her position and to enforce the specific time limitations set forth in this Article so that the hearing is held in a prompt, fair and judicious manner. 8. Close public hearing. 9. The Board at this time may discuss the application and either approve, deny or continue to the next regular meeting. The motion to approve, deny or continue the application shall include a clear and concise statement of the reasons for approval, denial or such continuance. Page 24 of 26 Rules and Procedures Board of Zoning Appeals Page 5 10. Board of Zoning Appeals decisions may be appealed to the Circuit Court as allowed by Section 21-99 of the Zoning Ordinance. Such appeal must be filed with the Court within (30) days after the final decision of the Board. ARTICLE VIII. SPECIAL RULES FOR APPEALS FROM ADMINISTRATIVE DECISIONS 1. Chair announces the subject matter and reminds the appellant and those parties present at the public hearing of the provisions of the Zoning Ordinance that mandate a concurring vote of three (3) members to reverse a determination of the Zoning Administrator or other administrative officer. 2. Chairman calls on Zoning Administrator or designee to present the Zoning Administrator’s position. 3. Members may pose questions to the Zoning Administrator 4. Chair opens the public hearing. 5. Chair calls on appellant or his or her agent to present the appellant’s position. The appellant shall be limited to a thirty (30) minute presentation. 6. Members may pose questions to the appellant. 7. Chair calls for comment from any person wishing to speak, stressing that testimony should be limited to the precise issue that is the subject of the appeal. Any such persons shall identify themselves prior to the hearing as wishing to speak and shall be heard in order of such identification. Unless waived by a majority vote of Board members present at the meeting, each speaker shall be limited to five (5) minutes. No speaker shall have the right to pose questions to the appellant. 8. Chair calls on Zoning Administrator to pose rebuttal or additional remarks. 9. Members post final questions to either the appellant or the Zoning Administrator. 10. Chair closes the public hearing. 11. Board discussion and vote. The motion to approve, deny or defer the application shall include a clear and concise statement of the reasons for approval, denial or deferral. ARTICLE IX. RECORDS AND REPORTS 1. The Zoning Administrator or the Recording Secretary shall keep a file of all materials and decisions relating to each case as part of the records of the Board of Zoning Appeals. 2. The Board shall submit a report of its activities to the City Council at least once a year and may include therein any recommendations it may have with respect to any amendment to the Zoning Ordinance proposed by the Board. 3. All records of the Board shall be public records. ARTICLE X. RIGHT OF REPRESENTATION Page 25 of 26 Rules and Procedures Board of Zoning Appeals Page 6 Anyone appearing before the Board may do so in person or be accompanied or represented by legal counsel or other duly authorized representative. If such person does not appear personally but is to be otherwise represented, written authority from such person authorizing his or her representative to act on his or her behalf must be submitted to the Board prior to the hearing. ARTICLE XI. AMENDMENTS These Rules of Procedure may be adopted, amended or rescinded by an affirmative vote of the members present and voting when the question is called. Page 26 of 26