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December 10, 1980 Regular Meeting1148 A Regular Meeting of the Frederick County Board of Super- visors was held on December 10, 1980, at 7:00 P.M., in the Board of Supervisors' Meeting Room, 9 Court Square, Winchester, Virginia. PRESENT S. Roger Koontz, Chairman; Will L. Owings, Vice- Chairman; William H. Baker; Rhoda W. Maddox; R. Thomas Malcolm and Kenneth Y. Stiles. CALL TO ORDER The Chairman called the meeting to order. INVOCATION The invocation was delivered by Reverend Margaret Turbyfill of the Montague Avenue and Macedonia United Methodist Churches. ADOPTION OF THE AGENDA The County Administrator noted that Mr. Thomas B. Rosenber- ger, former member of the Board of Supervisors, had requested placement on the agenda to address the Board. Mr. Baker requested that an Executive Session be added to the agenda to discuss a possible legal matter. The Chairman advised that the "Kids Are Our Concern" organ- ization had requested the Board's support of upcoming legisla- tion regarding drug paraphernalia. Upon motion made by Will L. Owings, seconded by William H. Baker and passed unanimously, the agenda was adopted as amended. APPROVAL OF MINUTES The Chairman noted that the minutes of November 12, 1980 would be withheld until the first meeting in January so that the portion containing the Creation of the South Frederick Agricultural District might be more closely proofed. Mr. Malcolm requested the following corrections to the minutes of October 8, 1980: Page 5 - "Warren" Carper should read, "Loring" Carper: Page 6 - The last two sentences in the second paragraph should read, "Mr. Malcolm stated that he wanted it to be under- stood that it is only a matter of time before that whole area becomes a business zone simply because of the nature of the area. He added that he felt this flies in the face of County planning and does not set a very good precedent at this time." 149 The Board concurred with these corrections. Mr. Malcolm then asked if he was correct in his understand- ing that if any property listed in the comprehensive rezoning is found to be incorrect due to a typographical error, it would be corrected at no expense to the property owner. The Board agreed that this was correct. Upon motion made by R. Thomas Malcolm, seconded by Kenneth Y. Stiles and passed unanimously, the minutes of the Regular Meeting of October 8, 1980, as amended, and the Regular Meeting of October 22, 1980, as submitted, were approved. PRESENTATION OF PAINTING FROM MR. THOMAS B. ROSENBERGER TO BOARD OF SUPERVISORS Mr. Thomas B. Rosenberger, former Board of Supervisors member from Back Creek District, appeared before the Board and presented an oil painting of the Court House and the Confederate Soldier Statute as a token of his esteem for the County and her citizenry. He introduced Mrs. Mary Saunders, the artist, and her husband and noted that they are residents of Frederick County and reside in Shawneeland. The Chairman thanked Mr. Rosenberger on behalf of the Board and the citizens of the county for his gift and stated that it was quite beautiful and greatly appreciated. Mr. Baker stated that Mr. Rosenberger exemplifies the lead- ership which Frederick County has had for many years. He also thanked Mr. Rosenberger for the painting on behalf of the citizens in Back Creek District. KIDS ARE OUR CONCERN COMMITTEE REQUEST FOR BOARD'S SU ON UPCOMING DRUG PARAPHERNALIA LEGISLATION - APPROVED The Chairman stated that the "Kids Are Our Concern" Committee had requested the Board's support of upcoming legisla- tion relating to the sale of drug paraphernalia. He added that this support would be of the general concept of the Bill. Upon motion made by William H. Baker and seconded by Rhoda W. Maddox, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein declare its support of the overall concept of the upcoming legislation dealing with the sale of drug paraphernalia. 150 The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. APPOINTMENT TO NORTHWESTERN COMMUNITY SERVICES BOARD - TABLED Upon motion made by Kenneth Y. Stiles and seconded by R. Thomas Malcolm, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein table the appointment to the Northwestern Community Services Board until January 14, 1981. The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. ZMAP #010 -80 - FREDERICK MALL LAND TRUST - B -2 to R -6 - GAINESBORO DISTRICT - DENIED Mr. Riley presented the rezoning request of Frederick Mall Land Trust and read the reviewing agencies comments. He stated that the Planning Commission recommended approval of the request and then presented a preliminary sketch of the proposed develop- ment. Mr. Harry Benham, III appeared before the Board representing Frederick Mall Land Trust. Mr. Stiles stated that when the Planning Commission was in- volved in the downzoning they discussed at length including this property as part of the comprehensive rezoning. He noted that the comprehensive rezoning reduced some R -6 zoning across the road from fifty -four acres to twenty- six /twenty -eight acres and the Planning Commission felt this action would leave sufficient R -6 zoning available. He added that Mr. Benham had presented this request back in the summer and the Planning Commission requested him to wait until the comprehensive rezoning was com- plete. The entrance and roadways within the development were dis- cussed and Mr. Benham advised that the entrance would be off Rt. 522 and not Fox Drive and any roadways within the development would be the responsibility of the landowners. Mr. Sam Lehman appeared before the Board in opposition of this request stating that there would be a water runoff problem 151 and this type of high density development was not needed in the county; that it would require services not normally provided county residents. Mr. Stiles noted that this type of housing is necessary in Frederick County and if it is not provided the alternative would be more trailer parks inasmuch as many people cannot afford to borrow fifty to seventy -five thousand dollars at an interest rate of sixteen percent to buy a house. He added that this develop- ment would provide less expensive housing to the people who need it. Mrs. Maddox stated that she understood the need for this type of housing in the county, but she felt that inasmuch as the comprehensive rezoning has just been completed, it is a bit pre- mature to start rezoning property before the Board and the Planning Commission work on the comprehensive plan which is due to begin in January. Mr. Stiles stated that the public had been advised repeatedly that once the comprehensive rezoning was completed, if anyone came in requesting rezoning it would be considered on its merits. Mr. Benham noted that the property is now zoned business and that he felt apartments would be more desirable. He added that the new school is just across the road and water and sewer are available and therefore it was felt that this was a more desir- able location for this type development. Mrs. Maddox then moved for the denial of the rezoning request of Frederick Mall Land Trust. This motion was seconded by William H. Baker and defeated by the following recorded vote: Aye - Rhoda W. Maddox, William H. Baker and S. Roger Koontz. Nay - R. Thomas Malcolm, Kenneth Y. Stiles and Will L. Owings. Mr. Stiles then moved to approve the rezoning request of Frederick Mall Land Trust. This motion was seconded by Mr. Thomas Malcolm and defeated by the following recorded vote: Aye - Kenneth Y. Stiles, R. Thomas Malcolm and Will L. Owings. Nay - Rhoda W. Maddox, William H. Baker and S. Roger Koontz. 152 Mr. Stiles stated that inasmuch as this issue had been de- feated by a tie vote, according to Board policy, it could be re- turned at the next meeting. The Board concurred. CUP #014 -80 - JOHN M. AND SHIRLEY D. KLEIN - BACK CREEK DISTRICT - APPROVED Mr. Riley presented the conditional use permit request of John M. and Shirley D. Klein and read the reviewing agencies comments. He stated that the Planning Commission recommended approval of the request with conditions. Mr. Klein appeared before the Board in support of his re- quest and stated that no ferrier work would be done; that he would be making only useable tools and kitchen and fireplace utensils and would be the only employee. Following a brief discussion condition number 1 was amended to read "review annually by the staff, Planning Commission and Board of Supervisors" and condition number 2 was amended to read "This shall be a three year permit." Mr. Riley then read the amended conditions to Mr. Klein and he stated that he had no objection to these conditions. There was no opposition. Upon motion made by William H. Baker and seconded by Rhoda W. Maddox, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein approve Conditional Use Permit No. 014 -80 of John and Shirley Klein to operate a black - smith's shop in part of an exisitng barn on their property, located on the southwest corner of Merriman's Lane and Cedar Creek Grade, in the Back Creek Magisterial District, with the following conditions: 1. Review annually by the staff, Planning Commission and the Board of Supervisors. 2. This shall be a three year permit. 3. If the nature of the business changes, additional im- provements such as parking, access and hours of opera- tion will be addressed. 4. If the use is discontinued, or occupancy or ownership of the building changes, this conditional use permit shall expire and a new conditional use permit will be required. 153' 5. This be restricted to one employee (member of the immediate family residing on the premises). The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. CUP #015 -80 - JUDITH S. WARE - STONEWALL DISTRICT - APPROVED Mr. Riley presented the conditional use permit request of Judith S. Ware and read the reviewing agencies comments. He noted that the Planning Commission recommended approval of this request. Ms. Ware appeared before the Board in support of her re- quest. Mr. Stiles stated that he had heard no objections to this request and would like to amend condition number 1 to remove the words "and renew" and condition number 2 to make this a three year permit. The Board concurred. Ms. Ware stated that she understood the conditions and had no objections to them. There was no opposition. Upon motion made by Kenneth Y. Stiles and seconded by Will L. Owings, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein approve Conditional Use Permit No. 015 -80 of Judith S. Ware to operate a beauty salon in her home, located on the west side of Route 11 north, adjacent to the L. J. Wright mobile home park, in the Stonewall Magisterial District, with the following conditions: 1. Review annually by the staff, Planning Commission and the Board of Supervisors. 2. This shall be a three year permit. 3. If the use is discontinued, or occupancy or ownership of the building changes, this conditional use permit shall expire and a new conditional use permit will be required. 4. If the nature of the business changes, additional im- provements such as parking, access and hours of opera- tion will be addressed. 5. This shall be restricted to one employee (member of the immediate family residing on the premises). 11.54: The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. CUP #019 -80 - RICHARD J. SCHERZINGER, SR. - OPEQUON MAGISTERIAL DISTRICT - APPROVED Mr. Riley presented the request for conditional use permit of Richard J. Scherzinger, Sr. and read the reviewing agencies comments. He advised that the Planning Commisssion recommended denial of this request. Mr. Scherzinger appeared before the Board in support of his request. Mr. Riley read the following letter from the property own- er adjacent to Mr. Scherzinger: December 9, 1980 John R. Riley, Director Department of Planning & Development Frederick County 9 Court Square Winchester, Va. 22601 Dear Mr. Riley: I have your letter, dated November 24, 1980, in which you adivse me, as adjoining property owner, of the application for a Conditional Use Permit by Richard J. Scherzinger, Sr. This permit is to enable Mr. Scherzinger to operate a home business to repair small engines. I have no objection to this application. Mr. Scherzinger's workshop area will be facing our bedrooms, but will not disturb us, since he restricts his motor noises to weekends and early evening hours. He keeps his area very neat, therefore there will be no visual contamination of the neighborhood. Since I do not plan to attend the December 10, 1980 meeting of the Board of Supervisors, I request that this letter be read at that time. Yours very truly, /s /George T. Ford George T. Ford 145 Meadowlark Lane "The Meadows" Stephens City, Va. 22655 There was no opposition. Mr. Owings stated that he was concerned about an operation of this type because of the close proximity of the houses in the subdivision. He then moved to accept the Planning Commission recommendation for denial of this request. This motion was seconded by Mr. Kenneth Y. Stiles. 155 Mr. Stiles stated that there was opposition at the Planning Commission meeting. He stated that he felt very strongly that a person should be able to do what he wants in his own home but he did feel the close proximity of the homes in the subdivision may not be conducive to this type of business. This motion was defeated by the following recorded vote: Aye - Kenneth Y. Stiles, R. Thomas Malcolm and Will L. Owings. Nay - Rhoda W. Maddox, William H. Baker and S. Roger Koontz. Mrs. Maddox stated that there were noises in subdivisions far worse than this which were beyond the control of the property owners. There followed a brief discussion regarding Mr. Scherzinger's proposed hours of operation and he stated that he would be willing to amend them in order to cooperate with his neighbors. Mr. Baker then moved to amend condition number 4 to read, "Hours of operation will be Monday through Friday, from 5:00 P.M. to 8:30 P.M." This motion was seconded by Will L. Owings and passed unanimously. Mr. Owings asked Mr. Scherzinger if he understood the conditions and if he further understood that if any of the conditions were violated, the permit can be revoked. Mr. Scherzinger replied that he understood both the conditions and the liability should any violation of the permit occur. Upon motion made by Will L. Owings and seconded by Kenneth Y. Stiles, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein approve Conditional Use Permit No. 019 -80 of Richard J. Scherzinger, Sr. to operate a small engine repair business (lawnmowers, chainsaws, rototillers, etc.) in a shop attached to his house, located on Meadowlark Lane in the Meadows Subdivision, Opequon District, with the following conditions: 1. This shall be a one year permit to be reviewed annually by the staff, Planning Commission and the Board of Supervisors. 156 2. If the use or occupancy of the building changes, this conditional use permit shall expire and a new condi- tional use permit will be required. 3. Noone other than members of the immediate family re- siding on the premises shall be employed. 4. Hours of operation shall be from 5:00 P.M. to 8 :30 P.M., Monday through Friday. 5. Outside storage is prohibited and all work shall take place within the shop. The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. CUP #020 -80 - M. LUCY LUTTRELL AND OPEOUON DISTRICT APPROVED Mr. Riley presented the request for conditional use permit of Mrs. Luttrell and Mrs. Whetzel and read the reviewing agencies comments. He noted that the Planning Commission recommended approval of the request with conditions. Mr. and Mrs. Luttrell appeared before the Board in support of the request. There was no opposition. Following a brief discussion regarding the hours of opera- tion, Mr. Owings moved to strike condition number 2 which read, "Hours of operation be daylight hours ". This motion was seconded by Kenneth Y. Stiles and passed unanimously. Upon motion made by Will L. Owings and seconded by Kenneth Y. Stiles, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein approve Conditional Use Permit No. 020 -80 of M. Lucy Luttrell and Ruth a Whetzel to construct a two hundered and forty foot structure to operate an antique shop on property, located on the south side of Route 628 (Middle Road), approximately one half mile north of Marlboro, in the Opequon Magisterial District, with the following conditions: 1. This be a five year permit to be reviewed annually by the staff. A. WHETZEL - 2. If the use is discontinued or occupancy of the building changes, this conditional use permit shall expire and a new conditional use permit will be re- quired. 157 The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. C UP #021 -80 - NAOMI F. NELSON - SHAWNEE DISTRICT - APPROVED Mr. Riley presented the request for conditional use permit of Naomi F. Nelson and read the reviewing agencies comments. He noted that the Planning Commission recommended approval with con- ditions. Ms. Nelson appeared before the Board in support of her re- quest. There was no opposition. Upon motion made by R. Thomas Malcolm and seconded by William H. Baker, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein approve Conditional Use Permit No. 021 -80 of Naomi F. Nelson to operate a beauty shop in her home, located at 1178 Cherry Hill Drive, Green Acres Subdivision, in the Shawnee Magisterial District, with the following condi- tions: 1. One year permit to be reviewed annually by the staff, Planning Commission and the Board of Supervisors. 2. If the use or occupancy of the building changes, this conditional use permit shall expire and a new condi- tional use permit will be required. 3. Noone other than members of the immediate family re- siding on the premises may be employed. The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. CU #022 -80 - 7 DISTRICT - APPF .S L. AND BARBARA CONRAD - O PE , Mr. Riley presented the request for conditional use permit of Thomas L. Conrad, et ux and read the reviewing agencies comments. He advised that the Planning Commission recommended approval with conditions. Mr. Mark Conrad appeared before the Board, representing Mr. and Mrs. Conrad, in support of this request and requested that the permit be issued in the name of Bon Air Home, Inc. and not Thomas and Barbara Conrad. 15° Mr. Sam Lehman stated that it was his understanding that conditional use permits are issued to individuals and therefore are not transferrable with a business. Mr. Owings asked if this expansion was necessary and Mr. Conrad stated that they now have fifty -four beds and there is a need for one hundred and twenty. Mr. Stiles advised that this had originally been presented as a rezoning request and had received substantial oppositioD. He ( added that the Planning Commission suggested that it be withdrawn and be brought back as a request for conditional use permit. Mr. 0. W. Wake and Mr. Charles Bass appeared before the Board and stated that they were adjoining property owners and had opposed the rezoning of this property. Both stated that they were not in opposition to the conditional use permit request. There was no opposition from the general public. Upon motion made by Will L. Owings and seconded by Kenneth Y. Stiles, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein approve Conditional Use Permit No. 022 -80 of Thomas L. and Barbara Conrad to expand the Bon Air Home for the Elderly, Inc., to include a one hundred and twenty bed medical facility on their property, located one mile south of Stephens City on the east side of Route 11, in the Opequon Magisterial District, with the following conditions: 1. This shall be a five year permit to be reviewed annually be the staff. 2. Appropriate screening and lighting is required on the site plan if needed. 3. If the use or occupancy or ownership of the building changes, this conditional use permit shall expire and a new conditional use permit shall be required. The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. COMMUNITY DIVERSION INCENTIVE ACT GRANT APPLICATION - APPROVED Mr. James Allamong and Mrs. Patricia Flegal, of the Regional Jail Project, appeared before the Board and explained the Community Diversion Incentive Act Program describing its purpose and goals. 151 There followed a brief discussion regarding funding, selection of the Board of Directors and the operation of the program. Upon motion made by Rhoda W. Maddox and seconded by Will L. Owings, BE IT RESOLVED, That the Board of Supervisors of the County of Frederick, Virginia, does herein approve the Community Diversion Incentive Act Grant Appplication, of the joint confinement and corrections operations project, as submitted. The above resolution was passed by the following recorded vote: Aye - S. Roger Koontz, Will L. Owings, William H. Baker, Rhoda W. Maddox, R. Thomas Malcolm and Kenneth Y. Stiles. BOARD RETIRES INTO EXECUTIVE SESSION Upon motion made by William H. Baker, seconded by Rhoda W. Maddox and passed unanimously, the Board retired into Executive Session in accordance with Section 2.1 -344, Subsection (a)(6), of the Code of Virginia, 1950 as amended to consider legal matters. BOARD WITHDRAWS FROM EXECUTIVE SESSION Upon motion made by Kenneth Y. Stiles, seconded by William H. Baker and passed unanimously, the Board withdrew from Executive Session. BOARD RECONVENES INTO REGULAR SESSION Upon motion made by William H. Baker., seconded by Kenneth Y. Stiles and passed unanimously, the Board reconvened into Regular Session. UPON MOTION DULY MADE, SECONDED AND PASSED UNANIMOUSLY, IT IS ORDERED THAT THE BOARD OF SUPERVISORS DO NOW ADJOURN. 11 J5 0 1 , i man, oar Y of S Orr vis s ,Qlerk, Board of Supervisors