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January 28, 2004 Regular Meeting 300 A Regular Meeting ofthe Frederick County Board of Supervisors was held on Wednesday, January 28, 2004, at 7: 15 P.M., in the Board of Supervisors ' Meeting Room, County Administration Building, 107 North Kent Street, Winchester, VA. PRESENT Chairman Richard C. Shickle; Vice Chairman Barbara E. Van Osten, Gary W. Dove; Bill M. Ewing; Gina A. Forrester; W. Harrington Smith, Jr., and Lynda 1. Tyler. CALL TO ORDER Chairman Shickle called the meeting to order. INVOCATION In the absence of a minister, the invocation was delivered by Chairman Shickle. PLEDGE OF ALLEGIANCE Supervisor Smith led the Pledge of Allegiance. ADOPTION OF AGENDA - APPROVED Administrator Riley advised that he had no additional items to add to the agenda at this time. Upon a motion by Supervisor Forrester, seconded by Supervisor Smith, the agenda was approved as presented by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye CONSENT AGENDA - APPROVED Administrator Riley suggested the following tabs for approval under the Consent Agenda: 1. Correspondence and Resolution from Winchester and Western Railroad Re: Rail Preservation Application - Tab C; 2. Renewal of Building Lease ofthe Old Dominion Alcohol Safety Action Program - Tab D; 3. Parks and Recreation Commission Report - Tab - G. Upon motion by Vice-Chairman Van Osten, seconded by Supervisor Forrester, the Consent Agenda was approved by the following recorded vote: Richard C. Shickle - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 301 Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye BOARD OF SUPERVISORS COMMENTS Vice-Chairman Van Osten addressed the Board's action which moved citizen comments to the end of the meeting. She stated that this action was in no way done to slight the importance of citizen comments, but was a way to make the meeting more efficient. She went on to say that she thought, in the past, the citizen comment period was not used as it was intended. She concluded by saying that she would like to keep citizen comments at the end of the meeting for a period of three months and then have the Board address it again at the end of that period. Supervisor Smith agreed with Vice-Chairman Van Osten. Vice-Chairman Van Osten encouraged citizens to contact their supervisor when there was an item of interest on the agenda, which they would like to address. Supervisor Forrester hoped the Board would restore citizen comments to the beginning of the meeting. She asked if citizens still needed to sign up to address the Board during citizen comments. Chairman Shickle responded that there was no sign up sheet for citizen comments. Administrator Riley stated that there was no sign up sheet and that if citizens wanted to speak they could speak.' Supervisor Tyler stated that she would like to have citizen comments at the beginning ofthe meeting because there are often items on the agenda that are not public hearing items and this would allow citizens to speak regarding these items prior to Board action. AMENDMENT TO RULES OF PROCEDURE - INCLEMENT WEATHER SCHEDULE-APPROVED Chairman Shickle noted that during the Board's organizational meeting they did not adopt an inclement weather policy in the event a meeting is canceled due to the weather. He stated that he would like to continue the policy of having the Board meet on the following evening in the event of a weather related cancellation. Upon motion by Supervisor Tyler, scconded by Supervisor Smith, the Rules of Procedure Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 302 were amended to allow the Board of Supervisors to meet on the following evening (Thursday) if the meeting is canceled due to inclement weather. The above motion was passed by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye MINUTES-APPROVED Upon motion by Supervisor Tyler, seconded by Supervisor Dove, the minutes of December 1,2003 Work Session were approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Abstain (Not a Board Member at that time.) Gary W. Dove - Aye Bill M. Ewing - Abstain (Not a Board Member at that time.) Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye Upon motion by Supervisor Smith, seconded by Supervisor Forrester, the minutes of January 8, 2004 were approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye Upon motion by Supervisor Tyler, seconded by Vice-Chairman Van Osten, the minutes of January 14,2004 were approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye COUNTY OFFICIALS RANDY JONES OF ROBINSON FARMER. COX ASSOCIATES TO ADDRESS BOARD RE: COMPREHENSIVE ANNUAL FINANCIAL REPORT (CAFR) Randy Jones, Robinson, Farmer, Cox Associates, appeared before the Board to provide a Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 303 brief overview of the County's Comprehensive Annual Financial Report. He advised that this was the County's second year under the new reporting guidelines. Mr. Jones noted the following: - The County has approximately $23 million in the General Fund - There is approximately $21 million in the Reserve Fund. - The County is in good financial position and has handled its financial issues prudently. Mr. Jones concluded by saying that there were no significant outstanding items from the report and his firm had a few suggestions, which were being incorporated. COMMITTEE APPOINTMENTS Chairman Shickle noted that he had one appointment left for the Code and Ordinance Committee and would have that by the next meeting. HELEN LAKE AND MICHAEL HOCKMAN APPOINTED TO THE PUBLIC SAFETY COMMUNICATIONS COMMITTEE Chairman Shickle advised the Board that he had appointed Helen Lake and Michael Hockman to fill the two citizen vacancies on the Public Safety Communications Committee. CHARLES E. MCCARTY APPOINTED TO SERVE ON THE LOCAL EMERGENCY PLANNING COMMITTEE Upon motion of Supervisor Tyler, seconded by Supervisor Smith, Charles E. McCarty was appointed to the Emergency Planning Committee by thc following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye LARRY CLARK APPOINTED TO SERVE ON THE CHAPTER 10 BOARD FROM FREDERICK COUNTY Upon motion of Supervisor Tyler, seconded by Supervisor Forrester, Larry Clark was appointed to serve on the Chapter 10 Board as a representative from Frederick County. This is a three year term. The term will expire on December 31, 2006. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 304 W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye MIKE RUDDY APPOINTED TO SERVE ON THE PARKS AND RECREATION COMMISSION AS A REPRESENTATIVE FROM THE SHAWNEE DISTRICT Upon motion of Supervisor Smith, seconded by Supervisor Forrester, Mike Ruddy was appointed to serve on the Parks and Recreation Committee as a representative from the Shawnee District. This is a four year term. The term will begin on January 28, 2004 and will expire on January 28,2008. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye PARKS AND RECREATION COMMITTEE REPRESENTATIVE FROM THE GAINESBORO DISTRICT Supervisor Dove advised that he was still interviewing candidates for the Gainesboro District seat on the Parks and Recreation Commission. PARKS AND RECREATION COMMISSION AT-LARGE REPRESENTATIVE Chairman Shickle advised that the At-Large representative to the Parks and Recreation Commission would be recommended to the Board by the Commission. This vacancy has been advertised and the Commission is awaiting applications. CHARLES S. DEHAVEN. JR. RE-APPOINTED TO SERVE ON THE PLANNING COMMISSION AS A REPRESENTATIVE FROM THE STONEWALL DISTRICT Upon motion by Supervisor Tyler, seconded by Supervisor Smith, Charles. S. DeHaven, Jr. was re-appointed to serve as a representative from the Stonewall District. This is a four year term. This term will begin on February 12,2004 and will expire on February 12,2008. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 305 TRANSPORTATION COMMITTEE APPOINTMENT FROM THE GAINESBORO DISTRICT Supervisor Dove advised that he would like to wait until next month to submit his appointee. CORRESPONDENCE AND RESOLUTION (#037-04) FROM WINCHESTER AND WESTERN RAILROAD RE: RAILPRESERV ATION APPLICATION -APPROVED UNDER CONSENT AGENDA WHEREAS, the WINCHESTER & WESTERN RR desires to file an application with the VIRGINIA DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION for safety and improvement projects; and WHEREAS, the identified improvement projects are estimated to cost $3,959,200.00; and WHEREAS, the 2004 General Assembly has approved funding for the acquisition, lease, or improvement of railways within the Rail Preservation Program budget; and WHEREAS, the WINCHESTER & WESTERN RR is an important element of the WINCHESTER/FREDERICK COUNTY transportation system; and WHEREAS, the WINCHESTER & WESTERN RR is instrumental in the economic development of the WINCHESTER/FREDERICK COUNTY area, and provides relief to the highway system by transporting freight, and provides an alternate means of transporting commodities; and WHEREAS, THE COUNTY OF FREDERICK supports the project and the retention of rail service; and WHEREAS, the COMMONWEALTH TRANSPORTATION BOARD has established procedures for all allocation and distribution offunds approved by the 2004 General Assembly. NOW, THEREFORE, BE IT RESOLVED that THE COUNTY OF FREDERICK does hereby request the VIRGINIA DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION to give priority consideration to the projects proposed by the WINCHESTER & WESTERN RR totaling $3,959,200.00 in THE COUNTY OF FREDERICK and THE CITY OF WINCHESTER. RENEWAL OF BUILDING LEASE FOR THE OLD DOMINION ALCOHOL SAFETY ACTION PROGRAM - APPROVED UNDER CONSENT AGENDA RENEWAL OF LEASE THIS RENEWAL OF LEASE, made and dated this 8th day of January. 2004, by and between THE COUNTY OF FREDERICK, and THE CITY OF WINCHESTER, VIRGINIA, hereinafterreferred to as "Lessors", and THE OLD DOMINION ALCOHOL SAFETY ACTION PROGRAM, hereinafter referred to as "Lessee". WHEREAS, the parties entered into a lease dated October 10, 1991 for the lease of property located at 317 South Cameron Street, in the City of Winchester, Virginia; and WHEREAS, paragraph 15 of said lease granted to the Lessee the option to renew the lease for a period of one (1) year; and WHEREAS, the Lessee has exercised such option to renew; and WHEREAS, Lessors have advised Lessee that in consideration of the improvements Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 306 previously made and which may be made in the renewal term, no additional rent shall be payable during the renewal term. NOW, THEREFORE, the parties agree that the lease dated October 10, 1991 is hereby renewed for the period of January 1, 2004 to December 31, 2004 under the same terms and conditions as the lease of October 10, 1991. MEMORANDUM RE: COUNTY PARKING LEASE AGREEMENT - APPROVED Assistant Administrator Tierney advised the Board that the County had been in negotiations with the City regarding the possible lease of 50 parking spaces in the parking lot to the north of the County Office Complex (former Public Safety Building lot). The lease agreement permits the County to lease 50 spaces at a cost of $20/space per month. Assistant Administrator Tierney concluded by saying that he was requesting authorization from the Board for the County Administrator to move ahead with the lease and authorize the County Administrator to transfer $7,000 out of Operational Contingencies (line item 9301-5890-000000) in to Other Contractual Services (line item 1224-3010-000000) to cover the cost of the rent. Upon motion by Supervisor Ewing, seconded by Vice-Chairman Van Osten, the County Administrator was authorized to move ahead with thc Parking Lease Agreement and transfer of $7,000 from Operational Contingencies to Other Contractual Services. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye REQUEST OF KEN JONES. EXISTING INDUSTRY COORDINATOR, ECONOMIC DEVELOPMENT COMMISSION FOR BOARD APPROVAL OF GRW MEMORANDUM OF UNDERSTANDING (MOU) CONDITIONS - APPROVED Administrator Riley advised the Board that the request before them was to approve the Economic Development Commission's recommendation that the conditions of the GRW Memorandum of Understanding were satisfied. He stated that the company had exceeded the MOU's investment requirement by 12%; however, they were only able to create 38 of the 60 jobs required under the MOD. Supervisor Dove asked if it would be appropriate for the Board to extend the time period of the Memorandum of Understanding in order to allow GRW an opportunity to create the additional Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28104 307 jobs. Administrator Riley stated that considering the MOU conditions met would allow the company to move on. Director Barker, Economic Development Commission, advised that the Company wanted to put this phase behind them and move forward with an expansion. Upon motion by Supervisor Dove, seconded by Vice-Chairman Van Osten, the conditions in the GRW Memorandum of Understanding are considered fulfilled. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye PROPOSED PROSPECT ANNOUNCEMENT M&H PLASTICS MEMORANDUM OF UNDERSTANDING AND BOARD OF SUPERVISORS RESOLUTION (#039-04)- APPROVED Administrator Riley advised the Board that they had before them a resolution for M&H Plastics, a firm out of the United Kingdom, which will be locating in Frederick County. The company will be creating $1 million in taxable real estate, $11 million in taxable machinery, and 57 new jobs. The resolution is requesting a $100,000 appropriation to the Industrial Development Authority, which will be used as a match ofa $100,000 grant from the Governor's Opportunity Fund. These funds, in turn, will be transferred to M&H Plastics. Supervisor Dove asked about the possible tax revenue from this industry. Supervisor Riley advised that the return on investment over four years would be $434,950,which means the County would recoup its investment at the end of year one. Supervisor Forrester asked if this industry would affect the Air Quality Task Force Action Plan. Supervisor Riley responded that to date, this industry does not require even a minor air permit. Director Barker advised that this was very much a clean industry. Upon motion by Supervisor Tyler, seconded by Supervisor Forrester, the M&H Plastics Minute Book Number 29 Board of Supervisors Regular Meeting of 01128104 308 Resolution was approved: WHEREAS, M&H Plastics has made known its intent to locate a manufacturing operation by making new taxable real estate and machinery and tools investment and new jobs; and WHEREAS, the company meets the policy guidelines of the Frederick County Economic Development Incentives Fund as established by the Winchester-Frederick County Economic Development Commission in 1995; BE IT RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia, does hereby approve and appropriate the payment of $100,000.00 to the Industrial Development Authority of Frederick County, Virginia from the Frederick County Economic Development Incentive Fund to assist to locate a manufacturing operation for M&H Plastics in Frederick County, Virginia. BE IT RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia does hereby approve and appropriate the payment of $100,000.00 to the Industrial Development Authority of Frederick County, Virginia from the Governor's Opportunity Fund to assist to locate a manufacturing operation ofM&H Plastics in Frederick County, Virginia. BE IT RESOLVED, that said funds are subject to an executed Memorandum of Understanding outlining the required performance criteria. BE IT RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia does hereby authorize the County Administrator to execute the Memorandum of Understanding on its behalf. MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING, (the "Memorandum") made and dated this 28th day of January, 2004, evidences the agreement among the COUNTY OF FREDERICK, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "County"), the INDUSTRIAL DEVELOPMENT AUTHORITY OF THE COUNTY OF FREDERICK, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "IDA"), the WINCHESTER-FREDERICK COUNTY ECONOMIC DEVELOPMENT COMMISSION, a joint commission of the City of Winchester and Frederick County, Virginia (the "Commission"), and M&H Plastics ("MH"), an United Kingdom corporation, regarding a new location of a manufacturing facility in the Commonwealth of Virginia. RECITALS A. MH intends to invest One Million Dollars ($1,000,000.00) in new taxable real estate and taxable improvements, to invest Eleven Million Dollars ($11,000,000.00) in new taxable machinery and tools, and to create Fifty-Seven (57) new jobs (collectively the "Project"). at the manufacturing facility to be located in Frederick County, Virginia (the "Facility"). B. The County agrees to make a cash grant to the IDA in the sum of One Hundred Thousand Dollars ($100,000.00), and the IDA agrees, upon receipt of such funds, to make a cash grant to MH in an identical amount (the "IDA Grant") to be applied by MH in order to complete the Project, as more fully set forth hereinafter. C. The IDA shall also receive a grant of One Hundred Thousand Dollars ($100,000.00) from the Governor's Opportunity Fund (the "Opportunity Fund Grant") and the IDA, as administrator of the Opportunity Fund Grant, upon reccipt of such funds, shall disburse such funds to MH as partial reimbursement for site purchase costs and subsequent site development expenditures, as more fully set forth hereinafter. Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 309 NOW THEREFORE WITNESSETH: That for and in consideration in the sum of Ten Dollars ($10.00), cash in hand paid by each of the parties hereto unto the other, the receipt and sufficiency of which is hereby acknowledged, and other consideration deemed adequate at law, including, but not lirnited to, the covenants and conditions set forth in this Memorandum, the partics do hereby agree as follows: 1. Recitals: The Recitals are made a material part hereof and incorporated herein by reference as if set out in full. 2. Terms and Conditions of Disbursement: a.. The obligations ofthe IDA to rnake disbursement of the IDA Grant to MH is expressly contingent upon receipt of such funds by the IDA from the County. b. The obligation of the IDA to make disbursement ofthe Opportunity Fund Grant to MH is expressly contingent upon receipt of such funds by the IDA from the Governor's Opportunity Fund. c. Provided that the IDA receives the IDA Grant and Opportunity Fund Grant in a timely fashion, the IDA shall disburse such funds to MH after March 1,2004, but no later than June 30, 2004. 3. Reimbursement/Default: MH agrees to make reimbursement to the IDA of the IDA Grant and the Opportunity Fund Grant, as described in Section 4, below, in the event that MH fails to satisfy all the following terms and conditions (the ?Conditions?), as reasonably determined by the IDA: a. MH acquires and has fully operational new taxable real estate in an amount of not less than $1,000,000.00, new taxable machinery and tools in an amount of not less than $7,000,000.00 and create 32 net new jobs at the Facility located in Frederick County, Virginia by December 31, 2004; b. In addition to the new taxable real estate, new taxable machinery and tools, and net new jobs set forth in subsection (a), above, MH acquires and has fully operational additional new taxable machinery and tools in an amount of not less than $4,000,000.00 and create an additional 25 net new jobs at the Facility located in Frederick County, Virginia by December 31, 2006; c. MH employees created by the Project will average an annual salary of not less than $34,730, excluding benefits by December 31,2006; d. MH maintains the level of taxable investment, creates new jobs and wage levels as part ofthe Project until December 31, 2008; and e. MH continues the operation of the Project in Frederick County, Virginia for a four (4) year period commencing on December 31, 2008. 4. Refund: a. In the event that MH fails to meet all ofthe foregoing Conditions set forth in Section 3, above, then and in that event MH shall refund to the IDA such portion ofthe IDA Grant and the Opportunity Fund Grant as is proportionate to MH' s shortfall in satisfying the Conditions (the "MH Refund"). Upon receipt of the MH Refund from MH, the IDA shall return the same, or such proportionate share thereof as called for herein, to the County and to the Governor's Opportunity Fund, respectively. b. Notwithstanding the foregoing, however, ifMH has met ninety percent (90%) ofthe Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 310 investment and employment goals set forth in this Memorandum by December 31, 2006, maintains that ninety percent (90%) level of investment and jobs created through the Project for a period of two (2) years beginning on December 31,2006, and remains fully operational in Frederick County, Virginia for a period of four (4) years commencing on December 31, 2008, then and in that event, MH shall be deemed to have substantially complied with the terms of this Memorandum and shall not be obligated to repay the MH Refund or any portion thereof unto the IDA. 5. Cooperation: The County agrees to use its best efforts to "fast track" any building permits required for the construction and installation ofthe Facility by MH so that the appropriate building permits, if otherwise prepared and submitted in proper form, can be issued in a timely manner in order to meet the deadlines set forth above. The County and the Commission agree to reasonably cooperate with MH, its equipment suppliers and its equipment contractors, in order to assist MH in meeting its operational deadlines so that the Facility is fully equipped by not later than December 31, 2006. Nothing contained in this Section 5 shall be interpreted to in any way require the County to issue any building permits unless and until all applicable terms and conditions as required by law for such building permits have been met and satisfied by MH. 6. Time: Time is ofthe essence as to all matters set forth in this Memorandum. 7. Binding Effect: This Memorandum shall be binding upon and inure to the benefit of the parties hereto and their respective successors upon the date of acceptance of this Memorandum. 8. Construction: This Memorandum and the terms thereof shall be interpreted and construed in accordance with the laws of the Commonwealth of Virginia. 9. Assignment: This Memorandum may not be assigned by any party hereto. 10. Ratification and Implementation: This Memorandum must be fully ratified by all parties hereto not later than 5 :00 p.m. on March 1, 2004, and the implementation by MH of the terms ofthis Memorandum must have commenced by December 31, 2004; otherwise, this Memorandum and the terms hereof shall be deemed withdrawn and of no further force and effect, and anv funds disbursed bv the IDA to MH shall immediatelv refunded by MH to the IDA. COUNTY OF FREDERICK, VIRGINIA By: (SEAL) John R. Riley, Jr., County Administrator INDUSTRIAL DEVELOPMENT AUTHORITY OF THE COUNTY OF FREDERICK, VIRGINIA By: (SEAL) WINCHESTER-FREDERICK COUNTY ECONOMIC DEVELOPMENT COMMISSION By: (SEAL) MH Plastics By: (SEAL) Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 311 The above resolution was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye HP HOOD MEMORANDUM OF UNDERSTANDING AND BOARD OF SUPERVISORS RESOLUTION (#038-04) - APPROVED Administrator Riley advised the Board that HP Hood intends to expand its existing manufacturing operation in Frederick County. They are proposing the creation of$11,900,000 in taxable real estate and improvements, $30 million in taxable machinery and tools, and 65 new jobs. The resolution requests a $450,000.00 appropriation from the County to the Industrial Development Authority. The funds will be used to match funds from the Virginia Industrial Partnership Grant program. The cumulative return over four years is $1,659,000.00 with the County recouping its investment between years 1 & 2. Upon motion by Supervisor Smith, seconded by Vice-Chairman Van Osten, the HP Hood Resolution was approved. WHEREAS, HP Hood has made known its intent to expand its manufacturing operation by making new taxable real estate and machinery and tools investments and new jobs; and WHEREAS, the company meets the policy guidelines of the Frederick County Economic Development Incentives Fund as established by the Winchester-Frederick County Economic Development Commission in 1995; BE IT RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia does hereby approve and appropriate the payment of $450,000.00 to the Industrial Development Authority of Frederick County, Virginia from the Frederick County Economic Development Incentive Fund to expand its manufacturing operation for HP Hood in Frederick County, Virginia. BE IT RESOLVED, that said funds are subject to an executed Memorandum of Understanding outlining the required performance criteria. BE IT FURTHER RESOLVED, that the Board of Supervisors for the County of Frederick, Virginia, does authorize the County Administrator to execute the Memorandum of Understanding on its behalf. MEMORANDUM OF UNDERSTANDING THIS MEMORANDUM OF UNDERSTANDING, (the "Memorandum") made and dated this 28th day of January, 2004, evidences the agreement among the COUNTY OF FREDERICK, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "County"), the INDUSTRIAL DEVELOPMENT AUTHORITY OF THE COUNTY OF FREDERICK, VIRGINIA, a political subdivision of the Commonwealth of Virginia (the "IDA"), the WINCHESTER-FREDERICK Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 312 COUNTY ECONOMIC DEVELOPMENT COMMISSION, a joint commission of the City of Winchester and Frederick County, Virginia (the "Commission"), and HP HOOD ("HOOD"), a Massachusetts corporation, regarding a building and an equipment expansion in their Frederick County facility. RECITALS A. HOOD intends to invest Eleven Million Nine Hundred Thousand Dollars ($11,900,000.00) in new taxable real estate and taxable improvements, to invest Thirty Million Nine Hundred Thousand Dollars ($30,900,000.00) in new taxable machinery and tools, and to create Sixty-Five (65) new jobs (collectively the "Project") at its manufacturing facility is located on Valley Pike (U.s. Route 11) in Frederick County, Virginia (the Facility). B. The County agrees to make a cash grants to the IDA in the sum of Four Hundred and Fifty Thousand Dollars ($450,000.00), and the IDA agrees, upon receipt of such funds, to make cash grants to HOOD in an identical amount (the "IDA Grant") to be applied by HOOD in order to complete the Project, as more fully set forth hereinafter. Such funds will be used as partial reimbursement for equipment purchase costs and subsequent site development expenditures, as more fully set forth hereinafter. NOW THEREFORE WITNESSETH: That for and in consideration in the sum of Ten Dollars ($10.00), cash in hand paid by each of the parties hereto unto the other, the receipt and sufficiency of which is hereby acknowledged, and other consideration deemed adequate at law, including, but not limited to, the covenants and conditions set forth in this Memorandum, the parties do hereby agree as follows: 1. Recitals: The Recitals are made a material part hereof and incorporated herein by reference as if set out in full. 2. Terms and Conditions of Disbursement: a. The obligations of the IDA to make disbursement of the IDA Grant to HOOD is expressly contingent upon receipt of such funds by the IDA from the County. b. Provided that the IDA receives the IDA Grant in a timely fashion, the IDA shall disburse such funds to HOOD per the following schedule; (1) IDA shall disburse a sum of Two Hundred Thousand Dollars ($200,000.00) to HOOD after March 1,2004, but no later than June 30, 2004. (2) IDA shall disburse the additional sum of Two Hundred and Fifty Thousand Dollars ($250,000.00) to HOOD after July 1, 2004, but no later than October 30, 2004. 3 Reimbursement/Default: HOOD agrees to make reimbursement to the IDA of the IDA Grant, as described in Section 4, below, in the event that HOOD fails to satisfy all the following terms and conditions (the "Conditions"), as reasonably determined by the IDA: a. HOOD acquires and has fully operational new taxable real estate in an amount of not less than $8,500,000.00, new taxable machinery and tools in an amount of not less than $26,600,000.00 and create 50 net new jobs at the Facility located in Frederick County, Virginia by December 31, 2004; b. In addition to the new taxable real estate, new taxable machinery and tools, and net new jobs set forth in subsection (a), above, HOOD acquires and has fully operational new taxable real estate in an amount of not less than $3,400,000.00, new taxable machinery and tools in an amount of not less than $4,300,000.00 and create 15 net new jobs at the Facility located in Frederick County, Virginia by December 31, 2005; c. HOOD employees created by the Project will average an annual salary of not less than $34,320, excluding benefits by December 31, 2005; Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 313 d. HOOD maintains the level oftaxable investment, new jobs and wage levels as part of the Project until December 31,2007; and e. HOOD continues to operate in Frederick County, Virginia for a four (4) year period commencing on December 31, 2007. 4. Refund: a. In the event that HOOD fails to meet all of the foregoing Conditions set forth in Section 3, above, then and in that event HOOD shall refund to the IDA such portion of the IDA Grant as is proportionate to HOOD'S shortfall in satisfying the Conditions (the "HOOD Refund"). Upon receipt of the HOOD Refund from HOOD, the IDA shall return the same, or such proportionate share thereof as called for herein, to the County. b. Notwithstanding the foregoing, however, i fHOOD has met ninety percent (90%) ofthe investment and employment goals set forth in this Memorandum by December 31, 2005, maintains that ninety percent (90%) level of investment and jobs created through the Project for a period of two (2) years beginning on December 31, 2005, and thereafter remains operational in Frederick County, Virginia for a period of four (4) years until December 31, 2011, then and in that event, HOOD shall be deemed to have substantially complied with the terms ofthis Memorandum and shall not be obligated to repay the HOOD Refund or any portion thereof unto the IDA. 5. Cooperation: The County agrees to use its best efforts to "fast track" any building permits required for the construction and installation of the Facility by HOOD so that the appropriate building permits, if otherwise prepared and submitted in proper form, can be issued in a timely manner in order to meet the deadlines set forth above. The County and the Commission agree to reasonably cooperate with HOOD, its equipment suppliers and its equipment contractors, in order to assist HOOD in meeting its operational deadlines so that the Facility is fully equipped by not later than the schedule outlined in 3a and 3b above. Nothing contained in this Section 5 shall be interpreted to in any way require the County to issue any building permits unless and until all applicable terms and conditions as required by law for such building permits have been met and satisfied by HOOD. 6. Time: Time is of the essence as to all matters set forth in this Memorandum. 7. Binding Effect: This Memorandum shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. 8. Construction: This Memorandum and the terms thereof shall be interpreted and construed in accordance with the laws of the Commonwealth of Virginia. 9. Assigmnent: Except as set forth hereinafter, this Memorandum may not be assigned by any party hereto; not withstanding the foregoing, this Memorandum may be assigned by HOOD (whether by operation, oflaw or otherwise) to any successor to all or substantially all of the business of HOOD, (whether by merger, consolidation, sales of asset or otherwise), provided, that such successor agrees in writing to assume and comply with all obligations of HOOD hereunder. 10. Ratification and Implementation: This Memorandum must be fully ratified by all parties hereto not later than 5 :00 p.m. on March 1, 2004, and the implementation by HOOD ofthe terms of this Memorandum must have commenced by December 31, 2004; otherwise, this Memorandum and the terms hereof shall be deemed withdrawn and of no further force and effect, and any funds disbursed by the IDA to HOOD shall immediately refunded by HOOD to the IDA. COUNTY OF FREDERICK, VIRGINIA Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 314 By: (SEAL) John R. Riley, Jr., County Administrator INDUSTRIAL DEVELOPMENT AUTHORITY OF THE COUNTY OF FREDERICK, VIRGINIA By: (SEAL) WINCHESTER-FREDERICK COUNTY ECONOMIC DEVELOPMENT COMMISSION By: (SEAL) HP HOOD By: (SEAL) The above resolution was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye COMMITTEE REPORTS PARKS AND RECREATION COMMISSION - APPROVED UNDER CONSENT AGENDA The Parks and Recreation Commission met on January 20,2004. Members present were: Charles Sandy, Clarence Haymaker, Steven White, Victoria Keelon, Joyce Duvall, Ronald Madagan, Lynda Tyler Submitted for Board Information Only: 1. PPEA Proposal (Aquatic Facilitv) - Mr. White moved to accept the unsolicited proposal submitted by Howard Shockey & Son, Inc. for the financing, design, and construction of an aquatic facility and to forward the Commission's recommendation to the Board of Supervisors for their consideration, second by Ms. Duvall, carried unanimously (6-0). 2. Election of Officers - Mr. White moved to suspend article 4,section 1 of the Parks and Recreation Commission bylaws for one year to allow the Chairman to serve a third consecutive year, second by Mrs. Keelon, carried unanimously (6-0). Ms. Duvall moved to elect Mr. Sandy as Chairman for one year, second by Mr. White, carried unanimously (6-0). Mr. White moved to elect Mr. Hartman as Vice Chairman, second by Ms. Duvall, carried unanimously (6-0). 3. Meeting Date/Time/Location - The Commission will continue to meet the third Tuesday of each month at 7:00 p.m. in the first floor conference room, 107 N. Kent St. 4. Committee Appointments - Deferred to February meeting. Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 315 5. Closed Session - Ms. Duvall moved that no action was taken as a result of Closed session under Virginia Code 2.2-3711.30, second by Mr. White, carried unanimously (6-0). FINANCE COMMITTEE The Finance Committee met in the First Floor Conference Room at 107 North Kent Street on January 21, 2004 at 8:00 a.m. Items 1 and 2 were approved under consent agenda. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, items 1 and 2 were approved under consent agenda by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye 1. The Director of Parks and Recreation requests a General Fund supplemental appropriation in the amount of$lJOO. This amount represents proceeds received from the Winter Wonderland Walking Tour earmarked for the WINC Chain of Checks. No additional local funds are needed. See attached memo, p. 1. The committee recommends approval. - Approved Under Consent Agenda. 2. The Director of Economic Development requests a General Fund supplemental appropriation in the amount of$12.500. This amount represents monies received to be used for the Regional Out-Commuting Profiling Study. No additional local funds are needed. See attached memo, p. 2-4. The committee recommends approval. - Approved Under Consent Agenda. 3. The Regional Jail Superintendent requests a General Fund budget transfer in the amount of $21.045. This amount represents additional monies needed for Frederick County's share of Regional Jail costs. It is recommended that this amount be transferred from the operational contingency line item. If transferred, no additional local funds are needed. See attached memo, p. 5. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye 4. The Regional Jail Superintendent requests Regional Jail Fund supplemental appropriations totaling $310,000. This amount is needed for a planning study for the new Work Release Center, unexpected inmate medical expenses and housing of inmates at other facilities due to overcrowding and is requested to be appropriated to various line items. No additional local funds arc needed. See attached memo, p. 6. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 316 Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye S. The Director of Public Works requests Landfill Fund budget transfers totaling $24.700. This amount is needed for advertising, uniforms and Repair and Maintenance - Building and Grounds and is requested to be appropriated to various line items. No additional local funds are needed. See attached memos, p 7-9. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye 6. The Director ofthe Regional Airport requests an Airport Operating Fund supplemental appropriation in the amount of $8.500 and an Airport Capital Fund supplemental appropriation in the amount of $1.565.000. These amounts are needed for professional services and Airport Road Relocation, respectively. Additional revenues are associated with these expenses. No additional local funds are needed. See attached memo, p. 10. The committee recommends approval. A public hearing is required. - Approved Sending Item to Public Hearing. Upon motion made by Supervisor Smith seconded by Supervisor Forrester, the above request to send this item to public hearing was approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye 7. The Director of the Regional Airport requests an Airport Fund supplemental appropriation in the amount of$1.850.000. This amount will be used to fund construction of a new t-hangar, add four t-hangar units on the existing t-hangar building and for refinancing of existing loan and bond. See attached memo, p. 11-15. The committee recommends approval. A public hearing is required. - Approved Sending Item to Public Hearing. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request to send this item to public hearing was approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 317 Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye 8. The Frederick County Registrar requests a General Fund supplemental appropriation in the amount of $12.000. This amount is needed for a primary election to be held in February. Additional local funds are necessary. See attached memo, p. 16. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye 9. The Sheriff requests a General Fund supplemental appropriation in the amount of $304.1 07. This amount represents half-year funding needed fornine new positions. Additional local funds are necessary. See attached proposal, p. 17-42. This request was forwarded to the board without a recommendation with the concern by the committee for mid-year supplemental appropriations. - Action On This Item was Tabled Until the End of the Committee Report. 10. The Commissioner of the Revenue requests a General Fund supplemental appropriation in the amount of$52.000. Blue Ridge Appraisal Company is ahead of schedule and has completed additional field work in FY 2004 that was originally scheduled for FY 2005. Ifapproved, this same amount may be reduced in the FY 2005 budget. Additional local funds are necessary. See attached memo, p. 43. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye 11. The Commissioner ofthe Revenue requests General Fund budget transfers in the amount of$21.000. This amount is needed to pay an invoice from Blue Ridge Appraisal Company that was submitted sooner than expected. No additional local funds are needed. See attached memo, p. 43. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Richard C. Shick1e - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 318 Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye 12. The Feltner Community Foundation requests a General Fund supplemental appropriation in the amount of $26,000. This amount represents a donation to assist in the purchase of display cases for Museum collections. Additional local funds are necessary. See attached memo, p. 44. The committee is deferring this item for consideration during the FY 2005 budget process. - Deferred. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was deferred by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye 13. The Director of Fire and Rescue requests a General Fund supplemental appropriation in the amount of $75,354. Of this amount, $50,536 are federal grant monies to be received for fire education materials. The remaining $24.818 is a budget transfer within the Fire and Rescue budget. No additional local funds are needed. See attached memo, p. 45-47. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was deferred by the following recorded vote: Richard C. Shickle - Nay Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Nay Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye 14. The Director of Fire and Rescue requests a General Fund budget transfer in the amount of$25.754. This amount is needed to replace a 1995 Jeep with high mileage. No additional local funds are needed. See attached memo, p. 48. The committee recommends approval. - Approved. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the above request was approved by the following recorded vote: Richard C. Shickle - Nay Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Nay Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye 15. The Sheriff requests a General Fund supplemental appropriation in the amount of $304.1 07. This amount represents half-year funding needed fornine new positions. Additional local funds are necessary. See attached proposal, p. 17-42. This request was forwarded to the board Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 319 without a recommendation with the concern by the committee for mid-year supplemental appropriations. Chairman Shickle informed the Board, with regard to this request, Sheriff Williamson has proposed to reduce his number of requested positions from nine to seven and he would like to bring this option before the Board for consideration. Sheriff Williamson advised the Board that he was proposing to reduce his original request by one criminal investigator position and one civil process position. The proposed staff changes reduced the original request to around $250,000.00. Chairman Shickle advised that there had been no action from the Finance Committee on the Sheriffs request. Supervisor Forrester asked Sheriff Williamson to explain his staffing problems. Sheriff Williamson explained that he had: One employee that had been assigned to Iraq because he was in the reserves. - Three employees who would be taking maternity/paternity leave in the very near future. Two employees with very serious health related conditions. Supervisor Tyler asked about the ramifications of these staffing problems as far as public safety goes. Sheriff Williamson responded that three investigators are needed and he currently has three deputies, which he has taken off of patrol and has placed in investigations. He went on to say that ifthere was no relief he would have to pull the resource officers out of the schools in order to meet the departmental demands. Sheriff Williamson concluded by saying that his original staffing request costs were $608,214.00, which he reduced to $304,107.00 and his revised proposal brings the costs down to approximately $250,000.00. Chairman Shickle stated that the Board has the original request from the Finance Committee and they have an alternate presented by the Sheriff. The alternate proposal would also include consideration oftwo additional positions; one in the Clerk of the Circuit Court's office and one in the Commissioner of Revenue's office. Supervisor Forrester stated that she was not sure she was ready to support two additional positions. Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 320 Supervisor Tyler asked Sheriff Williamson about process service. Sheriff Williamson responded that he tried to use part-time employees for that service. Administrator Riley advised that the Board has a concern that was expressed by the Sheriff in September and he has taken it through the Personnel and Finance Committees and finally to the Board. He stated that the Sheriff has a justified need and the Board would have to weigh the action they would take with public safety and the community. Upon motion made by Supervisor Smith, seconded by Chairman Van Osten, the Sheriffs request for a General Fund supplemental appropriation in the amount of$250,000.00 to fund seven new positions and consideration of one new position in the Clerk of the Circuit Court's office and the Commissioner of Revenue' s office in next year's budget was approved by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye ** For Information Only ** 1. The School Finance Director provided school system financial statements. See attached memo, p. 49-82. 2. The County Finance Director provided a report on fund balance. See attached memo, p. 83. PLANNING COMMISSION BUSINESS PUBLIC HEARING PUBLIC HEARING - CONDITIONAL USE PERMIT #10-03 OF ALFRED CHAPMAN. JR. FOR A COUNTRY STORE WITH OUTDOOR DISPLAY AREAS. THE PROPERTY IS LOCA TED AT 2960 MILL WOOD PIKE AND IS IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBER 77-A-13 IN THE SHAWNEE MAGISTERIAL DISTRICT - APPROVED Planner I Mark Cheran addressed the Board on behalf ofthis item. Planner I Cheran advised that the subject property is currently zoned RA (Rural Areas) and the applicant had been cited for expanding a non-conforming use on the property by adding an outdoor display area. The applicant requested a conditional use permit to add outdoor display arca for the sale of figurine yard statues. Minute Book Number 29 Board of Supervisors Regular Meetin~ of 01128/04 321 Planner I Cheran advised that the Planning Commission recommended approval with the following conditions: - All review agency comments and requirements shall be complied with at all times. - An engineered site plan shall be submitted to and approved by Frederick County prior to establishment of the outdoor display areas and expansion of the country store. All improvements identified on this site shall be completed prior to operating the business. Any new signage will be limited to one (1) illuminated freestanding business sign; not to exceed fifty (50) square feet in an area and no higher than ten (10) feet in height along the frontage of Millwood Pike (Route 50). - Outdoor display area shall not exceed 1,000 square feet in area. - No on-site vehicle fuel sales allowed. - Any expansion or change of use will require a new Conditional Use Permit. Planner I Cheran concluded by saying that the applicant and property owner were present to answer any questions. Chairman Shickle opened the public hearing on this item and asked if anyone present wished to speak in favor of or against this application. There were no public comments. Chairman Shickle closed the public hearing. Upon motion by Supervisor Smith, seconded by Supervisor Tyler, Conditional Use Permit Application was approved by the following recorded vote. Richard C. Shick1e - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye PUBLIC HEARING - CONDITIONAL USE PERMIT #11-03 OF DYNAMITE DIGITAL TV FOR RE-ESTABLISHING A NON-CONFORMING USE. THE PROPERTY IS LOCATED AT 4323 NORTH FREDERICK PIKE AND IS IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBER 30-A-118 IN THE GAINESBORO MAGISTERIAL DISTRICT - APPROVED Planner I Cheran addressed the Board on behalf of this item. He advised that the property is currently zone RA (Rural Areas). He explained that the applicant had been cited for establishing a non-conforming use on this property without obtaining a Conditional Use Permit. Planner I Cheran stated that the property previously housed a restaurant; however, the proposed use would be Minute Book Number 29 Board of Supervisors Regular Meeting of 01128104 322 a lesser impact on the surrounding community than a restaurant. He advised that the Planning Commission recommended approval with the following conditions: - All review agency comments and requirements shall be complied with at all times. - An engineered site plan shall be submitted to and approved by Frederick County. All identified improvements shall be installed within six (6) months of CUP approval. All parking shall be in compliance with zoning district standards. No outdoor storage of equipment or materials will be permitted on site. - Signage shall be limited to one (1) illuminated free standing business sign; not to exceed fifty (50) square feet in area and ten (10) feet in height along the frontage of North Frederick Pike (Rt. 522). Any existing signage shall be removed. - Any expansion or change of use will require a new Conditional Use Permit. Planner I Cheran informed the Board that the Planning Commission removed two ofthe conditions recommended by staff. They were: - No more than five (5) customers at anyone time allowed on site. - No more than two (2) business vehicles allowed at this site. He concluded by saying that the applicant was present to answer any questions. Supervisor Dove asked about the requirement for the applicant to provide an engineered site plan. He stated that this was a small business and that site plans are very expensive and he was concerned about the possible fiscal impact on this particular business. Planner I Cheran responded that the County's site plan fee is $500 for a minor site plan, which shows designated parking areas, ingress/egress, and signage. This particular site would require a minor site plan. Ron Steepleton, property owner, appeared before the Board on behalf of this application. Supervisor Dove asked Mr. Steepleton ifhe was aware of what he needed to do to comply with the permit conditions. Mr. Steepleton responded that he was not, but would abide by whatever conditions are required for this permit. Chairman Shickle opened the public hearing on this application and asked any members of the public wished to address this item. There were no public comments. Chairman Shickle closed the public hearing. Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 323 Chairman Shickle asked ifthe existing building on the property could be used as a residence. Planner I Cheran responded no and stated that the building was formerly used as a restaurant. Supervisor Ewing stated that the Planning Commission had recommended approval with the removal of staff recommendations 3 and 5. Planner I Cheran responded that the Commission did not believe that having more than five customers on the site at one time would negatively impact the community. He went on to say that the Commission removed that condition along with the requirement of no more than two business vehicles on site at one time. Chairman Shickle asked ifthe site plan requirement was in the Ordinance. Planner I Cheran responded yes. He explained that a site plan was required because the applicant was bringing the site into conformance and will have to show ingress/egress, parking, signage, etc. Administrator Riley advised that the Board could amend the ordinance in the future, if they feel this requirement is too onerous; however, there was nothing that could be done tonight to change the ordinance requirements. Supervisor Dove asked ifthere should be some wording in the motion to specify a minor site plan be submitted rather than simply an engineered site plan. Planner I Cheran responded no. Upon a motion by Supervisor Dove, seconded by Supervisor Ewing, Conditional Use Permit application #11-03 was approved with the following conditions: 1. All review agency comments and requirements shall be complied with at all times. 2. An engineered site plan shall be submitted to and approved by Frederick County. All identified improvements shall be installed within six (6) months of CUP approval. All parking shall be in compliance with zoning district standards. 3. No outdoor storage of equipment or materials will be permitted on site. 4. Signage shall be limited to one (1) illuminated free standing business sign; not to exceed fifty (50) square feet in area and ten (10) feet in height along the frontage of North Frederick Pike (Rt. 522). Any existing signage shall be removed. 5. Any expansion or change of use will require a new Conditional Use Permit. The above motion was passed by the following recorded vote: Richard C. Shick1e - Aye Barbara E. Van Osten - Aye Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 324 Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye PUBLIC HEARING -CONDITIONAL USE PERMIT #12-03 OF SHARED TOWERS. INC.IREYNOLDS STORE TOWER PRESENTED BY GREENW AYENGINEERING FORA 195-FOOT HIGH LATTICE TYPE TELECOMMUNICATIONS FACILITY. THIS PROPERTY IS LOCATED AT 8840 NORTH FREDERICK PIKE AND IS IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBER ll-A-39 IN THE GAINESBORO MAGISTERIAL DISTRICT - APPROVED Planner I Cheran addressed the Board on behalf of this application. He advised that the applicant is proposing to construct a 195- foot lattice-type telecommunications facility. The applicant is requesting permission to use lattice-type material pursuant to Zoning Ordinance Section 165- 48.6(B) 2, which permits the use ofthis material for newly constructed towers located outside of the Urban Development Area and not adjacent to properties designated as historic areas. Planner I Cheran advised that the Planning Commission recommended approval with conditions. He concluded by saying that the applicant was represented by Evan Wyatt, Greenway Engineering, who was present to answer any questions. Mr. Wyatt informed the Board that he had a few points he would like to address: The project was previously approved. - The building permit has been applied for and issued and the contractor is underway. - The applicant is seeking approval to change the type of tower only. Chairman Shickle opened the public hearing on this item and asked if there were any members of the public who would like to speak to this application. There were no public comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor Dove, seconded by Supervisor Forrester, Conditional Use Permit application #12-03 was approved with the following conditions: 1. All Zoning Ordinance req uirements and review agency comments shall be addressed and complied with at all times. 2. The tower shall be available for co-locating personal wireless services providers. 3. A site plan shall be approved by the County. 4. The tower shall be removed by the applicant or property owner within twelve (12) months of abandonment of operation. Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 325 5. A certified Virginia engineer shall provide verification that the tower is designed, and will be constructed, in a manner that, should the tower collapse for any reason, the collapsed tower will be contained in an area around the tower, with a radius equal to or lesser than the setback, measured from the center line of the base of the tower. 6. In the event a telecommunications tower is not erected within twelve (12) months ofthe approval of this Conditional Use Permit, then the CUP will be deemed invalid. The above motion was passed by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye Supervisor Van Osten asked staff to look at some of the disguise techniques now available for cell towers as opposed to lattice structures. PUBLIC HEARING - 2003 COMPREHENSIVE PLAN UPDATE. AMENDMENT UPDATES TO THE FREDERICK COUNTY COMPREHENSIVE POLICY PLAN. THESE AMENDMENTS HAVE OCCURRED FROM SEPTEMBER 27. 2000 THROUGH OCTOBER 1. 2003. - APPROVED Planning Director Eric Lawrence appeared before the Board on behalf of this item. He reviewed the proposed amendments for inclusion in the Comprehensive Land Use Policy Plan. Director Lawrence advised that the County had undertaken a number of studies and policy amendments in the last three years and tonight he would present nine items to be incorporated into the Policy Plan. The nine areas for inclusion are: 1. DOROTHY CARBAUGH PROPERTY - URBAN DEVELOPMENT AREA (UDA) - Approved by the Board of Supervisor on October 10, 2000. 2. CLEARBROOK REST AREA - SWSA EXPANSION. Approved by the Board of Supervisors on July 11, 2001. 3. MCTIERNAN PROPERTY - URBAN DEVELOPMENT AREA (UDA) EXP ANSION. Approved by the Board of Supervisors on December 12, 2001. 4. ROUTE 277 AREA - SWSA EXPANSION Approved by the Board of Supervisors on February 27, 2002. 5. KATHRYN M. PERRY PROPERTY - SWSA EXPANSION Approved by the Board of Supervisors on April 22, 2003. 6. RUSSELL PROPERTY - UDA and SWSA EXPANSION Approved by the Board of Supervisors on February 12, 2003 7. WWW.LC - SWSA EXPANSION Approved by the Board of Supervisors on May 28, 2003. Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 326 8. JOINT LAND USE PLAN - THE TOWN OF STEPHENS CITY. AND FREDERICK COUNTY Approved by the Board of Supervisors on July 9, 2003. 9. NORTHEAST LAND USE PLAN Adopted by the Board of Supervisors on August 13, 2003. Director Lawrence concluded by saying that staff has consolidated all of this information into one map and will incorporate it into the Comprehensive Land Use Policy Plan as a lOth item. Chairman Shickle opened the public hearing on this item and asked if there were any members of the public present who would like to speak to this item. Chuck Maddox, GW Clifford Associates, appeared before the Board on behalf of the Huntsberry family. He advised that the heirs must sell their property, which is located adjacent to the Northeast Land Use Plan area, and they have a fiduciary responsibility to maintain the value of the property. Mr. Maddox stated that the heirs have been watching the development of the Northeast Land Use Plan and their property at one time was partially located within the area; however, it was removed by the Board at the August 2003 meeting. He advised that purchase of the property for historic preservation was being pursued by the Battlefields Association. He concluded by saying that the heirs would like to have the NELUP line restored to its previous location; however, ifthat could not be done this evening then it was the heirs' intent to file a request with the Board to do so at a later time. There being no further public comments, Chairman Shickle closed the public hearing. Upon a motion by Supervisor Tyler, seconded by Supervisor Forrester, the Board adopted the land use policies as presented for inclusion in the 2003 update of the Comprehensive Land Use Policy Plan. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye OTHER PLANNING ITEMS SUBDIVISION APPLICATION #07-03 OF RONALD G. MCDONALD. LLC - DIVISION OF LOT B. BUGARSKI LOTS - APPROVED Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 327 Zoning Administrator Patrick Davenport addressed the Board on behalf of this item. He advised that the property, located in the Shawnee District, is zoned RP (Residential Performance) and contains approximately 40,000 square feet. A garage is under construction on proposed lot B2. Access to the lots will be via shared access easement. Zoning Administrator Davenport advised that the Master Development requirement has been waived for this site and the Planning Commission recommended approval. He concluded by saying that this subdivision satisfies all of the Zoning Ordinance and Subdivision Requirements and the garage meets the primary structure set backs. There were no public comments regarding this application. Upon a motion made by Supervisor Smith, seconded by Supervisor Forrester, Subdivision application #07-03 was approved. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda 1. Tyler - Aye SUBDIVISION APPLICATION #16-03 OF SOLID WOODS - APPROVED Zoning Administrator Patrick Davenport addressed the Board on behalf ofthis application. He explained that this is an application by Greenway Engineering to create five lots on Redbud Court. Zoning Administrator Davenport advised that the rezoning ofthis property was approved by the Board of Supervisors on October 8,2003 with a $10,089.00 per lot proffer to be paid. He concluded by saying that the Master Plan requirements have been waived for this application per the Zoning Ordinance. Zoning Administrator Davenport concluded by saying that the Planning Commission recommended approval and this application satisfies the requirements ofthe Zoning Ordinance and Subdivision Ordinance. Chairman Shickle asked ifthe Senseny Glen Subdivision had curb and gutter? Zoning Administrator Davenport responded no. Supervisor Forrester asked who was responsible for the upkecp ofthe road efficiency, VDOT or the homeowners' association, and if that is enforceable. Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 328 Zoning Administrator Davenport responded that it would be the responsibility of the homeowners' association and it was enforceable. Chairman Shickle asked ifthere were any public comments regarding this application. Gary Scott, Opequon District, asked about the proffer amount. Chairman Shickle responded that it was $10,089.00. Supervisor Tyler asked about the Master Development Plan waiver. Zoning Administrator Davenport responded that the waiver was granted because the proposed lot sizes were consistent with the zoning district, no new roads were being created, and the project was developed in a harmonious manner. Director Lawrence responded that the waiver was also granted based upon the density of the project, as the applicant was proposing only five new lots. Upon a motion made by Supervisor Forrestcr, seconded by Supervisor Smith, Subdivision Application #16-03 was approved. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye MASTER DEVELOPMENT PLAN #09-03 OF SOUTHERN HILLS SUBDlVISION- DEFERRED UP TO 90 DAYS Planner II Jeremy Camp addressed the Board on behalf ofthis application. He reviewed the proposal for a 250 single-family detached urban housing subdivision with minimum lot sizes of 12,000 square feet, curb & gutter, sidewalks, and streetlights. Planner II Camp advised that a Master Development Plan for 225 single- family detached was approved in March of2002; however, the new owner is requesting a revision to the approved Master Development Plan to allow 250 single-family detached homes on 12,000 square foot lots. The revised development plan calls for 16 acres of open space. There is also 11 acres of flood plain and 1 acre of steep slopes. Planner II Camp went on to say that the approved proffers state that no more than 250 homes can be developed on the site. He advised that the Planning Commission recommended approval ofthe revised Master Development Plan and that the applicant requests that the Board grant staff administrative approval ofthis Master Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 329 Development Plan. Planner II Camp concluded by saying that Evan Wyatt, Greenway Engineering, was present to represent the applicant and answer any questions. Mr. Wyatt reviewed the following issues with the Board: - One of the outstanding issues was one offence repair along a shared property line. He stated that the developer has talked with the land owner and has agreed to pay 50% of the cost ofthe fence. - A bicycle plan has not been devised as his firm does not know how to link it to their proj ect. The applicant agrees to wider sidewalks. - The applicant is amenable to working with Parks and Recreation on a bicycle trail should one be developed. - The Stickley Drive proffer is vague. - The applicant would be happy to work with the County on reducing the number of permits to 20 until Stickley Drive is extended. The applicant is still willing to offer this if the Board feels it is important. Chairman Shickle asked about the proposed relocation of the 1-81 interchange and how it may of may not impact this development or vice versa. Mr. Wyatt stated that both the Stephens City and Frederick County Comprehensive Plans show the interchange further south of the proposed development. Chairman Shickle stated that he was concerned about the relationship of this development to the proposed interchange. He asked how the interchange will relate to Southern Hills and stated that ifthe applicant wanted favorable support from him they must show how this development will work with the proposed interchange, as he had worked long and hard on relocating the proposed interchange. Mr. Wyatt stated that the actual location ofthe proposed interchange is difficult to determine at this time, but he felt it would be located on the west side of Town Run Lane and would not impact his client's development. Assistant Administrator Tierney advised that the Stephens City Land Use Plan is very much conceptual and without an actual design for the proposed interchange there is no way to determine any impact. Chairman Shickle stated that he was concerned that the turns would be too sharp and this development could impact the proposed interchange and he did not want that to happen. Minute Book Number 29 Board of Supervisors Regular Meeting of 01128/04 330 Supervisor Ewing stated that he had the some concerns as Chairman Shickle regarding Stickley Drive and he felt the turns should be broad and sweeping. He stated that there were still VDOT concerns and he wanted to know what kind of impact studies had been done and what they show. Mr. Wyatt responded that in the approved rezoning, the applicant proffered signalization for the intersection of Stickley Drive and Route 277. Supervisor Ewing asked what category of intersection Stickley Drive and Route 277 was? Mr. Wyatt responded that he did not know. Supervisor Ewing expressed his concern about the lack of buffering between Hayvenhurst Drive and the residential properties to the east. He asked about sidewalks and/or a walking path along Town Run. Mr. Wyatt responded that all residential lots within the development would have sidewalks to connect the different neighborhoods. Vice Chairman Van Ostcn stated that the revised plan was better than the original; however, she still had some concerns: 1. Why the five-foot sidewalk could not be extended to the intersection of Stickley Drive and Town Run Lane. 2. She was concerned about traffic and the proposed improvements to Stickley Drive. 3. She was troubled by the open space access through the Ewing Family Cemetery because she could see that facilitating vandalism, etc. Mr. Wyatt responded to her concerns in order: 1. The developer does not have the right-of-way available off ofthe property to extend the sidewalk. 2. The developer is committed to overlaying Town Run Lane and providing guardrails and signalization. 3. The developer is committed to conveying a lot adjacent to the cemetery to the Ewing Family. The homeowners' association will have an understanding that the lot has been conveyed to the Ewing Family, but if the lot falls into disrepair, then the HOA will go in and clean it up. Supervisor Ewing advised that he would like for the property owners to have formal notification that the development is surrounded on three sides by a lagoon, a pig farm, and a salvage yard. He went on to say that he was having trouble approving this request tonight, but he did appreciate the improvements that had been made. He asked ifthere was any way this request could Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 331 be deferred for a couple of months, in light of the Hayvenhurst Drive problems and traffic on Route 277, so the applicant could work with staffto get these issues resolved. Mr. Wyatt responded that a lot of those issues had been approved during the rezoning and the revised plan conforms to that. He went on to say that he was not sure what new information the traffic studies would provide and he did not think a delay was appropriate. Chairman Shickle asked Planner II Camp how many homes could be constructed if the revised Master Development Plan was not approved. Planner II Camp responded 225. Supervisor Forrester stated that if the plan was not approved then the applicant could construct 225 homes or come back to the Board. She then asked Chairman Shickle ifhis concerns regarding the 1-81 interchange had been satisfied. Chairman Shickle stated that he did not feel that they had been satisfied. Supervisor Ewing stated that he was looking at the applicant as "trying to be a good neighbor" and working with the neighborhood as well as working with staff to buffer the development from the salvage yard. Supervisor Dove stated, with regard to the interchange, that he would like to know where it would come in and out because ifit comes out on Town Run, then we could end up with a four-lane. He concluded by saying that traffic was an issue for him with this project and he would like to see some type of plan for the interchange. Chairman Shickle asked Mr. Wyatt ifthere was room for improvement or did the applicant stand by this plan. Mr. Wyatt thought it would be appropriate to give the applicant some direction and they would take a look at the suggestions. Mark Smith, Greenway Engineering, advised the Board that Arcadia Development Company had purchased this property from David Holliday. He stated that traffic numbers were generated based on 250 lots. He explained that the 225 lot traffic numbers were done on 15,000 square foot lots as a yield. Mr. Smith went on to say that his client wanted 250 units because of market conditions. He stated that they wanted to do what was right and make the best situation for the Minute Book Number 29 Board of Supervisors Regular Meeting of 01128104 332 County. Mr. Smith concluded by saying that if they walk out of here this evening, they must have very clear direction from the Board regarding how to proceed. Gary Scott, Opequon District, addressed the Board and stated that he wanted to confirm what was going to be done regarding the fence repairs. He concluded his remarks by saying traffic is a concern. Supervisor Ewing advised that he would like to see the following: - The applicant work on buffering the south side ofHayvenhurst Drive from the salvage yard. - No building permits issued until Stickley Drive is completed. - More information from VDOT about their concerns and the traffic impact on Route 277. - Notification to future buyers about existing conditions of adjacent properties (salvage yard, lagoon, and pig farm). Chairman Shickle asked the applicant ifthat was specific enough. Mr. Wyatt responded yes. Director Lawrence advised the Board that staff was comfortable with the Board's direction and would work with the applicant. Upon a motion by Supervisor Ewing, seconded by Vice Chairman Van Osten, Master Development Plan #09-03, Southern Hills Subdivision was deferred for a period up to 90 days to resolve out standing issues. The above motion was adopted by the following recorded vote: Richard C. Shickle - Aye Barbara E. Van Osten - Aye Gary W. Dove - Aye Bill M. Ewing - Aye Gina A. Forrester - Aye W. Harrington Smith, Jr. - Aye Lynda J. Tyler - Aye BOARD LIAISON REPORTS There were no Board Liaison Reports. CITIZEN COMMENTS John Hood, Opequon District, addressed the Board concerning a storm water problem in Albin Village. He advised that he had approached the County and had it inspected, but there has been no change. He would like the Board of Supervisors to see that future development ensure Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 333 property storm water drainage. He stated that this particular development adjacent to his home was completed last year. Administrator Riley asked Mr. Hood to provide him with a letter outlining the problem and he would proceed with getting it checked out. Bruce Boyle, Redbud District, supported the Board's action to move citizen comments to the end of the meeting. He believed that this move would make for a more civil meeting. Mr. Boyle concluded by thanking Deputy Director of Planning Chris Mohn for helping him navigate the County processes. Kevin Kennedy, Gainesboro District, addressed the Board's actions from the January 14, 2004 meeting. He stated that it was no surprise that the Board voted to put Route 37 East back on the project list. He addressed the move of citizen comments to the end of the meeting and the replaccment of Supervisor Smith as Vice-Chairman. Mr. Kennedy stated that these two moves were not part of the campaign promises made during the election. Chairman Shickle advised Mr. Kennedy that his remarks were out of bounds and to stick to issues pertinent to the Board's work. Mr. Kennedy read an article from The Winchester Star regarding the January 14, 2004 meeting and the moving of citizen comments to the end of the meeting. He felt the quotes in the article showed who was on the side ofthe citizens. Mr. Kennedy concluded by asked the Board to reconsider their vote on this matter. Mike Weber, Stonewall District, expressed his concern over the $450,000.00 contribution the County gave to H.P. Hood for their expansion. He did not think there was a need to givc moncy to companies to get them to locate herc. He stated that there were over 1,000 businesses in the County and he did not feel his tax dollars should subsidize large companies. Mr. Weber urged the Board to quit giving away tax payer dollars to entice companies to come here. There being no further citizen comments, Chairman Shickle closed this portion of the meeting. BOARD OF SUPERVISORS COMMENTS Supervisor Tyler addressed Mr. Hood's concerns. She asked if an "as built" requirement would address these types of issues. Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04 334 Assistant Administrator Tierney responded that he was not sure if it would. Supervisor Tyler asked about County Court Reporters taking the minutes of the Board meetings. Administrator Riley advised that the Board was given verbatim minutes from County Court Reporters, condensed summary minutes, and action minutes to review. He stated that he owed the Board an estimated cost for the Court Reporters' services. Supervisor Tyler advised that she would like to see a cost and time analysis for paid staff as well. Supervisor Tyler advised that she would like to see a land use plan for the 277 triangle area. Supervisor Ewing stated that he supported Supervisor Tyler's 277 request. ADJOURN UPON A MOTION MADE BY SUPERVISOR TYLER, SECONDED BY SUPERVISOR SMITH, THERE BEING NO FURTHER BUSINESS TO COME BEFORE THIS BOARD, THIS MEETING IS HEREBY ADJOURNED. (TIME 9:45 P.M.) \L..J2.-5( ~~-L.L.. Richard C. Shickle Chairman, Board of Supervisors JOhC21t! i Clerk, Board of Supervisors Minutes Prepared By: ~ Et,~U Jay . Ti bs Deputy Clerk, Board of Supervisors Minute Book Number 29 Board of Supervisors Regular Meeting of 01/28/04