Loading...
HomeMy WebLinkAboutAugust 13, 2003 Regular Meeting 027 A Regular Meeting of the Frederick County Board of Supervisors was held on August 13, 2003, at 7:15 P.M. in the Board of Supervisors' Meeting Room, County Administration Building, 107 North Kent Street, Winchester, Virginia. PRESENT Chairman Richard C. Shickle; Vice Chairman W. Harrington Smith, Jr.; Robert M. Sager; Margaret B. Douglas; Sidney A. Reyes; Gina A. Forrester; and Lynda J. Tyler. CALL TO ORDER Chairman Shickle called the meeting to order. INVOCATION Supervisor Sager delivered the invocation in absence of the minister. PLEDGE OF ALLEGIANCE ADOPTION OF AGENDA Administrator Riley advised he had nothing to add. CONSENT AGENDA Administrator Riley suggested the following tabs for approval under consent agenda: 1. Proclamation Re: September as Family Day - A Day to Eat Dinner with Your Children - TabB; 2. Review and Endorsement of Northwestern Community Services' Fiscal Year 2004 Performance Contract - Tab D; 3. Resolutions from the Fire and Rescue Director RE: Virginia Department of Emergency Management Program Grants - Tab E; 4. Resolution Re: Changes in the Primary and Secondary System Due to Relocation and Construction on Route 863 - Extension of Tyson Drive in the Stonewall Industrial Park- TabH; 5. Parks and Recreation Commission Report - Tab K; 6. Road Resolution, Raven Wing Subdivision, Section II and 1II - Tab Q. Upon motion made by Supervisor Sager, seconded by Supervisor Douglas, the consent agenda was approved, as presented, by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 CITIZEN COMMENTS Bill Shepherd, Gainesboro District, would like to ask a question about the traffic related to the WWW project. He believes Mr. Chuck Maddox stated here recently there would be 14,000 additional vehicle trips per day when this project is fully developed. These would be in addition to the 22,000 trips that already occur daily on Route 50, west of 37. 22,000, that would certainly increase in future years, to who knows what, independent ofthe WWW project. The Winchester Medical Center project is supposed to add 15,000 vehicle trips per day. This means we wilI, in alI likelihood, have more total vchiclc operations on this section of highway, Route 50, than we currently experience on Route 81. My question is, are we ready for this? Have we planned for this traffic flow; I mean, really planned? Pam Kennedy, Gainesboro District, advised that it has been stated that the apple does not fall far from the tree. That is the core of the issue, is it not, in Frederick County? That soon, all too soon, we will have few apples falling from trees, because we will have few trees left. The crop ofthe past apples is rapidly being replaced by today's crop, houses and unlike with apples, where the problems can largely be counted. Because it represents a true lack of planning and control, it encompasses much that is less grand. High taxes, roads under construction, that can never meet demand, air that is of low quality, the destruction of a rural character that can never be returned. Ms. Kuhn advised that she just wanted the Board to remember, when you're starting to talk about Stephenson Village, why the majority of us that live in Stephenson community moved there. There's a rural community there, we're not just people that popped in there, we chose to live there because ofthe surroundings that we have, because we are a community. We don't need 2800 homes coming in and a bunch of gated communities and all ofthat other garbage that goes with congestion and traffic lights and more cars and kids running amuck because their parents are working in Loudoun County. David Hurd, Stonewall District, stated the agenda tonight calls for an opinion by Attorney Ambrogi on the Northeast Land Use Plan. It's interesting that all the maps are up on the boards behind us. I'm here to once again iterate that the land that is being considered for the Stephenson Village project, is historical land, it is in the Milburn Historical District, it is in the Civil War Historical area. It is a heritage that we only have until we do something wrong with it, build on it, otherwise obliterate it. I don't believe the Board of Supervisors has yet to query, in an appropriate Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 029 manner, the citizens of Stonewall District, as to what use they would put that land to. Not withstanding, there's a whole lot more in the northeast portion ofthe county, but the real issue that's got everybody upset right now is that one section ofland. And I don't believe we have actually done any query of them. Mike Weber, resident of the Stonewall District, advised his property adjoins the McCann property on two sides, as well as the Shockey property and is tied in with this land use plan. He would just like for the Board to consider, before they accept Alternative four or any of the Alternatives, what the future of that area is. It's historically been farmland, he has heard people from the Planning Commission and from Shockey's side and other people say, it's no good for farming. He farms the adjoining land that has been farmed for many years. He does feel we need some rural land, we need some farmland and it does need to be protected. The plan, if you change to Alternative four, to 2800 houses, if you consider the traffic that's on Route 11 now, and what we are hearing all over the County, is this Board has decided that 37 is not needed, well, where is this traffic going to be moved from? I understand with the plan, Redbud Road will be moved down to enter adjacent or across from the exit to Rutherford Farm Development, which has been passed for an industrial park and business park. He feels we will just be moving the problem 100 yards north and really making one heck of a lot of congestion. Glen Penton, Stonewall District. A few weeks ago we were introduced by the Shockey team to this book, and you know it well. The title of it is, To Save Our Land, Save Our Town. And this is what the citizens are asking that we do tonight. This book is a good guide, it's a simple idea to save the open space, to build inside the UDA, to develop around the core center. It's quite thick, it's quite noted for its excellence in Pennsylvania. I'm sure all of you've seen it. It's a simple idea, but it seems so impossible to get done. It's just keep the open land and develop inside. We want you to stop wasting our open land, don't extend the UDA. We have enough land inside the UDA. Doug Cochran, Stonewall District, advised the Northeast Land Use Plan debate is the exact reason so many citizens bow out of the political process from the local to the national level. He was one of several citizen liaisons who dedicated untold hours to a process that has gotten us virtually nowhere. To the Board's credit, you have added a developmentally sensitive designation to the core battlefield areas that have been the center of much controversy, and staff has updated all four alternatives. Except for the DSA change, Alternative three is identical to the plan currently on the Minute Book Number 29 Board of Supervisors Regular Meetiug of 08/13/03 030 books. The rationale behind this plan's development is fuzzy, at best. It offers a heavy industry burden and business usage and is largely unsupported by the residents ofthe Stonewall District. As a result ofthis alternative's flaws, and the objections ofthe citizens of the District, the Board directed the Planning Commission to reevaluate the entire plan. It is an insult to the Board's authority that this plan is still an Alternative. Alternative one is identical to the original plan and Alternative three, except the lung area, has been changed to developmentally sensitive designation. This is a good start and a closer reflection of the desires of the residents ofthe district. Alternative four is identical to the original plan and Alternative three, except it exchanges the rejected M1, M2 designation ofthe lungs, for an R4 designation. The developer who currently owns the land, freely admits that an industrial park on the site was the wrong thing to propose, and now he offers us a, quote, unquote, friendly 2800 house community. Katherine Whitesell, Stonewall District, advised she was present tonight again to, everyone knows how I feel about the 2800 homes. The impact is just too much. It will double my district's residences. We have a core battlefield that has a urban development area on it, on map number four and that's, you know what, you put a DSA on it, now you're going to put UDA on it. It makes no sense. The process needs to go back. The process has been flawed. We had petitions at the fair. We had several people discuss that they thought this may be a good idea. We had over a hundred signatures against this,. Kenneth Y. Stiles, Stonewall District, addressed is the issue the Board discussed at your last meeting, the proposal by the Association of Counties to spend tax dollars on radio advertisement or other ads berating the General Assembly for not sending enough money back to localities. I think the whole point was missed in that discussion. That's an outrageous use of our tax money, for one level of government to be running advertisements against other levels of government. And I think about all you would achieve is irritate our local members of the General Assembly, both of whom worked, or all three of them have worked very hard to try and increase the amount of money that comes back to our locality. With reference to the Northeast Land Use Plan, it's not our land, it belongs to somebody. It's not the County's land. In were Ms. Whitesell, I'd be the last person to stand up and question somebody's commitment to the preservation of a battlefield. I would also request that in any of your planning on this, that you make provisions for the potentiality that this or another Board might reverse the decision on Route 37, so that at least a corridor is identified Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 031 through there, if somewhere down the road, ten years, two years, one year, Route 37 is put back in the plan and there is a corridor. BOARD OF SUPERVISORS COMMENTS Supervisor Tyler advised she was not going to spend a lot of time. She has not had an opportunity to address the public at large, other than the opportunity to write an open forum, which she chose not to do. She would like to address the recall situation. She can't believe that we would even stoop to this level, but there was one thing that she found out, after being gone for a week, came home, had no idea that this was occurring. The outpouring of support from the average citizen, not even in Stonewall District, outside ofthe community, certainly made her heart feel better that this is a vial attempt to get someone's way, and this Supervisor didn't appreciate it. She would also like to talk about the petition and if given the choice, this was in the paper, if given the choice of 2800 homes or the existing rural landscape, most of us are going to choose the latter or rural environment, just as the petitions that were circulating had said. Unfortunately this land, she believes, to remain rural is no longer an option. She would suggest that folks, she will be happy to sign it, ante up and buy the property. You don't own the vista. Something is going to happen to this property, and that was evident last year, when this supervisor lost the ability to keep the sewer and the water lines off that property. That was the deciding day right there, that something is going to happen to this property. She fought it long and hard, as you all are aware. Now we have a proposal before us for mixed use residential development. She is not going to speak to the rezoning, it's not here this evening. But someone has some property rights, and that seems to be being ignored. The consensus that Stonewall wants to stay rural, well, there's a lot offolks that would like to keep it industrial too. Go up and down the road, talk to people. She has done so. Once you've dispelled the misinformation that's been put out there, you will hear the truth. She would like to talk about the Milburn Historic District. She asked over a year ago, Mr. Lighthizer with the Civil War Preservation Trust, she sat down, had lunch with him, reached out and asked for some help on how to save this. He never returned my phone call after that point, he told me that he was going to give me resources, lawyers, he never returned my call. Repeated phone calls, She reached out to the National Trust of Historic Preservation. Ms. Whitesell is quite aware of the information that I submitted on that. She tried to get a record of decision on the Route 37, which waived all of our citizen rights on protection of that historic district. That was ignored as well. So, she would suggest that the preservationists, Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 who are really involved in trying to do it, then ante up, show the money to the developer and be done with it. I'd also like to talk about the three things that are in the Milburn District, Historic District. There's the Historic Jordan Springs, that's been addressed by Tonie Wallace and Greg Aiken, who put an overlay district on it. I'd also like to talk about the proffered preservation adaptive reuse of the Byers house, part of the Stephenson Village. And the Stephenson Associates has left the battlefield out of the rezoning. There is no core battlefield of 2nd and 3rd Winchester, even in this rezoning package. And criticisms for her working with Stephenson Associates and the landowner on this project, stems simply from the fact that she has to deal with the cards that are here. She does see what the reality is and she is not willing to gamble with the community. We can propose a project, have no voice on how this land is developed, beyond what is permitted by the existing County Code. What about the By Right Development, that one is a scary one as well. That's not been honored. That would certainly destroy the battlefield, that would destroy a lot of things and the tax implications are huge on that one as well. We can work on a compromise for folks who are so adamantly opposed to this, have you sat down and actually had meetings with Mr. Shockey. Have you had an open dialogue? Have you bothered to call up your supervisor and have a discussion? Okay? She knows she is getting a little bit upset about this, but she will tell you, She is getting real tired of the accusations. If you want the battlefield, buy it. She knows we have development coming, She\I thinks it's better to address it in a pro active way, with a plan and a clear path to the future that includes benefits for the residents of Frederick County. Like it or not, She doesn't believe that this area is going to stay rural, the Shockey property. She will not bore you with the rest of my tirades, but that's it for the Supervisor comments. Supervisor Reyes, advised he has heard from some of the residents that they're being inconvenienced by the time schedule for the citizen comments, moving up and down. Some of them get off from work and get here and they find out that the citizen comments of the Board meetings have been held and they're a little bit upset about that. He wondered if the Board would consider keeping it on a regular scheduled time, so everybody knows when the citizen comments will take place. Chairman Shickle asked Administrator Riley to check on this. MINUTES Regular Meeting, May 14, 2003, Supervisor Forrester advised that it appeared a sentence was Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 033 missing at the bottom of page 3 carrying over to page 4. She moved to hold this set over until the next Board meeting. Supervisor Sager seconded the motion. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye Upon motion made by Supervisor Sager, seconded by Supervisor Smith, the minutes of the Worksession on Rules of Procedure, May 20,2003, were approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye Upon motion made by Supervisor Smith, seconded by Supervisor Reyes, the minutes ofthe Regular Meeting of May 28, 2003, were approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda 1. Tyler - Aye COUNTY OFFICIALS PROCLAMATION (#OOl-03)RE: SEPTEMBER AS FAMILY DAY -A DA YTOEAT DINNER WITH YOUR CHILDREN - APPROVED UNDER CONSENT AGENDA WHEREAS, the use of illegal drugs and the abuse of alcohol and nicotine constitute the greatest threats to the well-being of America's children; WHEREAS, surveys conducted by the National Center on Addiction and Substance Abuse have consistently found that children and teenagers who routinely eat dinner with their families are far less likely to use illegal drugs, cigarettes and alcohol; WHEREAS, teenagers who virtually never eat dinner with their families are 72 percent more likely than the average teenager to use illegal drugs, alcohol and cigarettes; WHEREAS, teenagers who almost always eat dinner with their families are 31 percent less likely than the average teenager to use illegal drugs, alcohol and cigarettes; WHEREAS, the correlation between family dinners and reduced risk for teen substance Minute Book Number 29 Board of Snpervisors Regular Meeting of 08/13/03 034 abuse are well documented; WHEREAS, parental influence is known to be one ofthe most crucial factors in determining the likelihood of substance abuse by teenagers; WHEREAS, family dinners have long constituted a substantial pillar of family life in America; NOW, THEREFORE, BE IT RESOLVED, that the Govemorrecognizes that eating dinner as a family is an important step toward raising drug-free children; and BE IT FURTHER RESOLVED, that the fourth Monday in September shall henceforth be designated National Family Day - A Day to Eat Dinner with Your Children. ADOPTED this 13th day of August 2003. COMMITTEE APPOINTMENTS LINDA SMITH APPOINTED TO SOCIAL SERVICES BOARD FROM OPEOUON DISTRICT Upon motion made by Supervisor Sager, seconded by Supervisor Douglas, Linda Smith, was appointed to the County Social Services Board for a four year term. The term will begin on August 13,2003, and expire on June 30, 2007. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye ENDORSEMENT OF NORTHWESTERN COMMUNITY SERVICES' FISCAL YEAR 2004 PERFORMANCE CONTRACT - APPROVED UNDER CONSENT AGENDA Pursuant to HJR 428 legislation, each locality is asked to review and endorse their area CSB's Performance Contract This document reflects allocated Federal, State and local funds, and other reimbursements to be received in order to carry out the work of their Board of Directors. REOUEST FROM THE FIRE AND RESCUE DIRECTOR RE: VIRGINIA DEPARTMENT OF EMERGENCY MANAGEMENT PROGRAM GRANTS AS FOLLOWS: (1) REQUEST FOR 2003 OFFICE OF DOMESTIC PREPAREDNESS EQUIPMENT PROGRAM GRANT: (2) 2003-H. OFFICE OF DOMESTIC PREPAREDNESS STATE HOMELAND SECURITY GRANT PROGRAM (RESOLUTIONS (#007-03 AND #008-03) - APPROVED UNDER CONSENT AGENDA REQUEST FROM THE COMMISSIONER OF THE REVENUE FOR REFUNDS - D.L. PETERSON TRUST & MOORES LUMBER/BLDG SUPPLIES - APPROVED Administrator Riley presented this request to the Board advising the request was as follows: Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 035 D. L. Peterson Trust in the amount of $4,046.36; Moores Lumber/Bldg Supplies in the amount of$4,429.78. Upon motion made by Supervisor Forrester, seconded by Supervisor Smith, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda 1. Tyler - Aye RESOLUTION (#009-03) RE: REQUEST BY SUPERVISOR DOUGLAS FOR SPEED LIMIT REDUCTIONS ON ALL NON HARD-SURFACED STATE ROADS IN THE COUNTY TO 35 MPH - TO BE FORWARDED TO THE GENERAL ASSEMBLY- PUBLIC HEARING REQUIRED - APPROVED Supervisor Douglas presented this request to the Board advising this would require an amendment to State Code Section 46.2-873.1 which will require legislation to be introduced in the upcoming session of the General Assembly. She further advised the Resident Engineer is also requesting a maximum speed limit on all treated secondary highways of 45 mph. This action would require the amendment of State Code Section 46.2-870. Upon motion made by Supervisor Douglas, seconded by Supervisor Reyes, a public hearing will be scheduled to consider the following resolution: WHEREAS, highway safety is a high priority ofthe Frederick County Board of Supervisors; and WHEREAS, highways with no posted speed limits present a danger to the motoring public; and WHEREAS, the policy by the Virginia Department of Transportation, if not otherwise posted, the speed limit is 55 miles per hour. NOW, THEREFORE, BE IT RESOLVED, the Frederick County Board of Supervisors hereby request that the Virginia General Assembly adopt a posted speed limit of35 miles per hour on all non hard-surfaced secondary roads in Frederick County, Virginia, pursuant to Virginia Code Section 46.2-873.1, and a maximum posted speed limit of 45 miles per hour on treated surfaced secondary highways pursuant to Section 46.2-870. BE IT FURTHER RESOLVED that a true copy ofthis resolution be delivered to Delegate Athey and Delegate Sherwood, and to Senator Potts. Adopted this 13th day of August 2003. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 036 Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda 1. Tyler - Aye RESOLUTION (#010-03) RE: CHANGES IN THE PRIMARY AND SECONDARY SYSTEM DUE TO RELOCATION AND CONSTRUCTION ON ROUTE 863 - EXTENSION OF TYSON DRIVE IN STONEWALL INDUSTRIAL PARK - APPROVED UNDER CONSENT AGENDA WHEREAS, the Virginia Department of Transportation has provided this board with a sketch dated July 9, 2003 depicting required changes in the Primary and Secondary Systems of State Highways, which sketch entitled "Changes in the Primary and Secondary Systems Due to Relocation and Construction on Route 863, Project 0863-034-244, N501," is hereby incorporated by reference; and WHEREAS, a new road identified in RED has been constructed to provide access on Tyson Drive Extended in the Stonewall Industrial Park utilizing industrial access funds and bonded by the County of Frederick by Resolution of Support, Resolution #020-01, dated December 12, 2001; NOW, THEREFORE, BE IT RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia, does hereby request that the Virginia Department of Transportation add to the Secondary System of Highways the portion identified in RED on the aforementioned sketch, pursuant to 33.1-229 of the Code a/Virginia, 1950, as amended; and BE IT FURTHER RESOL VED, that a certified copy ofthis resolution be forwarded to the Resident Engineer for the Virginia Departmcnt of Transportation. ADOPTED this 13th day of August 2003. UPDATE ON OPTIONS FOR VIRGINIA ASSOCIATION OF COUNTIES (V ACO) PUBLIC AWARENESS CAMPAIGN - BOARD TO BE KEPT UP TO DATE ON THIS REOUEST Assistant County Administrator Tierney advised information has been included within the agenda advising of the cost for advertising this information in the Winchester Evening Star He further advised that staff was also working with some used equipment from the schools to see if this information could be put on cable. Chairman Shickle asked if this information could possibly be ready by the next Board meeting? Supervisor Forrester asked if Supt. William Dean had been contacted about this request? Supervisor Tyler advised she had discussed this with Dr. Dean. The Board will continue to be updated on this request. COUNTY ATTORNEY LAWRENCE AMBROGI RENDERS OPINION ON THE UPDATE OF THE NORTHEAST LAND USE PLAN (NELUP) Administrator Riley advised that before the Board this evening is the response by the County Attorney with reference to the update of the Northeast Land Use Plan. He advised the Board this Minute Book Number 29 Board of Supervisors Regular Meetiug of 08/13/03 037 item was before them on June 11,2003, and as a result of that meeting, there was no action taken. Based on the provisions of the State Code, he asked the County Attorney to research that subject matter and he has responded this evening and is available to answer any questions. Chairman Shickle asked iftherewere any questions of Attorney Ambrogi? Supervisor Tyler, what is your pleasure? Supervisor Forrester, excuse me, Mr. Chair. Chairman Shickle , Supervisor Forrester? Supervisor Forrester advised she had some comments, but I don't have questions of Attorney Ambrogi. Chairman Shickle, advised her to proceed. Supervisor Forrester, advised that earlier today, this afternoon, she, Supervisor Reyes, Attorney Mark Stivers and the County Commonwealth Attorney, Larry Ambrogi met to discuss Attorney Ambrogi's August 5, 2003 written legal opinion for the Board, pertaining to a status update he would be giving the Board at our meeting this evening. Attorney Ambrogi provided this opinion in response to a July 21, 2003 letter he received from Administrator Riley. During our meeting this afternoon, specific questions were raised as to why it was in Attorney Ambrogi's legal opinion that Virginia Code Sections 15.2-2225,2226, and 2227 must be followed in regards to the update ofthe Northeast Land Use Plan. Per our discussion it was raised that Virginia Code Section 15.2-2229 pertains to amendments, when there is an existing Comprehensive Policy Plan or a portion of a plan already adopted. In this situation the Board of Supervisors previously adopted a September 22nd, 1999 version of the Northeast Land Use Plan, which is still in effect today. Clearly we are dealing with making an amendment to an existing plan. Sections 15.2-2225, 2226 and 2227 pertain in situations of an original adoption of a conference of policy plan, or a new portion of a plan, which has not been previously adopted. Virginia Code Section 15.2-2229 entitled, Amendments, states the following: After the adoption of conference of plan, all amendments to it shall be recommended and approved and adopted respectively as required by 15.2-2204. If the governing body desires an amendment, it may, excuse me, direct the local Planning Commission to prepare an amendment and submit it to public hearing, within 60 days after formal written requests by the governing body. In acting on any amendments to the plan, the governing body shall act within 90 days of the local Planning Commission's recommending resolution. I'd like to take this Code now, piece by piece. Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 038 The first sentence ofthis Code states that, after the adoption of a conference of plan, all amendments to it shall be recommended and approved and adopted respectively, as required by 15.2-2204. Section Code 15.2-2204 pertains to the advertisement and written notice of certain amendments, basically it pertains to public notification. Clearly on September 26, 1999 the County adopted the Northeast Land Use Plan; therefore, any changes to this amendment to existing portion, excuse me, therefore any changes to this would be an amendment to an existing portion of a plan; therefore, Section 15.2-2229 is on point, not Sections 15.2-2225, 2226 and 2227. If the governing body, desires an amendment, it may direct the local Planning Commission to prepare an amendment and submit it to the public hearing within 60 days after formal written request by the governing body. The body did choose to do this and we started the process to consider amending the Northeast Land Use Plan during the Board of Supervisors meeting held on June 12,2002. This was done in response to Supervisor Tyler's June 7, 2002 memorandum requesting a land use study. Ultimately the Planning Commission held and took action on this item at its May 21, 2003 meeting. Following this the Board of Supervisors held a public hearing on June 11, 2003 to consider an amendment to the Northeast Land Use Plan. Which leads us to the last sentence of Virginia Code Section 15.2-2229, which reads, in acting on any amendment to the plan the governing body shall act within 90 days ofthe local Planning Commission's recommended resolution. The first phrase begins with in acting, means that the Board has an option to act. The Board is not compelled to act, they have a choice. But if they choose to exercise this choice, according to the second phrase, which begins with, the governing body shall act within 90 days of the local Planning Commission's recommending resolution, means the Board, if in the first part decides to act on the amendment, then in the second part they must act within the time frame of90 days from receiving the local Planning Commission's recommending resolution. It does not mean that they have to specifically act on the local Planning Commission's recommendation, just as the Board has to take some action on this item, once it receives a recommendation from the Planning Commission. The significance of acting within the 90 day time frame, is just to say, Board, if you let this drag on longer than 90 days, you must go through the public notification process all over per Virginia Code 15.2204. Which brings us to the question, did the Board act? The answer is yes. Clearly the Board held a public hearing on this item and took the following actions at its June 11, 2003 meeting. Supervisor Tyler put forward a motion to adopt alternative three, which ultimately Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 039 died for lack of a second. Later Supervisor Forrester put forward another motion to adopt the hybrid of the Alternatives, which staff called Alternative B. Supervisor Forrester's motion received a second, and a five to two vote against, defeated the motion. Chairman Shickle asked if there was another Alternative action that the Board wanted to consider or should we now move forward on the agenda. When no motion was brought forward, Chairman Shickle stated, he takes it that the land use plan for now, for the time being stays as it is. Let me read that again. Chairman Shickle stated he takes it that the land use plan for the time being stays as it is. Clearly there's no question that this Board acted. The fact this Board's actions kept the Northeast Land Use Plan the same is irrelevant. The Board is not compelled to amend the Comprehensive Policy Plan, just act. This Board clearly acted within the 90 days of receiving the Planning Commission's recommendation. Virginia Code Section 15.2-2229 only states an action must be taken within 90 days of receiving this recommendation, not an action specifically on what the Planning Commission recommended. The Planning Commission is an advisory board, and the Board is not required to adopt or vote on their specific recommendation. State Code 15.2-2229 simply tells us that the Board must take some action within 30 days ofreceiving the Planning Commissions recommendation. The Board considered many alternatives at the June 11,2003 meeting, six of which were on display. Each Board member was given the paperwork to review for these scenarios. The Board's actions to not adopt any ofthese proposed Alternatives is not the same thing as not having taken an action. The Board can ask the Planning Commission to study and provide recommendations to change portions ofthe Comprehensive Policy Plan, and equally, the Board can decide not to adopt any of the recommendations the Planning Commission and/or Board members come up with. Respectfully I disagree with Attorney Ambrogi's legal opinion, which serves too open the door for another vote tonight. Another vote on a matter, which has already been properly disposed of by our Board on our June 11, 2003 meeting. This should not be brought before this Board for further action tonight, until Attorney Ambrogi has had time to clearly research this matter. In our meeting earlier this afternoon Attorney Ambrogi shared that he had not had time to seek the Attorney General's opinion, nor to research Section 15.2-2229, although that was included in the package of information he provided to Administrator Riley, for the Board members to review. Taking action that results in keeping the plan the same again, is not the same thing as in-action. The Board created an initiative to try to develop a better Northeast Land Use Plan from the current one, but through our actions on Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 I 040 June 11, 2003 . We, for the present demonstrated a consensus to keep the plan the same, rather than adopt any of the proposed alternatives that were before us on June 11 tho But because our actions have served to keep the plan the same, it does not mean we are in non cornpliance with State Code, which I'm sure will be clear to all involved after more study. All stakeholders should note that it would be wise to not take any further action as further clarification ofthe Board's legal counsel may be sought, rendering subsequent actions invalid. Chairman Shickle asked Attorney Ambrogi, ifhe stood by his opinion? Attorney Ambrogi replied yes, he did. After giving it a lot ofthought and consideration and revisiting again this afternoon, in the limited amount of time I've had. Chairman Shickle, okay, Supervisor Tyler, your district. Supervisor Tyler, yes, Mr. Chairman I think it's quite unacceptable for one thing, to leave this plan the way it is, where we have the industrial. I also find it highly offensive that we have modified Alternative B that has not been through the public process. So, I move for approval of Alternative 4 as an option for the Northeast Land Use Plan, with a modification that the urban development area does not encroach on the Second and Third Winchester Battlefields. Chairman Shickle, We have a motion. Do we have a second? Supervisor Sager seconded the motion. Supervisor Smith, Mr. Shockey, stay there, sir, Ijust wanted to address this to you. I have mixed use, believe mixed use is appropriate for the land in Stephenson. As you know, we met over a year ago regarding battlefield preservation and we've made a lot of progress. However, I still have some reservations about your plan for rezoning applications, with regard to density and basis. The potential changes we have discussed lately are embarrassing and I trust you will continue to address these issues prior to bringing the zoning before this Board. Chairman Shickle any other discussion or comments? Mr. Reyes. Supervisor Reyes, we're in the throws of voting on this again tonight. Playing the devil's advocate, if you will, what if we have the same kind of vote that we had on June 11, would this be considered a non action? Attorney Ambrogi, Are you talking about Ms. Tyler's motion? Supervisor Reyes Mm_hrnm. (Indicating affirmatively.) Attorney Ambrogi, if there was no second? Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 041 Supervisor Reyes, well, she's got a second. But what if, it's just obvious that you've got a 5- 2. Attorney Ambrogi 5-2 which way? Then you would have returned the plan, your reasons to the Planning Commission for denying the plan in writing; would that be getting consensus so Administrator Riley could draft a plan to the Planning Commission and say, we have denied the recommendation, we have not accepted or adopted your recommendation, here are the reasons. The purpose of that is to give the Planning Commission, which stands to reflect on it, and to consider the comments you all had and to make any corrections they feel appropriate. Supervisor Reyes, from my information, Attorney Ambrogi, that is only for a brand new comprehensive plan. Attorney Ambrogi, well, it's, I guess you're dealing with semantics, when it says already, part thereof. This is a part of the plan, the way I see it, that has been sent to the Planning Commission, sent back to you with these recommendations. Supervisor Reyes, Okay. On June 11 th the motion was for Option B and we got a second, but then it died on a 5-2 vote. Attorney Ambrogi, okay. That's the one Supervisor Forrester made? Supervisor Reyes, right, so, why weren't we advised that we had to advise the Planning Commission of our position or reasons why? Attorney Ambrogi, well, that was an invalid, and of course it caught everybody off guard, I believe. That was not one ofthe four plans, options that the Planning Commission recommended, that could not be considered. That would be invalid. It says in section, I think it's 15.1- 2204, I believe, you have to go through the, any amendment has to go through the same public hearing, advertisement, and so forth as the plan does. That was an amendment to the plan, at this meeting. But it wasn't talking about the Planning Commission, really the Board could not consider that because there was no public hearing on that, there was no advertisement ofthat, that was an invalid option. Supervisor Forrester, excuse me, Mr. Chair? Attorney Ambrogi, but that was not brought up at that time, you're exactly right. Nobody brought it up or mentioned it. It just sort of passed through and was defeated and I would imagine the Board thought, since it was defeated, there's no use considering it any further. But that was not Minnte Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 I 042 a valid amendment to the plan, because it didn't comply with the county requirements of 15.1-2204, which say that an amendment that is right in the Supervisor's manual, amendments to the comprehensive plan are subject to the same requirements for advertisement hearings as the plan itself. Supervisor Reyes, well, with all due respect to you, Attorney Ambrogi, I feel that what was taken on June 11 is not an action. Attorney Ambrogi, the vote on Supervisor Tyler's amendment? Supervisor Reyes, I would say vote, but surely Supervisor Forrester's.. Attorney Ambrogi, I'm sorry, Supervisor Forrester's. Supervisor Reyes, Supervisor Forrester, she got a second and the Board voted, and that's an action. I don't see how... Attorney Ambrogi, It wasn't, this is my opinion, understand. Supervisor Reyes, Right. Attorney Ambrogi, I'm not a Circuit Court Judge. The Board has to take some action. The Planning, they have to say no to the Planning Commission recommendation or they have to say yes. Did they approve it? No. Supervisor Reyes, that's my opinion... Attorney Ambrogi, Did they disapprove it? No. The Planning Commission... Chairman Shickle, 1 would ask the audience to please be quiet and curtail your conversations. Attorney Ambrogi, this was a fifth alternative, presented by Supervisor Forrester at the meeting, that didn't go through any ofthe channels that Section 15.2-04 requires. It was an invalid motion. I don't think anybody realized that or brought that up at the time, but in researching this, and looking at the requirements, especially 22,29, that would've had to have gone through the same procedures and channels that the original plan went through, but it didn't, and that's why that wasn't an action. It was, there was a vote, but it was invalid, in my opinion now. Chairman Shickle, Supervisor Reyes, are you finished? Supervisor Reyes, No, I just have one last question for Attorney Ambrogi. Would it, in all due respect, would it be appropriate for you to seek further counseling from the Attorney General on this? Attorney Ambrogi, I mean, I could write for an opinion. I can tell you that there's no court Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13103 043 cases on this issue, that I could find. First of all, the unique statute for the Board is, you need to put it politely. There's no Attorney General opinions that I could find. I could request a new opinion and a written opinion would probably take a considerable amount oftime, based on my experience in getting opinions from the Attorney General just because of the huge number of requests for opmlOns. Supervisor Reyes, I feel that this vote tonight is inappropriate and I would like to have the benefit... Attorney Ambrogi, That's not my decision. It's fine with me. Chairman Shickle, Supervisor Forrester, did you have a comment? Supervisor Forrester, Yes, 1 have a couple comments. First, the Alternative # 4, staff you can help me with this. Was that advertised appropriately, Alternative 4? Staff? Director. Lawrence, whether it was advertised appropriately, that would be a legal issue. Supervisor Forrester, which person here can advise me as to who ran the ad, was the content of that ad proper advertisement for Alternative 4? Director Lawrence, (inaudible) advertised all alternatives. Supervisor Forrester, Staff maybe can help me with this. Did Alternative 4 come from the subcommittee, CCCP, as.... Director Lawrence, Not as, it came out of the discussion as a compound committee recommendation. Supervisor Forrester, so it never went before the public through the normal chain; correct? Director Lawrence Alternative 4 itself did not, the plan similar... Supervisor Forrester, Right. I also wanted to bring to the attention, staff, all the alternatives, when they went before the public, none of them originally had the DSA properly identified; is that correct? Director Lawrence did not have the DSA as the Board, adopted on the 28th. Supervisor Forrester, and so the Board was told that's okay, if the public doesn't see it like that, as long as it's correct before it comes to us, which seems like that would be a conflict of complying with the 15.2-2204 public notification, because the public never got to review the actual alternatives with the corrections prior to. Mr. Ambrogi, do you have any comment on that? Attorney Ambrogi, What is the question, about the advertisement of the plan? Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 Supervisor Forrester, no, the public, when they went out for the public to review, none ofthe maps had the DSA, which matched what the text in our comprehensive policy plan said. Attorney Ambrogi, Were they here on the night of the public hearing? Supervisor Forrester, Pardon me? Attorney Ambrogi, Were they here, these maps you're talking about, here on the night ofthe public hearing? Supervisor Forrester, they were not, public hearings for the comprehensive, for the Planning Commission. Was not. Attorney Ambrogi,: This is a whole new issue. I mean, I'd have to see the facts and the history of this. Supervisor Forrester, It's in the minutes of our meeting. Attorney Ambrogi, and the minutes and the documents in the planning office, to see what exactly was done, what was advertised and what was, that's a totally new issue that I was asked to give an opinion on. Something that's that unique is a little different than on the spur ofthe moment Supervisor Forrester, well, it just seems that... Attorney Ambrogi, And I'd like to be correct, as close as possible. Supervisor Forrester, your opinion to Supervisor. Reyes a moment ago was that it would have to go in 15.2-2204 to be careful that we advertise appropriately, but yet we have not advertised appropriately and sent the right maps to the Planning Commission's public hearing, so it seems to be a conflict in your advice to the Board and to the Planning Commission. Attorney Ambrogi, well, some of the facts that you state, I don't know if they're correct or not. I just gave you an opinion, or Administrator Riley an opinion on what I was asked about. I assume that everything is done correctly, as far as the advertising of the public hearings, but I've found that this county govemment has always been very, very diligent in making sure they comply with the statutory requirements as far as notice and as far as public hearing. In my experience they've, they've really never made any mistakes in that regard. And Ijust assume that they're correct. I don't get involved in that part of the process. Supervisor Forrester, respectfully, Attorney Ambrogi, you were here during that meeting when we discussed this issue and a concern was raised by the Board, that the maps were to stay on the time table for the scheduled meeting with the Planning Commission, that they were going to be Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 045 looking at maps that were not correct. And it was stated, it was okay that staff would have those maps corrected by the time it got back to the Board for our public hearing. Attorney Ambrogi, that probably was, if you say it was said, I'm sure I don't remember that. I'm not saying it didn't happen, Ijust don't remember all this dialogue without looking at the minutes. Supervisor Forrester, I'm wondering ifmaybe... Attorney Ambrogi, You're asking questions that are just difficult to answer, especially when there's been no forewarning, there's been no... Supervisor Forrester, well, Attorney Ambrogi, I did meet with you earlier this aftemoon and I asked you respectfully that we could withdraw this item until you've had more time to research the Issue. Attorney Ambrogi, that's your all's prerogative, whatever you do is fine with me. Supervisor Forrester, well, I was under the understanding that the reason this was on our agenda tonight was because you were coming to us with your opinion and to update us on the status. As far as I can tell by the paperwork in my packet, no Board member initiated this. And so, that's why I'm directing my questions to you. Attorney Ambrogi, I was asked for an opinion by Administrator. Riley. As County Attorney I work for Administrator Riley. He asked me for an opinion and I gave him one, to the best of my ability. Supervisor Forrester, Administrator Riley. Attorney Ambrogi, and doing some research and consulting with the... Chairman Shickle, Let me intercede here, please. Supervisor Smith, Supervisor Douglas, Supervisor Tyler and I attended the Planning Commission when the rezoning was there. And it was evident to us, but not collectively, okay, that the Planning Commission felt that we had not given them advice or taken an action and indeed it appeared to me that the public felt likewise. So, I spoke to Administrator Riley about..... in his opinion, this matter finished or in limbo and he requested an opinion from Attorney Ambrogi, because he said, I would rather get legal advice. So, I did playa role in the request, but I did not specifically ask Attorney Ambrogi for an opinion. So, a Board member did playa role insofar as I did. Supervisor Forrester, okay, just wasn't identified in our information we received that you did bring that forward. I'm just concerned at what the rush is to get this through without these resolved Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 04 questions. Attorney Ambrogi, you stated earlier this afternoon that you had not fully been able to research this, that you were unaware of 15 .2-2229, although it was in the package of information that was provided to Board members and that you weren't clear on these issues because there hadn't been a lot of precedence set. Attorney Ambrogi, no, that's not, I did say, I... Chairman Shickle, hold it, please. Attorney Ambrogi. Supervisor Forrester, right. Chairman Shickle, I think we need to let some of the other Board members speak. Supervisor Forrester, excuse me. I haven't relinquished the floor. Chairman Shickle, Supervisor Forrester, you've been speaking for quite a long time. Supervisor Forrester, this is a very important issue. Chairman Shickle, I'd like the other Board members, please, to have a chance to talk. Supervisor Forrester, I will respectfully allow for that, as long as it returns to me. Chairman Shickle, It will be returned to you, once everyone else has a chance to speak. Supervisor Forrester, Thank you. Chairman Shickle, other Board members would like to say something? Supervisor Sager, I have a comment, Mr. Chairman. Supervisor Sager, Somewhere I think the other Board members were left out of this conversation, so it's very difficult for me to second guess. I think it puts, you know, Board members in a position where we weren't a part or privy to the conversations, so we can neither defend or, you know, support some of the conversations. Chairman Shickle, what conversations, Mr. Sager? Supervisor Sager, between evidently Attorney Ambrogi and Supervisor Forrester and Mr. Stivers and Supervisor Reyes. So, you know, it's sort oflike, you know, hearing a conversation that went on and I'm not so sure that it's a conversation that everyone should've heard, as opposed to a few. I think we would be better prepared, you know, to discuss this issue, as if we were to object to moving forward here. We didn't hear what went on, so you know, my second on the motion still stands. Chairman Shickle, Supervisor Smith, any comments? Supervisor Smith, yes, sir. There seems to be a question here and I don't want to linger like Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 047 the cancerous tumor. Attorney Ambrogi, if we turned this over to you to get the answers that, to the questions that Supervisor Forrester has asked, about how long would it take, in your estimation? Attorney Ambrogi, I could keep on searching for cases, case law that doesn't exist. When you're looking for something that's not there, it takes you a lot longer. Ifthere's cases out there, you can find them rather quickly, with the use of computers and case law finder. There's no Attorney General opinion that I can find that addresses this sufficiently, that gets even close. Supervisor Smith, some, might, could? Attorney Ambrogi this would, be a first, this would probably be a matter of first impression for the Attorney General's office, if! were to request a written opinion. Supervisor Smith, but who would receive that, would it come back here or where? Attorney Ambrogi, I don't know, they have hundreds of attorneys down there. I have no idea who would receive, Frank Ferguson is who I used to deal with on County matters, but I don't know ifhe's still there anymore. Supervisor Smith, well, I think we all want to get this behind us. It's going on and on and on, but I want to make sure that we go ahead legally, consequently Mr. Chairman, is this floor open to a motion? Chairman Shickle, I believe we have a motion and a second. Supervisor Smith, I'm talking about the setting it back 60 days until Attorney Ambrogi can get us written opinions of the Attorney General's office. Attorney Ambrogi, Supervisor Smith, it's doubtful I'll get an answer in 60 days, unless things have changed drastically down there, but they've been under the same budget cuts and problems as everybody else in State government, probably don't have the staffthat they used to. It's been several years since I've asked for an opinion, and I know how long it took then. Supervisor Smith, 90 days? Attorney Ambrogi, It could be done in that, I just don't know what their case load, backlog is like. Supervisor Smith, Mr. Chairman, you know how I feel about it, I don't want any questions about this. Chairman Shickle, Attorney Ambrogi, ifthis Board had voted on Option 4 up or down at that meeting, would there have been any legal question? Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 Attorney Ambrogi, Not in my opinion. If you voted no, like I say, 5-2 no, then the only thing you would've had to have done is put your reasons for the denial in writing, so Administrator Riley could send it to the Planning Commission with the consensus ofthe Board as to the reasons they're denied. And the reason they have to look at the list, if you ask them to spend hundreds and hundreds of hours and I don't know how much money you're asking them to hold public hearings and asking the Planning Commission, maybe members who are doing this gratuitously for the most part and other citizens to do this for you, and in my opinion you owe them to either deny it or approve it. If you deny it, and that's what the Code says, tell them why you denied it. Chairman Shickle, It is hard for me to understand why within the 90 days it's not okay for the Board to vote on this issue tonight and it was okay at that meeting. It's very hard for me to understand, which I think is what your opinion basically says. Attorney Ambrogi, you could've voted on it at that last meeting. Chairman Shickle, yes, and you get 90 days and so, I personally have trouble understanding why it is not okay to vote tonight on this. Attorney Ambrogi, well, I didn't say it wasn't okay to vote tonight, that's up to you all. Chairman Shickle, Supervisor Smith that would be my opinion, but let's let Supervisor Douglas, and then let's see where we go. Supervisor. Douglas, do you have a comment? Supervisor Douglas, well, I think we have discussed and discussed and discussed this enough. I'm ready to move on and vote on the motion. Chairman Shickle, okay, now, Supervisor Forrester, you said you wanted to speak again. Supervisor Forrester, yes, please. Respectfully to Attorney Ambrogi, we've been working as a County on this issue, this portion ofthe County for about four and a half years now. And so I'd feel more comfortable if we did get that written opinion from the Attorney General's office, to make sure that it's correct. Now, I'm not so certain that it would take that much time, that after the folks in the northeast area have been waiting four and a half years, I think another couple months isn't much to ask, to make sure it's correct. Otherwise, this County could end up in a lot ofIitigation that can drag on even more than a few months with the Attorney General's written opinion. Respectfully, some of the members of the audience are probably not aware why this is just coming up this afternoon and Supervisor Sager, in deference to your remark, the packages that are given to the supervisors, we only see the content Friday afternoon or Saturday morning, and then most of us, if Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 049 we open it up Sunday or Monday, and that's what happened in my case. I looked at mine Sunday afternoon and it was the first time I realized this was coming back to the Board. Ever since then I've been working diligently, trying to research this, because I'm frankly very surprised that we're voting again on a issue that we've already properly disposed of at our June 11 th meeting. The meeting that we held today was very impromptu with Attorney Ambrogi. I contacted him late last evening, you can't have more than two Board of Supervisors in the room, as you well know, without it requiring some sort of notice and let the press come. So, I'm sorry, I couldn't include everyone, but Ijust went ahead and did it, so that I would be as informed as I could be, prior to tonight's meeting. Chairman Shickle, Supervisor Sager. Supervisor Sager, in answer, Supervisor Forrester, I don't hide anything from the press unless it's a matter which needs not to be disclosed to the public. I would've been more in favor of inviting the press and having, ifthere was some dialogue that needed to be shared with all ofthe Supervisors, I would've certainly made myself available for that. And I don't care how quick the notice, but I think we all need to know what information was shared and questions asked and the answers received. You know, I think that's only fair. I don't think, if we're discussing the issue here, so what would prevent us from inviting the media in to hear the same thing today that they're hearing tonight, if we haven't discussed anything different, I guess Supervisor Forrester, frankly, I was hoping we weren't going to have to have this public discussion on it this evening. I was hoping for some clarification ofthe State Code that was referenced in Attorney Ambrogi's legal opinion, and I was thinking there wasn't any need to update us, because he was going to reconsider and go back and look at the additional section that I pointed out, then we may not have been here this evening doing this. Supervisor Sager, Ijust have one other comment, in may, Mr. Chairman. In my 12 years of tenure on the Board, Attorney Ambrogi has given many legal opinions and I have accepted his opinions with the expertise that he gives it, sir, and I will certainly accept his expertise and interpretation of what is appropriate that this Board should do and will support that, and therefore stand ready to move forward with the motion. Chairman Shickle, Supervisor Smith, Supervisor Douglas, Supervisor Reyes, Supervisor Tyler, your turn, if you have anything you'd like to add? Supervisor Tyler, Mr. Chairman? I just have, to me it was very clear on the State Statute, if Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 050 you look at the Supervisor's Manual, they take all the technical out of it, and it's very clear what we're supposed to do. The motion that failed, to me, shouldn't have been before this body, because it didn't have a public hearing, it didn't have the public process. My motion, that I put forward, never was owned by this body. We still have not acted on this plan, that is my personal opinion. For the plan to be voted on, that hasn't been through the public process, doesn't deserve a vote. My motion did not belong to this body as well. We have not addressed any of the four plans that were out for proper advertisement and before the public. Chairman Shickle, anyone else? Supervisor Forrester, May I speak again? Chairman Shickle, only if Supervisor Smith, Supervisor Douglas and Supervisor Reyes don't have any comments. All right, Supervisor Forrester. Supervisor Forrester, I wanted to kind of jog some memories here. Before I put this map up I was really clear before anything went to the Planning Commission, in saying, if we come up with a hybrid, you know, pieces of each one of these plans, will the Board, even though it doesn't go before the Planning Commission for public hearing, will the Board be able to vote on it when it returns to us, so that if we take portions of it, and r was told yes and that's in our minutes from our previous meetings, the title, Alternative B was just, I think developed by staff, because we were trying to come up with a way to clarify it, instead of saying, Alternative B, which is this portion of Alternative 1, that portion of Alternative 3, this portion of Alternative 2. Because what Alternative B is, is a hybrid of various portions ofthese plans, all of which were seen before the public. So, I just want to make sure that you're aware of that. So, I don't really think that's an issue, I think Alternative B clearly belongs up there. Chairman Shickle, Mr. Smith? Supervisor Smith, excuse me, Supervisor Tyler, you just cleared something for me, that should've been clear to me earlier. That you made the motion, you got no second, so there was no action. It is zero. Supervisor Tyler, It was not owned by the body. Supervisor Smith, that makes sense. Mr. Chairman, on the basis of this, I call for a vote. Chairman Shickle, all right. Now, we won't limit debate, unless everyone is finished. If you all limit debate, then we'll have to vote on that. So, does anybody have...ready to vote? Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 051 Supervisor Forrester, No. Chairman Shickle, Supervisor Smith has made a motion to, the call, the question is, is there a second to that? Supervisor Sager, second. Chairman Shickle, second by Supervisor Sager. Let's vote on that, to stop debate. Supervisor Tyler, Nay Supervisor Reyes, Nay Supervisor Douglas, Aye Supervisor Smith, Aye Supervisor Sager, Aye Supervisor Forrester, Can you restate the motion? Chairman Shickle, this is a motion to stop debate. Supervisor Forrester, oh, I'm sorry, I thought he was making a motion to move forward. Okay. Nay. Chairman Shickle, okay, Chairman votes yes. So, the debate is over, we'll vote. Supervisor Tyler. Supervisor Forrester, excuse me, would you restate the motion, please? Supervisor Tyler, to adopt Alternative 4 in reference to the Northeast Land Use Plan, with the urban development area not encroaching on the core Second and Third Winchester Battlefields. Supervisor Tyler - Aye Supervisor Reyes - Nay Supervisor Douglas - Aye Supervisor Smith - Aye Supervisor Sager - Aye Supervisor Forrester - Nay Chairman Shickle - Aye, and the motion passes. COMMITTEE REPORTS PARKS AND RECREATION COMMISSION - APPROVED UNDER CONSENT AGENDA The Parks and Recreation Commission met on June 17, 2003. Members present were: Charles Sandy, Cheryl Swartz, Robert Hartman, Victoria Keelon, John Powell, Joyce Duvall, Clarence Haymaker. Submitted for Board Information Only: New Business: Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 05 1. DOl!wood LandinI! Develonment Pronosal: (a.) Item I - Rerouting of Land grant Lane - Mr. Hartman moved to recommend the developer be required, as a condition for approval by Frederick County, to acquire the 25' by 929' section of Landgrant Lane that is contiguous with their property and to compensate the county according to the requirements of the Land and Water Conservation Fund guidelines, second by Mr. Powell. Motion carried 6-0 (Sandy abstained). (b.) Item 2 - Donation of 1.25 acres of land contiguous to Sherando Park - Mr. Powell moved to accept item 2, as written, in conjunction with Item 1 as stated in Memorandum to the Parks and Recreation Commission from Jim Doran, dated June 10,2003, second by Mr. Hartman. Motion carried 6-0 (Sandy abstained). (c.) Item 3 - $20,000 Donation from Developer in lieu of completing a required recreational unit. Ms. Duvall called for a motion to accept the proposed donation. Mrs. Keelon moved to accept the $20,000 donation to be used for capital development within Sherando Park, second by Mr. Powell. Motion carried 6-0 (Sandy abstained). (d.) Item 4 - 8' paved foot path provided by the developer connecting to the 10' bike/pedestrian path in Sherando Park. The path would also serve as an emergency/exit and would be gated. Mr. Hartman moved that the berm not be broken and that the lO'access path to the park move to the northern end ofthe berm and connect with the bike trail, second by Mr. Powell. Motion carried 6-0 (Sandy abstained). Note: All of the above recommendations have been forwarded to the Planning Department for reVIew. 2. Policv Revisions (County Vehicle Use Policv) - Mr. Haymaker moved to approve changes to the policy, second by Ms. Duvall, carried unanimously (7-0). PUBLIC WORKS COMMITTEE The Public Works Committee met on Tuesday, August 5, 2003, at 8:00 a.m. All members were present. The following items were discussed: ***Items Requiring Action*** 1. Sunnlemental Appropriation Request - Inspections - Approved The committee reviewed and endorsed a supplemental appropriation request in the amount of$35,000 to be applied to the Building Inspections' budget. The attached memorandum from Mr. John Trenary, Building Official, dated July 31, 2003, provides the justification for this request. (Attachment 1) Upon motion made by Supervisor Tyler, seconded by Supervisor Smith, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda 1. Tyler - Aye 2. Review Results ofManufacturin~ of Street Name Sil!ns RFP - Ann roved Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 053 The committee reviewed the results ofthe street sign RFP and recommended that Shannon- Baum Signs, Inc. be awarded the contract to furnish street signs for the current fiscal year. The attached memorandum dated August 4,2003, summarizes the results of the RFP. (Attachment 2) Upon motion made by Supervisor Tyler, seconded by Supervisor Smith, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye 3. Rescind Bond ReQuirement - Annroved The committee unanimously recommended that the bond requirement previously approved for landfill accounts be rescinded. This action was previously approved by the board of supervisors in conjunction with alternative payment methods such as credit cards, check cards, etc. These alternative methods of payment including personal checks will remain in place to accommodate infrequent users. Upon motion made by Supervisor Tyler, seconded by Supervisor Smith, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye ***Items Not Requiring Action*** 1. Discuss Sellin!! Surnlus Land at Bass Hoover Elementary School The committee reviewed the disposition often (10) acres of surplus property located adjacent to the Bass Hoover Elementary School (Refer to the attached plat.) After discussing this issue at length, it was decided to contact other departments/agencies to determine if there is a need for this property within the Frederick County government. Responses from this inquiry will be evaluated prior to proceeding with any other action. (Attachment 3) 2. Discuss Proposed Personnel Chan!!es The Director of Public Works indicated that recent advertisements to fill the vacant Shawneeland Sanitary District Manager's position have been fruitless. In fact, the personnel office had extended the advertisement area to include Cumberland, Maryland which has a very high unemployment rate. However, these efforts have not yielded any qualified candidates. Consequently, the director presented two (2) alternatives to meet the current and future needs ofthe sanitary district: Alternative #1 : Utilize Mr. Dave Burleson, current engineering technician and past Shawneeland Sanitary District Manager, to serve as a part-time manager performing duties related to personnel Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 I 054 management, budget preparation, and short-and long-term planning. This alternative would require creating a new position, project manager, to incorporate these duties as well as many of the duties he currently performs under the engineering technician position. In addition, this action would require a transfer of funds into the engineering budget from the Shawneeland budget to off-set the additional cost of the reclassification as well as to hire another inspector to perform some of his current duties. An exact amount has not been determined to date. In conjunction with this action, the director recommended that the civil engineer position be upgraded to a deputy director position to accommodate some of the responsibilities of the engineering technician as well as supervision ofthe environmental inspectors and recently inherited gypsy mothlbiosolids coordinator. Additional personnel action would include creation of an Operator I position in Shawneeland and an environmental inspector II position within the engineering budget. It is anticipated that all of these changes can be made by transferring funds between these two budgets. Increases in the engineering budget would be offset by revenue generated from funds within the Shawneeland budget. Alternative #2: This alternative would require reclassifying the manager's position with a resulting higher pay range. Preliminary inquiries of a similar management position at The Summit indicate starting salaries in the $50,000 to $65,000 range compared to our current starting salary of $32,000. In addition to the obvious disparity in salaries, attracting qualified personnel remains a very real problem when competing with the local construction community. After discussing this issue at length, George Ludwig made a motion to pursue alternative # 1 indicating that he believed that this alternative would provide the most stable and economical approach. The motion was seconded by Lynda Tyler and unanimously endorsed by the committee. Mr. Ludwig made a second motion to evaluate the sanitary district fees in the upcoming budget process. This evaluation may result in an increase in the annual sanitary district fees. The motion was seconded by Jim Wilson and unanimously approved by the committee. 3. Miscellaneous Reports a) Tonnage Report (see Attachment 4) b) Recycling Report (see Attachment 5) c) Animal Shelter Dog Report (see Attachment 6) d) Animal Shelter Cat Report (see Attachment 7) PUBLIC HEARING PUBLIC HEARING - OUTDOOR FESTIVAL PERMIT REOUEST OF CONCERN HOTLINE. INC. - KING OF THE WINGS FESTIVAL. PURSUANT TO THE FREDERICK COUNTY CODE. CHAPTER 86. FESTIVALS: SECTION 86-3 C. PERMIT REOUIRED: APPLICATION: ISSUANCE OR DENIAL: FOR AN OUTDOOR FESTIVAL PERMIT. FESTIVAL TO BE HELD ON SATURDAY. AUGUST 30. 2003. FROM 11:00 A.M. TO 8:00 P.M..ON AN EIGHT ACRE OPEN PARCEL ON AIRPORT LANE. PROPERTY OWNED BY HAZEL PRUITT. WINCHESTER. VIRGINIA - APPROVED Stephen PettIer, Jr., President of Concern Hotline, Inc., appeared before the Board on behalf of this request. There was no public comment. Upon motion made by Supervisor Smith, seconded by Supervisor Reyes, the above request was approved by the following recorded vote: Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 055 Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye PUBLIC HEARING - OUTDOOR FESTIVAL PERMIT REOUEST OF ALAYA WHITE/WILLOW GROVE. L.L.c, - LOCAL MOTION FESTIVAL. PURSUANT TO THE FREDERICK COUNTY CODE. CHAPTER 86. FESTIVALS: SECTION 86-3C. PERMIT REOUIRED: APPLICATION: ISSUANCE OR DENIAL: FOR AN OUTDOOR FESTIVAL PERMIT. FESTIVAL TO BE HELD ON SUNDAY. AUGUST 17.2003. FROM 1:30 P.M. TO 8:00 P.M.. ON PROPERTY OWNED BY WILLOW GROVE. L.L.C.. 750 MERRIMAN'S LANE. WINCHESTER. VIRGINIA.- APPROVED Alaya White appeared before the Board on behalf of his request. There was no public input. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda 1. Tyler - Aye PUBLIC HEARING - PROPOSED AMENDMENT TO THE FREDERICK COUNTY CODE: CHAPTER 155. TAXATION: ARTICLE III. SENIOR CITIZENS AND DISABLED PERSONS EXEMPTION: SECTION 155-18. QUALIFICATIONS FOR EXEMPTION: PARAGRAPH E 0). GROSS COMBINED INCOME: AND SECTION 155-20. CALCULATION OF AMOUNT OF EXEMPTION. THE PURPOSE OF THIS PROPOSED AMENDMENT IS TO PROVIDE INCREASED TAX RELIEF FOR OUALIFYING ELDERLY AND PERMANENTLY OR TOT ALLY DISABLED PERSONS ON REAL ESTATE TAXES IN THE COUNTY - APPROVED Administrator Riley presented the proposed amendment to the Board. David Hurd, Stonewall District, does not feel the Board has gone far enough, feels it should be raised more. Upon motion made by Supervisor Reyes, seconded by Supervisor Sager, the following amendment was approved: BE IT ORDAINED, that Chapter 155, Taxation, Article III, Senior Citizens and Disabled Persons Exemption; Section 155-18, Qualifications for Exemption; Paragraph E (1), Gross Combined Income; be amended to read as follows: ~155-18 E. Gross combined income. (1) The gross combined income from all sources of such claimant owner or owners of such Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 056 dwelling living therein and of their relatives living in such dwelling for the immediately preceding calendar year does not exceed the sum of $30,000 $50,000 in the case of exemption claimants, provided that the first $7,500 of any income received by any claimant owner as permanent disability compensation shall not be included in such total, and provided that the first $6,500 $8,500 of income of each relative, other than spouse of such claimant owner or owners, who is living in such dwelling shall not be included in such total. BE IT ORDAINED, that Chapter 155, Taxation, Article III, Senior Citizens and Disabled Persons Exemption; Section 155-20, Calculation of Amount of Exemption; be amended to read as follows: ~ 155-20. Calculation of amount of exemption. The amount ofthe exemption granted pursuant to this article shall be a percentage ofthe real estate tax assessed for the applicable taxable year in accordance with the following scale: Total Combined Income Percentage of Exemption $ 0 to $ 10,000 $20,000 $10,001 $20,001 to $14,000 $25,000 $14,001 $25,001 to $l7,000 $30,000 $17,001 $30,001 to $20,000 $50,000 100% 95% 60% ~35% 7fJ%10% Upon motion made by Supervisor Reyes, seconded by Supervisor Sager, the above ordinance amendment was approved by the following recorded vote: Richard C. Shickle - Aye Robert M. Sager - Aye Sidney A. Reyes - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Margaret B. Douglas - Aye Lynda J. Tyler - Aye PLANNING COMMISSION BUSINESS PUBLIC HEARINGS PUBLIC HEARING - PROPOSED AMENDMENT TO THE FREDERICK COUNTY CODE: CHAPTER 165. ZONING ORDINANCE: ARTICLE VII. R4. RESIDENTIAL PLANNED COMMUNITY DISTRICT: SECTION 165-72. DESIGN REQUIREMENTS: PARAGRAPH O. OTHER REGULATIONS. TO ALLOW MODIFICATION OF ORDINANCE REQUIREMENTS FOR GREATER DESIGN FLEXIBILITY IN THE R4 DISTRICT - APPROVED Assistant Planning Director Mohn presented this request to the Board advising this public hearing is for a proposed amendment to the Frederick County Code, Chapter l65, Zoning Ordinance, Article VII, R4, Planned Residential Community District; Section 165-72), Design Requirements; Paragraph 0, Other Regulations. This is structured to encourage applicants to develop innovative development programs, intended to maximize the benefits of planned development, specifically enabling the mixing of housing types and choices and the integration of land use. The ordinance provides a framework of development that defines the essential components of a planned residential Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 057 community, which are expressed through regulatory schemes designed to ensure realization of a sustainable community where one can live, work and play. Although staff perceives this existing regulatory framework to be an appropriate means of implementing the planned community concept, it is acknowledged that additional flexibility may be needed by some applicants to facilitate attainment ofthe unique vision. As currently written, the R4 district and its exemptions or waivers to ordinance requirements, to only those provisions governing dimensional standards oflandscape and buffering. An alternative method therefore would be necessary to provide an R4 applicant with additional flexibility to pursue design innovations not contemplated by current ordinance. As an option, an amendment to Article VII has been proposed that would provide opportunities for modifications to ordinance provisions applicable for planned residential communities. Through this approach, an applicant for R4 zoning would be allowed to seek modifications to any provision of the Code impacting physical development. The applicant would be required to provide justification for a request to include a proposed alternative or modified standard in lieu of the ordinance requirement for which the modification is being sought. The applicant would further be expected to identify the need or role of the alternative standard in the overall design concept. A blanket waiver or exemption would therefore not be permitted. The proposed modification process would occur as a component of an R4 rezoning application, following Planning Commission review the Board of Supervisors would consider each modification request included with an application on its merits, pursuant to the applicant's justification. If accepted, the alternative or modified standards would be included with the proffered statement, as conditions of the rezoning approval. It is important to note that this amendment would not obligate the Board to grant the requested modification. Indeed this provision would merely allow an R4 applicant to request modifications through the rezoning process, with the Board retaining full authority to accept or deny a request based on the applicant's justification and the analysis and recommendation of the Planning Commission. Staff would note that it is common practice in jurisdictions that employ some form of planned community zoning, to permit an enhanced waiver modification opportunities through the rezoning process. The proposed amendment would enable a modification process consistent with those used in other jurisdictions. The Planning Commission did hold its public hearing regarding the proposed amendment at its July 16th meeting. Public comment was received with concern expressed that modification approvals may be precedent setting. Concern was also expressed Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 058 regarding the inclusion of modification requests for Stephenson Village rezoning applications. The Planning Commission generally approved the modification process, enabled by the proposed amendment, although some were concerned that the language had not bee reviewed through the committee process prior to public hearings. However, it was acknowledged by a majority of the commissioners that the proposed modification process offered a reasonable method for enhanced design flexibility in the limited context ofR4 zoning. Commissioners also noted that modifications would only be possible with Board approval, thereby ensuring public scrutiny and legislative control. It was suggested that the provision be clarified and ensure that the Planning Commission would review and offer a recommendation concerning modification requests prior to the Board of Supervisors consideration. Therefore, by majority vote, the Commission recommended approval of the proposed amendment, with the proposal that the Board include language clarifying the advisory role of the Planning Commission with modification requests. The proposed amendment is being presented as a public hearing item this evening. It's noted that should the Board support this amendment, a motion for approval should specify inclusion of the Commission's recommended language addition, if deemed appropriate. A copy of the proposed amendment that reflects the proposed language addition has been provided for your reference. Chairman Shickle advised he was at the Planning Commission meeting. He does not think the change that has been made, as he reads it, accurately depicts what you're trying to achieve minute. He knows the Planning Commission had an interest in having approval or disapproval requests come through them, and he thinks that was their intent. The way this reads, it almost looks like the Board cannot act except upon recommendation from the Planning Commission. And he does not think that's what your staff meant, but he is not sure if it gets the message that they wanted to get across. You can approve it if they recommend it, you could disapprove ifthey recommended, that's not what he thinks they meant. He thinks they meant they just wanted it to come through them. Assistant Mohn, advised much as it would go through the standard rezoning process, that the modifications would follow. They were seeking simply clarification that they wouldn't be left out of the process. Chairman Shickle advised he would like the other Board members to give their opinion on what they think this says. He knows what staff meant for it to say and it was a good faith effort here, but he is not sure they achieved their goal. So, what can we do with it? Supervisor Forrester, Would you please reference, bring me to where you are on the page? Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 059 Chairman Shickle, it was the last comment on page two, bottom of page two. Chairman Shickle asked Administrator Riley for a little help here for planning staff. Administrator Riley, the broad... Chairman Shickle, there is no difference of opinion here, it's just how you say it. Administrator Riley, the broad print, I'm assuming that you passed out tonight all the amended text the Board of Supervisors may approve or disapprove, such requests in full or in part with recommendation from the Planning Commission? Assistant Mohn, correct. Administrator Riley, Isn't that the normal procedure anyway? Assistant Mohn, yes, sir, it is. Chairman Shickle, my question is, what if they didn't make a recommendation on a approval or disapproval of a request? I don't want the Board to only be able to react to what the Planning Commission sends it. I want it to have the freedom to disagree with the Planning Commission basically. Administrator Riley, well, the Planning Commission, in my memory, has either sent a recommendation to the Board that was an approval, denial or I think very rarely they have sent recommendations to the Board with no action. But I don't recall, do you, Kris? Assistant County Administrator Tierney, Not offhand. I'm thinking out loud. Would it help to say, following review by the Planning Commission? Supervisor Tyler, yes, that would do it. Chairman Shickle, and maybe I'm worrying over too much. Supervisor Tyler, she thinks he is very clear, I was the Board liaison at that meeting, and that definitely was their intent, not that we can only act on it. They just wanted to be able to review and comment. Assistant Mohn, certainly, and this language is a reflection of what the zoning ordinance, where the process proceeds through the Commission, much like Administrator Riley was saying. That's a clarification. Chairman Shickle, now there's no change in intent here, but clarification of words. Can we proceed with action here, Administrator Riley? Administrator Riley, I believe you can, as long as it doesn't change the intent of the proposed Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 I 060 ordinance. Chairman Shickle, we can deal with that in a motion, after public hearing. Administrator Riley, correct. David Hurd, Stonewall District, is fundamentally opposed to making this modification, probably not for the reasons you might think. The R4 zoning, which you have in your Code, was put there, I'm sure, after long debate and great deliberation on the parts of staff and the Supervisors in place at that time. The requirements of the R4 zoning for a planned community development are onerous, they're there for a particular reason to guide developers and to help you. If you open the door to allowing requests for modification, without incorporating very specific guidelines as to how you will deal with those requests. You're opening the door to Pandora's box. We would see developers following developers, using your individual approvals of specific wording as precedent and soon the entire Code, the R4 zoning that was there, very carefully designed to put the opus on the developer to properly format and to come up with the plan that would bring forth a community that would pay for itself and this function, would be lost. You lost the entire zoning intent by opening it up. Diane McMillan, Opequon District. If the R 4 residential plan urban development ordinance is so faulty that a developer needs nine modifications to do it, something is very wrong with the way this County is being run. We are setting a horrible precedent that will open the development floodgates. Once these modifications are approved, does that mean that any John Doe developer can come in here and have his way with Frederick County? No master development plan is necessary, no dedication of roads to VDOT, road buffers can be any size, not to require 40 foot. Setting this precedent is horrible and will open us up to untold lawsuits when we try to undo it later. R4 is the most deadly kind of development for Frederick County, done wrong, it means even higher taxes, more schools, congested roads, and worsening air quality than we already have. If the current R4 is faulty, rewrite the ordinance, don't set a bad precedent by allowing modifications. Pat Gochenour, Red Bud District, Citizen representative on Planning Commission asked the Board to say no to the proposed amendment to the Frederick County Code 165. I'd say no to any modification legislation, that would take away your right to review. Pam Kennedy, Gainesboro District, There is much that is incredibly disturbing in this horrendous proposal. Tonight we see especially by modification nine and Section IS, and I know Minute Book Number 29 Board of Supervisors Regular Meeting of 08113/03 061 you all are very familiar with the sections I'm referring to here, because it's so easily accessible to the ordinary person. We see a request by a developer that the County, its elected officials sign off on their rights. Their responsibility to oversee development and the consequences of it. To me this is the moral equivalent of allowing a one year old child to fend for itself. What happens? You as elected officials do not have the right to remove yourself from this oversight responsibility. Perhaps when you all ran for office, you didn't realize all that was entailed, who does? Preserve, protect, act within the interest of the citizens. These are your duties, not just a few citizens, all the citizens. If you cannot carry out your duties, if something personal is getting in your way, then abstain, leave, don't run again for political office, whatever, but people, the people are expecting you to do what they elected you to do. It is not the developer who tells us the people and you the peoples' representatives what to do. Who's wagging which tail here? It is your job to monitor, to control, not be controlled. Vote a resounding no to these modifications. George Sempeles, Red Bud District, stated all these previous speakers have come up, they don't want sprawl in Frederick County. But what this proposal is saying, we need clustered homes, we need planned communities and these changes to the Code will allow that. So, I really am baffled about their objections, because what you see in Frederick County and what you don't want to happen is to have a house here and 10 acres, a house up here with five acres, spread out all over Frederick County and picking up valuable agricultural land. So, if you have these clustered homes, if you have planned communities, this will allow these areas to be protected. Evan Wyatt, Red Bud District, feels we need to focus on the issue at hand, which is the proposed text amendment for R4 flexibility and I know traditionally the County has looked at opportunities for flexibility in their design standards, and that's really what this is doing. Ten years ago, there were two amendments added to the R4 for alternative design and those were done for a master planning process. I think the comments that Assistant Mohn made were appropriate in that what this action does is two things. Number one, the modifications document provisions solidifies the R4 by giving you the opportunity to present your vision and unique opportunities and design standards to the Board. He advised he has a difference of opinion, I don't think it takes any power away from the Board, as a matter of fact, I think it gives you more power, because the way the ordinance is written, it daylights a public process, where it forces the developer and the designer to come to you with the rationale and reason as to why you're asking for a modification. You, as the Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 06 Board, have the power to take it or leave it. So, I'm not sure where you lose anything. The other thing that Mr. Mohn did not mention, but I think is important, is what this also does is it makes it much less taxing on your staff. The alternative is, if you like a vision and it goes through a standard ordinance amendment process, but what it requires your staffto do is to modify the particular section of the ordinance accordingly. So, the alternative here is every time there's something that comes forward that might be a nice idea, your staff is tasked with rewriting the ordinance or you could put the onus on the developer and the designer to bring you something, through a public hearing process, which gives you the opportunity to approve or deny. JeffRezin, Back Creek District, spoke in favor of supporting the amendment. I'd like to talk from an environmental perspective. Last week the Winchester Frederick County Air Quality Task Force met to discuss possible alternatives that could be implemented to support air quality improvements that might help lower ozone concentrations in the region. He specifically addressed the comments made by another speaker. Kathleen Henderson of the EP A Region III Compact Liaison stated that local communities participating in an action plan are required to make an investment in the strategies, because EP A is convinced that there are substantial damages to participate in the compact. The task before the committee at that time was to reduce the risk of possible strategies that could be reasonably considered and implemented, available resources and employable constraints would be used to identify the best measures. The expectation is that these strategies selected will assist Winchester Frederick County in achieving and maintaining the eight hour ozone standard by 2007. Katherine Whitesell, Stonewall District, addressed the cluster concept. This is what we all want to see in our PDR programs and clustering in that type of development can happen in the rural areas, but you usually don't bring the UDA out to make that happen in rural areas. So, you don't expand your UDA for clustering. Also, adding 20,000 trips per day to a rural area isn't clean air, I'm sorry. Okay, getting back to the, this public hearing, it was advertised in the newspaper. I immediately went and purchased a zoning ordinance book, a brand new one, and there was failure to adequately notify the public (inaudible). Not only do the people today not know that the land use plan was going to be taken up in action (inaudible) Stonewall District, but Article VII talks about a rezoning procedure and it refers not to the master development plan, but to an interstate overlay district. 165-68 it says, in order to have land rezoned to an R4 district, the master development plan Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 063 meeting all the requirements of Article 17, that is the interstate overlay district, not the master development plan. To the Economic Board, tonight I would say based on the fact you have a major error, before you amend this you need to fix that as well. Sam Lehman, Back Creek District, advised since 1932 when the U.S. Supreme Court first said, the U.S. taxed jurisdictions, with police power over the state, to enforce the zoning ordinance on property owners. Jurisdictions have formed categories, some for business, some for commercial, some for various types of housing, all this kind of thing. What this is saying for R4 is that this category is going to let whoever wrote the previous zoning solution, there are a myriad of solutions. I believe the idea of having limits well defined tells the property owner what's expected of him. Kevin Kennedy, (Inaudible) comments made by the previous speakers opposing any changes, he agrees with them and asked the Board not to mess with the plan. There are a couple ofthings that he would agree have a very confusing tone that goes along with all of this. But there's only 33 acres for commercial. How is this going to become a community, in which people live, work and play? Either they're going to live there, some are going to play there, hardly anybody is going to work there. This is looking more and more like just a huge housing development and that means commuters and how many. 2800?, 5,000 commuters? Where are they going to go? Route 7, Route II? Those are the only alternatives. I am very alarmed about the idea and I hope that you are also and I think it's kind of hidden in there. I surely hope that you know about this and take the development control out of your hands. Please don't do that. Attorney Ty Lawson, resident of Gainesboro District. Back to the issue at hand, the text amendment. There have been some concerns voiced that the individual rulings on the modifications made be precedent setting. I think Assistant Mohn was very clear when he pointed out, I think the text is very clear, the only precedent that is set by voting on this text amendment is that any request for modification must be put to the Planning Commission and the Board of Supervisors. It must be justified and it must stand on its own merits. The amendment before you takes what was previously a waiver process, purely administrative process and puts into the public hearing process. It puts the power where the power ought to be, in the hands ofthe public bodies, the Planning Commission and the Board of Supervisors, and accordingly, the text amendment should be approved. Susan Courneya, Stonewall District, just grabbing the last sentence of that gentleman's comment, he said it would bring it back into the public, well, what I've observed tonight was almost Minute Book Nnmber 29 Board of Supervisors Regular Meeting of 08/13/03 064 a nutshell game, with everything concerning this Board, of these boards behind you, what was approved, what was appropriately put in those boards at the time, so how can you act upon or expect the public to have knowledge and act upon those presentations, how is that giving the public back the power and to you all? It's a vicious circle and I think that the standards should be set and not changed and your control can probably be given away, if you keep allowing amendments after amendments. I'd just like you to keep that in mind, because it's a circus act. Please be careful. Supervisor Sager moved for approval. He advised that he thinks it needs to include the revised language; am I correct? Chairman Shickle, Unless he heard it wrong, it would be in part after review by the Planning Commission. So, would that be a motion? Supervisor Sager, yes Supervisor Douglas seconded the motion. Supervisor Smith, There's no question here (inaudible) new, revised, whether there's any power taken away from the Board of Supervisors; am I correct? Chairman Shickle, I'll try to answer for staff and ask them ifI'm incorrect. I believe it takes away from the staff approval process and turns it into a Board action public hearing; am I......Assistant Mohn, that's correct. Total authority for approval or disapproval would rest with the Board. Chairman Shickle, it does change it, before this it was staff. Supervisor Tyler, yes, I'djust like to bring a couple things forward. It seems to me that we're living in a vacuum these days and staff isn't trusted, Board of Supervisors isn't trusted. It's absolutely amazing. I attended a meeting that was called to discuss these modifications. It was originally discussed as waivers. That meeting included Administrator Riley, Assistant Tierney, Assistant Mohn, everybody involved in this. I sat in, there was even a citizen who came in and sat in, when he heard me talking about what was going on. Staff did a bang up job on defending and protecting this County. To think otherwise is absolutely amazing to me. It was a five hour meeting, that I had to end up leaving. Staff made me very proud, in fact I called the next day to say how proud I was of you. I also want to talk about something, it's always raised here about thinking outside the box. This is what this provision allows you to do, is to think outside the box, otherwise every R4 that comes into this community from here forward will have the same percentage of Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 065 industry, the same percentage of commercial, we're gomg to have cookie cutter planned developments, if that's the way this vision for this county is to go, to try and convince people. Frankly, industry isn't wanted on that property, at least that waiver is out of there. So, we're going to argue over that one too? So, I move, I mean, I'm going to support this amendment. I think these design modifications are exactly what we need to bring the process forward. It does give control and not everything that is in those waivers or in the descriptions for R4 is not wanted in ----. And if you bump up the commercial, what do you get more? You get more traffic. So, think about what you're saymg. Supervisor Reyes, the section...... .165-72 of the current text, the planned community development shall conform to all regulations ofthis.......chapter in the Frederick County Code, unless specifically exempted by this article. I think that's sufficient. And therefore do not recommend any modifications or changes. Chairman Shickle, okay, other comments? Ready to vote? Supervisor Forrester, I have a comment. I'm a little worried tonight about a trend that I'm seeing and I'm experiencing part of, and I don't know how to turn this trend around. But you know, previously we voted again tonight on Alternative 4. What changed since it came before the Board at our June II th meeting? Nothing. Everyone that could've seconded it remained silent. What did this do, by doing that? It postponed it for two months. Why? Because now a zoning ordinance change that will fit a proposed application is coming before us, that doesn't work. Conference of plan didn't work, an alternative was developed that didn't go through the normal public process. Now, we're changing the ordinance so that it fits potentially this particular applicant's application. It very much concerns me. What also concerns me is the lack of time and notification to Board members. I was unaware of a request to study whether or not we needed to revote again on this Alternative. What this also will do is this will slow the process, but get us through probably right after the election, and I think it's really important that people realize that there's a lot riding on this. And so perhaps silence from the June 11 th meeting, I'm a cynic maybe, but it just doesn't feel like there's any new reasons given tonight for why Alternative 4, which was so unwanted by the Board members June 11 th, now without any debate, is seconded and then voted by the same members who weren't willing to even give it a second on June 11 th and that concerns me. Upon motion made by Supervisor Sager, seconded by Supervisor Douglas, the following Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03 I 066 amendment was approved: ~ 165-72. Design requirements; Other Regulations o. Ot1.\".Il l\,'''ould.Cvu". T1."", plallll\.lJ \,..Ulllllluu;ty a\.ov""lvpIJl\..tlit 61.((11 \.IVUfvllll vv;tL al1.\".I5u1a:t;Vll<) vf this chapter and the Prederick County Code unless specifically exempted by this artide. Modifications; applicability of other regulations. (1) An applicant may request as part of an application for rezoning to the R4 District that a modification to specific requirements of the subdivision ordinance, this chapter or other requirements of the Frederick County Code applicable to physical development be granted. The applicant shall demonstrate that the requested modification is necessary or justified in the particular case by a demonstration that the public purpose of these ordinances, as applied to the particular case, would be met to at least an equivalent degree by such modification. The Board of Supervisors may approve or disapprove such request, in whole or in part, following review by the Planning Commission. (2) The applicant shall provide sufficient information to enable evaluation of the request by the Board of Supervisors. Materials submitted should include or be supplemented by: (a) specification of the code section(s) to be modified and the proposed alternative standard; (b) exhibits demonstrating application of the modified standard such as a detailed plan and/or elevation drawing; and (c) identification of the relationship of the modification to the overall community concept. (3) The planned community development shall conform with all regulations of this chapter and the Frederick County Code unless specifically exempted by this article or modified by the Board of Supervisors through the rezoning process. OTHER PLANNING ITEMS ROAD RESOLUTION (RESOLUTION #011-03), RAVEN WING SUBDIVISION, SECTION II AND III - APPROVED UNDER CONSENT AGENDA BOARD OF SUPERVISORS COMMENTS There were no additional comments. UPON MOTION MADE BY SUPERVISOR SMITH, SECONDED BY SUPERVISOR TYLER, THERE BEING NO FURTHER BUSINESS TO COME BEFORE THIS BOARD, THIS MEETING IS HEREBY ADJOURNED (TIME: 9:32 P.M.). \)~.QJ ~ Richard C. Shickle Chairman, Board of Supervisors Jo!J!fr:{i- Clerk, Board of Supervisors Minutes Prepared By: d~;-:- '-.15~ ~a.J Carol T. Bayliss Deputy Clerk, Board of Supervisors Minute Book Number 29 Board of Supervisors Regular Meeting of 08/13/03