HomeMy WebLinkAboutVA197800078 Application 1978-12-20 $20. Permit Fee V 0`, Application No. _,.:1)1 -
Sign Erected By: Staff:
APPLICATION FOR VARIANCE
Zoning Department
414 E. Market Street
Charlottesville, VA 22901
County of Albemarle
296-5832
Date of Application December 20 , 19 78
OWNER OF PROPERTY OCCUPANT (If other than owner)
N m : Virginia National Bank Nan: Mr. & Mrs. Edgar 0. Kinnier, Jr.
Address: 300 East Main Street Address: Andrew Lane
Charlottesville, VA Charlottesville, VA
Telephone: 9 7 7-2 2 3 4 Telephone:
Location of Property: Lot 1, Section One, Lewis Hill Subdivision, Albemarle
County, Virginia
Tax Map 58 Parcel 44141L (part of) Acreage 2. 00 acres
Existing Zoning A-1 District Samuel Miller
�,. Existing Use: Residence
Variance sought (describe briefly relief sought) :
Variance of &-foot side set back requirement in accordance
with the attached proposal . //c f ....
y
I hereby certify that the foregoing information is true and correct to the best of my
knowledge and belief and that I am the owner named above.
John V. Little VIRGINIA NAT L BANK
MICHIE, HAMLETT, DONATO & LOWRY /
Counsel for Virginia National Bank BY: V /1. Z2/lr
P. 0. Box 298 Applicant ate
Charlottesville, VA VP
FOR OFFICE USE ONLY'
Zoning Administrator has/leas-net rendered a decision. If so, state substance of iecision:
Date of Hearing: / 9 7 9 Final Decision Made: / /77
The variance sought was pproved with the following conditions:
Special Use Permitq� �� OF ZOu� 4"Ple S
Sign Permit; BY:
Date
Building Permit,
N.rC °r✓
STAFF REPORT
VA-78-78. Virginia National Bank
Tax Map: 58
Parcel: 81J
Zoned: A-1
Existing Activity
Single family dwelling
Proposed Variance
Applicant seeks relief from section 2-5-2 of the Albemarle County Zoning Ordinance
to allow a single family dwelling to be located on the rear property line; a variance
of 35 feet.
Zoning Ordinance Requirements
Each main structure shall have a rear yard of thirty-five (35) feet or more.
Staff Recommendation
The Zoning Administrator's investigation into this unusual situation discovered that
the former owner on his own after a zoning inspection moved the approved location
of the building. (Building permit application attached, preliminary zoning inspector's
site inspection report attached.)
However, the final zoning inspection was approved even though the building was in
violation of the setback due to the visual inspection by the inspector at that point
not being able to ascertain or see property lines or the obvious violation. A re-
survey at a later date showed the error and has now come to the attention of the County.
The owner has attempted to realign the property line with his adjoining neighbor and
pay for it. However, the staff's information is that the neighbors could not agree
on a price.
An economic hardship alone is not sufficient basis to grant a variance. A legal
hardship must be shown. Without a showing of the same, the staff recommends
denial of the variance and recommends the applicant pursue the matter in another
appropriate forum.
MEMORANDUM IN SUPPORT
ZONING VARIANCE APPLICATION
Virginia National Bank is the owner of Lot 1 ,
Section 1, Lewis Hills Subdivision, Albemarle County, Virginia.
This property is owned by VNB as a result of foreclosure under
a loan to Mr. and Mrs. Stephen J. Hunter. VNB has recently
discovered that the house constructed by Mr. and Mrs. Hunter,
encroaches about two feet onto the adjacent lot. VNB seeks a
variance from Section 2-5-2 of the Albemarle County Zoning
Ordinance (as amended October, 1977) which provides for minimum
rear setback of thirty -five feet.
Mr. and Mrs . Hunter retained the Charlottesville
architectural firm of Grigg, Wood and Browne to design the house
in question. Under the terms of the retainer letter, the
architects' duties included "the actual on-site stakeout" of the
structure. " The architects claim, however, that Mr. Hunter
subsequently moved the stakes, and thus causing the encroachment.
The contractor, John Anderson Construction Company, insists that
it merely followed the instructions of Mr. Hunter in locating
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the house on the lot.
The County was also confused as to the exact location
of the boundary. The County field inspection records show the
residence located on the VNB lot to be in compliance with the
Zoning Ordinance , and even a Certificate of Occupancy was issued
to Mr. Hunter, the former owner. The adjacent landowners, Mr. and
Mrs. Daniel J. Gerard, also were unaware of the actual location
of the property line when they purchased their property. In
fact, they believed it to be in a location which would conform
with the setback ordinance.
In short, a number of parties, including the County
itself, was mistaken as to the actual location of the boundary
line. This common error was probably the result of a VEPCO
transformer box which was improperly located. Generally, these
VEPCO boxes are located along property boundary lines, but, in
this case, the box was misplaced in the interior of the adjacent
lot. Moreover, the typography between the two lots suggests a
different boundary line. A knoll predominates approximately forty
feet from the location of the actual boundary line.
The VNB property is presently under contract to be
sold to Mr. and Mrs. Edgar O. Kinnier who are presently occupying
the residence located on this property. At present, VNB, and
the adjacent landowners, Mr. and Mrs. Gerard, are engaged in
negotiations in order to cure this encroachment.
These negotiations have been under way for some
time. During the course of these negotiations, Mr. Gerard' s
financial advisor offered to enter into a boundary agreement
which would swap twenty-seven feet of land in order to cure the
encroachment and the zoning violation. His price tag for this
agreement, was initially $15 , 000. 00, and later reduced to $10, 000. 00.
After consulting area real estate appraisers, VNB offered to pay
I
$2 , 500. 00 which it considered top dollar. In fact, an appraisal
made by an appraiser retained by the Gerards arrived at a settle-
ment figure of arouna $2 ,100. 00.
At present, VNB and the Gerards are considering a
settlement proposal which is contingent upon this zoning variance.
By the terms of this proposal, Mr. and Mrs. Gerard would convey
to VNB a four foot square triangle so that the encroachment woull4
be cured. In addition, this conveyance would be coupled with an
agreement not to erect any fence, wall , or other structure within
a designated buffer zone which is shown on the attached plat as,
Area "A" . This would, in essence, create a privately imposed
setback requirement. Also, from an aesthetic point of view, VNB
has retained the services of a landscape architect to further
create a separateness between the two lots by the planting of
trees and shrubs. This proposal would also allow Mr. and Mrs.
Gerard to make substantial additions to their existing residence
in the future without violation of the setback ordinances. After
much negotiation, this proposal appears to be the only manner in
which this boundary problem can be resolved in a feasible manner.
Section 12. 1-2. 3 of the Albemarle County Zoning
Ordinance provides:
iI
No such variance shall be authorized by the board
unless it finds: (a) that the strict application
of this ordinance would produce undue hardship;
(b) that such hardship is not shared generally by
other properties in the same zoning district and
the same vicinity; and (c) that the authorization
of such variance will not be of substantial detriment
to adjacent property and that the character of the
district will not be changed by the granting of the
variance (Amended 12-1-76) .
In this case, the strict application of this ordinance
would produce an undue hardship. This property was taken by the
Bank in good faith as collateral for a loan and was obtained
involuntarily as a result of foreclosure. VNB, as well as the
County, the adjacent landowners, and probably Mr. Hunter were
unaware of the actual location of the true boundary. In fact,
the typographic conditions suggest a boundary which would conform
with the ordinance. Under these circumstances, a strict applica-
tion of this ordinance would produce undue hardship as VNB wound !
be required to either move the house or would not be able to use
i
it as a residence.
Second, this hardship is not shared generally by
other properties in the same zoning district in the same vicinity.
Since the above facts are quite unique, this property is the onir
one which possesses this hardship.
Finally, the authorization of this variance will not
be of substantial detriment to the adjacent property and the
character of the neighborhood will not be changed by the granting
of the variance. Here, the variance which is proposed is the
outgrowth of negotiations with the adjacent landowners. In fact,
the adjacent landowners desire to give up as little property as
possible yet retain flexibility with respect to future additions
to his house. The proposal outlined above enables him to accomplish
this goal. With respect to the character of the neighborhood, it
is submitted that this variance will have little affect on
surrounding property values. Moreover, the variance itself will
not be in violation of any subdivision restrictions.
In short, VNB merely seeks the blessing of this
Board so that it may reach a private resolution of this bizarre
boundary problem. Accordingly, Virginia National Bank respect-
fully requests that the Board of Zoning Appeals grant a variance
of the terms of the setback ordinance in this case.
Respectfully submitted,
VIRGINIA NATIONAL BANK
By Counsel
n P .1-1Q.Q_
ohn . Little for
MICR , HAMLETT, DONATO & LOWRY
500 Court Square, Suite 300
Charlottesville, VA 22901
Counsel for Virginia National Bank
January 9, 1979
I
THIS AGREEMENT dated January 2 , 1979 , between
VIRGINIA NATIONAL BANK , a national banking association (herein
"VNB") ; DANIEL J. GERARD and LESLEY GAY GERARD, husband and
wife, (herein the "Gerards" ) ; and EDGAR O. KINNIER, JR. and
LINDA M. KINNIER, husband and wife, (herein the "Kinniers" ) .
W I T N E S S E T H :
VNB is the owner of certain real estate situated in
Albemarle County, Virginia, near Ivy, containing two acres, iI'
more or less, and more particularly described as Lot 1 , Section
One, of Lewis Hill , as shown on plat of William S. Roudabush,
Jr. , dated February 6 , 1976, of record in the Clerk' s Office
of Albemarle County, in Deed Book 591 ; page 345 BEING the same
property conveyed to Virginia National Bank by deed of M. E .
Tremain and Harold D. Morris, Trustees, dated August 31 , 1977
and recorded in said Clerk' s Office in Deed Book 631, page 194 .
The Kinniers have contracted to purchase the above property.
The Gerards are the owners of certain real estate
situated in Albemarle County, Virginia, near Ivy, containing
2. 031 acres, more or less, and more particularly described as
Lot 1 , Section Two of Lewis Hill, as shown on plat of William
S. Roudabush, Inc. dated May 5, 1976 , of record in the Clerk' s
Office of the Circuit Court of Albemarle County, Virginia, in
Deed Book 599, page 667 and BEING the same property conveyed
to Daniel J. Gerard and Lesley Gay Gerard, by deed of Frank Lane
Hereford and Beverley W. Hereford, husband and wife, dated
June 21, 1978 and recorded in said Clerk' s Office in Deed Book
650, page 162.
The parties are uncertain of the location of the
common boundary lines between these two adjoining parcels as
described by the respective deeds of the present owners, and
desire to establish conclusively the location of the common
boundary lines in order to avoid any future boundary dispute.
NOW THEREFORE, in consideration of the mutual promises
herein contained, the parties agree as follows :
1. Location of Boundary. The parties agree that
the common boundary line between their properties shall be
located as shown on a plat of William Morris Foster, dated
December 5, 1978, captioned "Plat Showing Physical Survey of
Lot 1, Section One, 'Lewis Hill' , Albemarle County, Virginia" ,
a copy of which is attached hereto and made a part hereof.
2. Conveyance. For and in consideration of $10. 00
and other valuable consideration, Daniel J. Gerard and Lesley
Gay Gerard, husband and wife, hereby GRANT, CONVEY AND RELEASE to
Virginia National Bank all their claims, if any, upon the land
shown on said plat as Parcel X.
I�.
3. Use of Area A. No building, fence, wall or
other improvements or structure shall be commenced, erected,
moved or maintained within Area A as shown on the attached
plat.
4. Benefit. The covenants, conditions, restrictions
easements, and other terms of this Agreement shall run with
and bind the land and shall inure to the benefit of and be
enforceable by the parties, their respective legal represen-
tatives, heirs, successors and assigns.
5. Severability. The invalidity or unenforceability
of any of the provisions of this Agreement shall in no way
affect any other provisions , which shall remain in full
force and effect.
6. Enforcement. The parties shall have the right
to enforce, by any proceeding at law or in equity, the
restrictions, conditions and agreements imposed by the
provisions of this Agreement. The land described herein is
unique and each party to this Agreement shall have the remedies
which are available for the violation of any of the teilus of
this Agreement, including but not limited to, the equitable
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remedy of specific performance. Failure to enforce any
covenant or restriction herein contained shall in no event
be deemed a waiver to the right to do so thereafter.
7. Construction. This Agreement shall be construed
and enforced in accordance with the laws of the State of
Virginia.
8. Entire Agreement. This Agreement constitutes
the entire agreement between the parties and may not be
modified except by written instrument signed by all of the
parties.
The names of the Gerards are signed hereto by
Phillip M. McLaughlin, their attorney-,in-fact, by authority
of an instrument dated and recorded in the
Clerk' s Office of the Circuit Court of Albemarle County
immediately preceding this Agreement.
WITNESS the following signatures and seals : j
VIRGINIA NATIONAL BANK
By: (SEAL)
(SEAL)
DANIEL J. GERARD, by Phillip M.
McLaughlin, his attorney-in-fact
(SEAL)
LESLIE GAY GERARD, by Phillip M.
McLaughlin, her attorney-in-fact
II q�
(SEAL)
EDGAR 0. KINNIER, UR.
(SEAL)
LINDA M. KINNIER
STATE OF VIRGINIA
COUNTY OF ALBEMARLE
The foregoing instrument was acknowledged before
me this day of January, 1979 by
as of Virginia National Bank.
' Notary Public
My Commission Expires:
STATE OF VIRGINIA
CITY/COUNTY OF
The foregoing instrument was acknowledged before me
this day of January, 1979 by Phillip M. McLaughlin at
attorney-in-fact for Daniel J. Gerard and Lesley Gay Gerard.
Notary Public
My Commission Expires:
1
STATE OF VIRGINIA
COUNTY OF ALBEMARLE
The foregoing instrument was acknowledged before
me this day of January, 1979 by Edgar O. Kinnier, Jr.
and Linda M. Kinnier, husband and wife.
Notary Public
My Commission Expires :
THIS CERTIFIES THAT ON 3•4\--r Z1, 11:E. I SURVEYED THE PROPERTY SHOWN HEREON AND THE TITLE LINES
AND IMPROVEMENTS ARE AS SHOWN ON THIS PLAT. ginf."74444.44J-7,4.- Az. 5. VA CERT. NO. 998
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Professional Land Surveyor
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Charlottesville , Virginia
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