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HomeMy WebLinkAboutJuly 10, 2002 Regular Meeting 137 A Regular Meeting of the Frederick County Board of Supervisors was held on July 10,2002, at 4:45 P.M., in the Board of Supervisors' Meeting Room, County Administration Building, 107 North Kent Street, Winchester, Virginia. PRESENT Chairman Richard C. Shickle; Vice Chairman W. Harrington Smith, Jr.; Robert M. Sager; Margaret B. Douglas; Sidney A. Reyes; Gina A. Forrester; and Lynda J. Tyler. CALL TO ORDER Chairman Shickle called the meeting to order. BOARD RETIRED INTO CLOSED SESSION Upon motion made by Supervisor Smith, seconded by Supervisor Sager, the Board retired into Closed Session in accordance with the Code of Virginia, 1950, as amended, Section 2.2-3711, Subsection A (1) and (7) to Discuss Personnel and Legal Issues. It was further requested to add Section 15.2-2907 Paragraph D for Discussion of Boundary Line Adjustments. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye BOARD WITHDRAWS FROM CLOSED SESSION Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, the Board withdrew from Closed Session. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye BOARD RECONVENED INTO REGULAR SESSION Upon motion made by Supervisor Smith, seconded by Supervisor Sager, the Board reconvened into Regular Session and certified nothing other than what was noted as reason for going into Closed Session was discussed. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 138 The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye ADMINISTRATOR RILEY RECEIVES MERIT AND COLA INCREASE OF 6 PERCENT Upon motion made by Supervisor Smith, seconded by Supervisor Douglas, County Administrator John R. Riley, Jr., is to receive an increase in pay equaling 6% to include COLA and Merit. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye BOARD RECESSES WORKSESSION REQUEST BY VICKY WEST FOR PRESENTATION ON PUBLIC WATER STRATEGY BY SAVE THE WATER AND VISION Vicky West, spokesperson for Save the Water, appeared before the Board to thank them for their time and participation in this presentation. She advised that the following speakers would be presenting the Program on Public Water Strategy: 1. Jim Giraytys, resident of Back Creek District and meteorologist. 2. Joy Shull, resident of Stephens City and member of Stephens City Town Council. 3. Ted Dean, PG, with ATS International, Inc. of Christiansburg, Virginia. 4. Kyle Schilling directed the U.S. Army Corps of Engineers, Institute for Water Resources (IWR) in Alexandria, VA and the Water Resources Support Center in Davis, California. His background on this subject is extensive. Jim Giraytys presented the Board with an informational packet containing information on the Drought - Past, Present, and Strategies. He advised the Board of what has transpired from the drought of 1895 until present as measured by the Palmer Index. He presented his thoughts on EI Nino advising it is either neutral or not good for water supplies in this region. He feels drought Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 139 strategies too often are based on the "hydro-illogic cycle" rather than on strategic planning. (A copy of his complete presentation is on file in the Office of the County Administrator.) Joy Shull presented the Board with a report entitled "Stephens City Quarries" a Priceless Asset. Ms. Shull advised that in 1983 Stephens City bought the three quarries for which they paid $280,000. In 1991 Stephens City and the Frederick County Sanitation Authority entered into a contract wherein the Sanitation Authority was to draw three million gallons a day from the quarries. She further advised that in 1994 the James Diehl Plant went on line. In 1996 the County had 38 inches of rain, the wettest year on record and the quarries were 150 feet below the original level. She further advised that in the early 90's there were 566 million gallons of water in the quarries, and in April of2002 the level had dropped to 50 feet of water in the South Quarry, and today there is none. She further advised that she feels Stephens City acted in good faith based on the scientific information provided to them. Ted Dean presented additional information on Stephens City Quarries as a Water Source. He advised that data had been collected monthly to semimonthly at 12 monitoring wells and the quarries since July 1993, and that pumping was initiated in January 1994 from the North Quarry. He explained by way of graphs what had transpired at the various quarries since the pumping began and how the water level had dropped. He further advised that he felt there are conspicuous deficiencies in the science supporting the failed prediction that is part of the Study of the Stephen City Quarries. He explained in detail how this decision was reached. He asked in looking at the quarry at Clearbrook sites, ifthe County could expect different results with the same methods? Kyle Schilling - Addressed the historic and projected fresh water withdrawals and explained about the Federal Planning Process and the objectives. He also spoke to what he would recommend when looking at future requirements and the agencies he felt could help with this process. Jim Giraytys did a wrap up of what had been presented to the Board. He thanked the Board for their time and asked ifthey had any additional questions to please let him know. Supervisor Sager stated that he came to listen, to be receptive; however, he had hoped that some data would have been presented to have included information dealing with the Shenandoah River. He would like to know all the water resources that are available. Jim Giraytys explained that in making a decision what information would be presented, it was decided that information would not be part of the presentation. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 140 Supervisor Sager further advised that he had questions about adjoining jurisdictions such as West Virginia and what availability might be possible there. Supervisor Tyler asked about a worse case scenario. If the County stays on the cycle they are on now, what could happen in five to ten years? Jim Giraytys referred to the drought of the thirties. He advised that all planning has to be in the Comprehensive Plan, up front. Problems can be solved, but they have to be dealt with. Supervisor Forrester referred to the study of the Stephens City Quarry and the deficiencies within the study in some numbers that were used. Jim Giraytys addressed this, advising that he felt there were certain things that were not included. This concludes the worksession. REGULAR MEETING CALLED TO ORDER - (7:15 P.M.) Chairman Shickle called the meeting to order. INVOCATION The invocation was delivered by Reverend Shallenburg ofthe Church of the Nazarene. PLEDGE OF ALLEGIANCE ADOPTION OF AGENDA Administrator Riley advised he had a request dealing with Kernstown Battlefield that he would like to add. Upon motion made by Supervisor Smith, seconded by Supervisor Douglas, the agenda was adopted, as amended, by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye CONSENT AGENDA Administrator Riley suggested the following tabs for approval under the Consent Agenda: 1. Finance Department Receives Certificate of Achievement for Excellence in Financial Reporting for Annual Financial Report for Fiscal Year Ending June 2001 - Tab I; 2. Parks and Recreation Commission Report - Tab J; Minute Book Number 28 Board of Supervisors Meeting of 07/l 0/02 141 3. Landfill Oversite Committee Report- Tab K; 4. Subdivision Application #12-02 of Kim & Marietta Walls for Townhouses - Tab S; 5. Road Resolution, Red Fox Run, Section I - Tab V. Upon motion made by Supervisor Sager, seconded by Supervisor Smith, the consent agenda as noted above, was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye CITIZEN COMMENTS Whit Wagner, Stonewall District, an architect and planner, and has worked in Frederick County for fifteen years. He is one of the owners ofthe Fort Collier Industrial Park and the Corps of Engineer Building. He advised that during his years of being an architect he has worked in over forty states, and 250 different jurisdictions around the country, and he can say without reservation, that Frederick County Staff is without reservation from top to bottom one ofthe most professional, helpful, courteous and an efficient group of people that he has worked with in a long, long time. He wanted to thank all the staff for all they do. Bill Shepherd, Gainesboro District, addressed the issue Chairman Shickle spoke to at a previous meeting dealing with the "Citizen Comments" portion of the agenda. He feels if this section is deleted from the agenda it will send a very bad message to the citizens of Frederick County. He feels cutting off "Citizen Comments" is cutting off democracy at the knees. Bruce Armstrong, Back Creek District, works for an HV AC company in the County and one system they install is a Pump and Dump, and due to the way this system works it concerns him. With this system a homeowner could be pumping 30 gallons of water a minute out of the ground, out of their well, and dump it on top of the ground. It may get back into the aquifer, but not in the aquifer that he is getting his water from. If your heat pump runs eight hours a day you are pulling out 30 gallons a minute every day for heating and cooling. There is nothing in the County right now that says you cannot do it. The more houses that are being built, more wells are going dry. Everybody is wondering why. He feels some of it could be coming from these pump and dumps. Sam Lehman, Back Creek District, referred to the Certificate of Achievement for Excellence Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 142 in Financial Reporting. He referred to a recent article dealing with the Virginia State Retirement Fund, and a statement made by their Chief Financial Investment Officer stating they lost 2 Y, billion last quarter due to their investments, that is about 7% of their money. He referred to Frederick County and its investments advising that at the end oflast fiscal year, June 30, 2001, the County had 75 million of surplus, 4.5 was cash, 1.2 million in CD's, 34.5 million invested in local government investment pool, 3.2 in Sun Trust, 4.4 in Alex Brown, 17.4 in some bond pool, and 9.7 in some Evergreen Fund. He feels no one in this County has any idea or how big a hit we have taken over our 75 million during the last year. That money was raised from Frederick County taxpayers by underestimating revenue and over estimating spending. He does not feel any Board intentionally appropriated any money to go into a surplus fund which adds up to $75 million at the end oflast year. He further stated that the losses do not show up on our books, maybe because we are buying bonds with it and we wouldn't see it until something goes "belly up." David Darsie, Stonewall District, advised that he has appeared before the Board twice this year and talked to the members about the Sanitation Authority as a failed water production facility. He has always wondered, looking at the studies and asked why? What was the disconnect between what the scientific studies from Applied Science Cooperation International said we were going to get from the Stephens City Quarries when that was just opposed to the actual production. He feels this just begged for an answer and he could not get it. He thanked VISION for putting on their demonstration tonight and giving the Board the answer. It has to do with the recharge. The water is not there to recharge. He advised that he had hoped the Board would delay their action on the Northeast Land Use Plan until more scientific information was provided. He feels there has been a total disconnect between production and prediction. Mike McMillan, Opequon District, advised that he is a strategic manager, he addressed an individuals property rights. He also addressed personal income and particularly savings, stating that is the citizens' property right. He referred to the McTiernan property and the fact that it is being proposed to add 300 homes to this property. Using the county's own statistics and planning perimeters, the impact of these 300 homes includes an approximate financial deficit to the County of half a million dollars a year. The effects of these deficits must be compensated for when the County budget is balanced. Everyone knows what a difficult time it was to balance the budget in 2002. The accumulative effects ofthese deficits caused by developments are likely to create a need Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 143 to raise taxes. This is a direct threat to citizens' savings and another property right. He would ask the Board, in the future, to extend their definition of property rights to not only include land, but also personal income as well and the effect on taxes. Catherine Whitesell, Back Creek District, advised of a response she had done about something she had seen on the internet about farm land. She feels Frederick County needs to move now and develop a purchase of development right's program if the agricultural industry, which is Virginia's number one industry, is to survive. Pam Kennedy, Gainesboro District, stated that in Frederick County we have a situation worthy of note, the Chairperson of the Board of Supervisors wishes to "muzzle" the citizens. For whom does this man work, the citizens. She asked why the Chairman wishes to limit citizen commentary? She feels the Board should be honored to be surrounded by an involved citizenry. Perhaps the Board needs to recognize with the growth and development that the Board has fostered, they no longer have the luxury of meeting once a month during the summer. The Board no longer has the luxury oflaid back decision making. Mark Stivers, Stonewall District, thanked VISION for their presentation and thanked the Board for offering the opportunity to a Concerned Citizens Group. In his personal opinion, there is something that Frederick County needs to come to realization about and that is that there is conflict in this community. This conflict is attributable to what he feels has been in this community for a very long time. He feels there has been a way of doing things, and as pressure and as conflicts begin to grow, the County needs to decide for themselves what is right and what is wrong. Ifwe come to the notion that we have to stifle people from saying what is on their mind, then that is a very scary proposition. He asked the Chairman to reconsider his thoughts on possibly eliminating this from the agenda. He referred to an article in today's Winchester Star entitled Valley's Drought Won't End Soon. Forecast Says. He advised that there are some very smart people in this County and he urged that we all work together. Weare in conflict, we need to move forward toward compromise that can only be effective if we use our minds and not our emotions. Kevin Kennedy, Gainesboro District, thanked Supervisor Forrester for her actions at the last Board meeting for which she felt was right. He thanked Supervisor Tyler for her persistence in getting the reevaluation of the Northeast Land Use Plan back before the Board. He advised Chairman Shickle that he feels he has failed to clarify his attitude toward Supervisor Reyes. He feels Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 144 the Chairman does not care about Frederick County having a Board of Supervisors that can work together and respect one another in spite of individual differences. He feels the Board is still in need of a collective vision of what the Supervisors want the County to look like in the future. MINUTES Upon motion made by Supervisor Smith, seconded by Supervisor Reyes, the minutes ofthe Regular Meeting of May 8, 2002, were approved, as presented, by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye BOARD DISCUSSION ITEMS DISCUSSION OF TIME FOR MONTHLY BOARD MEETINGS AND LIMITATIONS ON DURATION AND HOUR OF MEETINGS; ADJOURNMENT- NO CHANGE AT THIS TIME Supervisor Smith advised that he did not feel there should be any changes made. Supervisor Sager advised that he was here to accommodate the public, and was not opposed to having a worksession occasionally before a Board meeting; however, he was not in favor of doing it during the day. Supervisor Douglas advised that she agreed with Supervisor Smith. Supervisor Reyes inquired whether the worksessions would be televised? Adntinistrator Riley explained that the County has a franchise with Adelphia Cable. It has been Adelphia' s decision to televise the Board Meetings starting at 7: 15 P.M. He advised the plans are to have the Planning Commission Meetings televised; however, Adelphia staff is not available to do this; therefore, this is on hold until personnel is available. He further advised he would check with Adelphia to see if they are available to do worksessions during the day. Supervisor Forrester advised that she would like to make an amendment to the motion for the worksessions to be televised, if possible, and if not, the worksessions would be part of the Regular Meeting starting at 7: 15 P.M. Supervisor Reyes seconded this motion to amend. The above motion to amend the current Board meeting schedule, as stated above, was Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 145 defeated by the following recorded vote: Richard C. Shickle - Nay W. Harrington Smith, Jr. - Nay Robert M. Sager - Nay Margaret B. Douglas - Nay Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye Upon motion made by Supervisor Smith, seconded by Supervisor Douglas, the Board meeting times will remain the same, and the Summer meeting schedule will be reviewed next Spring. W orksessions held prior to the regularly scheduled Board meeting time of 7: 15 P.M. will be televised if Adelphia Cable's schedule permits. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye REOUEST FROM SUPERVISOR FORRESTER RE: COMMITTEE APPOINTMENTS - ADMINISTRATOR RILEY TO CHECK INTO THIS AND REPORT BACK AT AUGUST BOARD MEETING Supervisor Forrester advised that she was requesting to have a member added to the Sanitation Authority from Red Bud District. She is asking the Board for an endorsement of this appointment. She further advised that due to the recent redistricting there is more than one member representing the same district and she would like to have this corrected. She further advised that she would like to have a citizen member from each magisterial district and a member-at-Iarge serve on the Finance Committee and the Personnel Committee. Chairman Shickle asked Administrator Riley if the Sanitation Authority would have to change their By-Laws in order to accommodate Supervisor Forrester's request. Administrator Riley advised that was correct, and he felt they would have to change their Articles of Incorporation to add an additional seat. They do not speak to seat by District. Chairman Shickle - On the Finance Committee, it would take an ordinance change? Administrator Riley - That is a possibility, I would need to do some research on that. Supervisor Douglas advised that as long as the Board has good qualified people on the committees, she sees no reason for them to be changed. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 146 Supervisor Tyler advised that she had representation on the Sanitation Authority from her district and she also has representation for some others, and she feels it would be fair that all the magisterial districts are represented on the different committees. Supervisor Sager stated that he felt every district should have a representative. Administrator Riley advised that due to the redistricting a number of Boards, Commissions and Committees were affected by this and perhaps it would be good to just work through those issues rather than looking at an alternative to correct it. He further advised that he will check into this and report back at the Board meeting in August. RECOGNITION OF SPONSORS FOR LITTER-THON Chairman Shickle advised that the Board would like to recognize the following businesses for their support of the County's litter prevention initiative, Frederick County Clean Sweep. Recognizing the environmental and economic impacts of litter, these corporate citizens stepped forward to provide financial support for Frederick County's first community litter clean up held in May: The Zuckerman Company Inc. Southeastern Container Inc.(Representative present) Signet Screen Printing Oakcrest Builders Inc.(Representative present) Captain D's Seafood Restaurants #102 The Chairman further recognized the following volunteers who picked up litter: Clearbrook 4-H Club Golden Horseshoe 4-H Club Whitehall Untied Methodist Church Youth Group Brothers in Christ/First Assembly of God Grafton School Stephens City Girl Scouts Cub Scout Pack 63 The Adams Companies (Representative present) Supervisor Tyler advised that this is a program that she is hoping will become a biannual event in Frederick County to raise awareness ofthe community effort to improve the quality of life in Frederick County. She thanked everyone for their assistance and for the corporate sponsorship. JOHN STEZEL APPOINTED TO THE AGRICULTURAL DISTRICT ADVISORY COMMITTEE FROM OPEQUON DISTRICT Upon motion made by Supervisor Sager, seconded by Supervisor Smith, John Stezel was appointed to the Agricultural District Advisory Committee from Opequon District. This term will begin on July 10,2002. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 147 The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye ANNA CAMPBELL APPOINTED TO THE SHAWNEELAND SANITARY DISTRICT ADVISORY BOARD Upon motion made by Supervisor Douglas, seconded by Supervisor Forrester, Anna Campbell was appointed to the ShawneeLand Sanitary District Advisory Board. This is a three year term. The term will begin on July 10, 2002 and expire on June 30, 2005. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye KIDS TIERNEY AND ERIC LAWRENCE APPOINTED TO NORTHERN SHENANDOAH VALLEY REGIONAL COMMISSION Upon motion made by Supervisor Sager, seconded by Supervisor Reyes, Assistant County Administrator Tierney and Planning Director Eric Lawrence were appointed to the Northern Shenandoah Valley Regional Commission. This is a two year term. The term will begin on September 30, 2002 and expire on September 30, 2004. WATER AND SEWER FACILITIES PLAN FOR THE NORTHEASTERN SEWER AND WATER SERVICE AREA - (PRESENTED AT MAY 22. 2002 BOARD MEETING) - APPROVED Engineer Director Wellington Jones appeared before the Board advising that he was appearing before the Board again to present the Sewer and Water Plan for the Northeastern Service Area. He further advised that this plan has been reviewed by the Planning Commission at which time they felt it was in accord with the County's Adopted Comprehensive Plan. He further advised that the Plan had a 20 inch water main along the Winchester and Western Railroad from Clearbrook south to their existing lines in the Stonewall Industrial Park. From Clearbrook north to Rest there is a 12 inch line that parallels Route 11. There is also a 6 inch sanitary sewer forced main extending from Rest along Route 11 south to Clearbrook where it increases in size to 8 inch sanitary sewer Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 148 forced main that parallels the Winchester and Western Railroad to I-81 where it ties into their existing lines in the Fort Collier Industrial Park. The water lines are sized to provide one to 1.5 million gallons per day north from Clearbrook to Rest. The full production of their northern water treatment plant under construction at Clearbrook are six million gallons a day from Clearbrook south to their existing service area. Sewer lines have a total capacity of one million gallons, and that is felt to be adequate capacity for the area designated for development within the Comprehensive Plan. Supervisor Smith read the following memorandum placed in the agenda packet for the meeting, it reads as follows: I am asking John Riley to place the Northeast Water and Sewer Plan on the agenda for our July 10,2002, meeting. I am also asking Wendy Jones to make a short presentation of the plan. Following his presentation, it is my intent to make a motion to approve the plan. I regret the confusion and problems caused by my vote on May 22, 2002. As I have said publicly, I misunderstood the motion on May 22, 2002, and did not vote as I had intended on this matter. I recognize Supervisor Gina Forrester's objection, under Robert's Rules of Order, to my motion on June 12,2002, to "reconsider" our vote on May 22,2002. I also recognize the county attorney's opinion that the Board's vote on June 12,2002, would be legally upheld. I do not want to see any taxpayer dollars spent defending my good faith efforts to correct a vote I made in error. I trust this action will meet with everyone's satisfaction and eliminate the need for any court actions by anyone. Thank you in advance for your cooperation in this matter. Supervisor Smith moved to approve the Sanitation Authority's Plan for water and sewer in the Northeastern section of Frederick County. Supervisor Sager seconded the motion. Supervisor Forrester advised that she did not feel the request is substantially in accord with the County's 2000 Comprehensive Policy Plan. She referred to page 8 - 9, it states, the location of public water and sewer lines determines where urban development will occur. The Urban Development Area described by Frederick County Comp Plan is roughly the same size as the service area for public sewer and water. Because sewer and water facility location determines the location of urban development, great care is needed in planning where such facilities will be provided. Ifthe Board votes to approve this plan then she feels the Board has just erased having an Urban Development Area and that is not in accord with the County's Comprehensive Policy Plan. Supervisor Tyler read the following statement: I am asking you as fellow supervisors to consider what you are about to do in - - promised made. This plea is based on three things. Natural resource protection, safeguarding the average Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 149 citizen from harm and the County's Comprehensive Plan. Save the Water and the concerned citizens came and they paid thousands of dollars of their own money, thousands of dollars, to present this information. These are also made by expert analysis and unbiased opinion. It was reported in today's paper that this was from someone who had never set foot in this county, thank God they haven't, this is unbiased information, pure science is what this is. Her first point is resource protection. When she listened, especially to Mrs. Shull with the Stephen City Quarries, she wanted to know could these results happen in the Stonewall District around the Clearbrook Quarries. Mr. Jones has not shown that he can extract 1.5 million daily from the five quarries, yet you want to vote to have him expand his capacity to go anywhere between four and eight million gallons a day before it is a proven and reliable source of water. She feels it is simply prudent and responsible and reasonable for us to see if we can get 1.5 before we have the devastation that happened in Stephens City happen in the Clearbrook area. She would also like to be shown by his word or record before the Board votes on this request. She further stated that this is the same authority and science that told the Board that Stephens City quarries had a reliable yield of 4.9 million gallons a day and 3.2 in drought conditions. Yet right now it is less than 700,000 gallons, 20 percent of capacity. To her, frankly, the science means nothing. She wants to see the water before expansion. The second point is the local governments' responsibility for the safety and welfare of the average hard working citizen. The Board Members are in office to protect their welfare, safety and physical health. The approval of the Northeast SWSA will not provide for these protections, just ask the residents of Stephens City what the SWSA had done for them, wells have gone dry, cones of depression have appeared, hardships for the agriculture community with a loss of springs and the devastation of the Stephens City Quarries. This occurs when you have draw downs and plans based on the best case scenarios. She further advised she has just received a letter from another constituent. Wells are going dry in her district, like crazy, in her area where there are not draw downs, it has to do with drought. She does not want to see these things put on line and capacity expanded before the county has a proven reliability and see what happens with 1.5 before the county moves to six to eight million gallons. She recently toured a regional water authority and they state two principles, which she mentioned earlier. That long term plans must be formulated on worse case scenarios, the drought conditions. If you research and look at the Winchester Star back in 2000, Mr. Jones said, the Stephens City Quarries is a very easy solution, a viable solution and it means they do not have Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 150 to look for additional wells. She is wondering whether these are lies, or wishful thinking or is this good science. The four million gallons a day are very reasonable and conservative, this is from the Science Application International that all the data are collected from, well we are not receiving four million gallons out ofthe quarries in drought situations. She feels what seems to be driving the vote ofthis, she really believes is the Shockey property. This is going back to the Comprehensive Plan. It clearly states this property was to be hooked to water and sewer for industrial and commercial uses only. She has consulted land use attorneys outside this area who have shown her state law case studies and Supreme Court Rulings that will support a majority board to deny water and sewer for residential development outside the county's growth management tools called the Urban Development Area, if it has not been violated previously. This growth management tool will only work if you let it and do not violate its principles. She feels ifthe Board allows Shockey to violate it, the Board might as well burn the Comprehensive Policy Plan, because there will be nothing here in Frederick County. This will be the County's first major violation ofthe Comprehensive Plan and she wants no part of it. Not only will this violate the plan she feels it will set a precedence that is going to open thousands of acres of by-right sewered residential development around Frederick County. What is the cost to the taxpayers? A cost analysis in Stonewall District shows it is a tax liability of$7 million and debt service of four schools. She feels what the Board wants to do is owe Shockey some ability to recoup his loses over the speculation of failed industrial application, but violating the Comprehensive Plan and forcing taxpayers to pay for this speculation is wrong. If you sewer and water for residential development, let him follow the process like every other developer has to do in this county, just like they did with the McTiernan property. Expand the UDA, rezone it to RP, that is the process to follow. During this process the historical components, tax liability and infrastructure can be addressed along with providing greater densities to allow even greater profit for him. Ifhe chooses not to follow this process he can always do a by-right five acre lots with a conventual well and septic systems. She has no intention of denying the SWSA to I -81, Route II Corridor, the industrial rezoning the Board has approved, but this vote is really only about the Shockey property. If you don't believe her, why is the Hiett Meadows Subdivision being held up until today's vote? This should convince you this is not about Stonewall School, Rutherford Farms or any other land speculator associated with the Route 11 sewer organizing committee. This is about a by-right SWSA residential development that is a clear defendable position in court. Minute Book Number 28 Board of Supervisors Meeting of 07/1 0/02 151 The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Nay Lynda J. Tyler - Nay Gina A. Forrester - Nay COUNTY ATTORNEY LAWRENCE AMBROGI RESPONDS TO HIS RECENT OPINION ON SUPERVISOR SMITH'S VOTE AT MAY 22.2002 BOARD MEETING DEALING WITH THE NORTHEAST LAND USE PLAN Attorney Ambrogi advised that he wanted to make it clear that he cannot go out into the public, the paper, or the radio and comment on a matter for a pending case. That is a violation of the Code addressing professional responsibility that lawyers have, you cannot do that. The Board is his client not individually, but as a body. He knows there has been a lot of flack because he won't provide information to the press or the individuals, but he can't until the Board directs him to, which they have now done. He is now protected. He is not breeching any confidentiality. He referred to the Attorney General's Opinions. There are about forty volumes, very little in there. He referred to the Virginia Reports that report the Supreme Court Cases 260 volumes, very little in there. He further referred to the Code of Virginia, 20 some volumes. He referred to 15.2 which does address the matter in part, not Robert's Rules. The controlling factor here, is not Robert's Rules it is the Code of Virginia. Did the Board comply with the laws of the Commonwealth of Virginia? In his opinion yes. He was asked to render an opinion on the applicable law and on Robert's Rules, even though he is not the parliamentarian, Robert's Rules was looked at by himself and one of his assistants and it was clear from the Code and the Attorney General's Opinions. To change a vote that has to be done at that meeting, that is clear. Supervisor Forrester, in good conscious, mistakenly voted against her own motion. Supervisor Smith voted contrary to how he wanted to vote. It was not a case where he went to change his vote after reflecting on it saying, I will catch flack on that. Supervisor Smith honestly felt he was voting in favor ofthe motion, when he didn't. The idea is to seek the truth to get the matter that Supervisor Smith wanted to have approved. You have to look at the law for that. Robert's Rules provides for motions to reconsider, motion to rescind; however, as stated by the Honorable Henry Whiting, Supreme Court Justice, in a case out of Prince William County. Case of Prince William vs. Rouel etc. consisting of five to six page opinion, ample authority exists with the principle that may authorize to confirm to parliamentary usage will not Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 152 invalidate an action when the requisite number of members has agreed to a particular measure. He was aware that there were opinions out there that stated the Code of Virginia or local ordinance or law that you have preempts Robert's Rules. Probably one reason is, Robert's Rules does not strictly apply to bodies less than twelve members, ifhe remembers correctly. What he rendered was simply an opinion. He further referred to a matter dealing with Luck Stone Company wherein it states in the absence of some local ordinance or rules adopted by the Board there is no provision against a defeated motion on a resolution again being considered by the Board at a subsequent meeting, which is what the Board did. He knew there were law suits being prepared and one has been filed and there are others, the Board does not want to do it that way. In his opinion the Board would not have prevailed in a law suit based on the first vote. MEMORANDUM RE: LEGISLATIVE AGENDA FOR2003 GENERAL ASSEMBLY SESSION - APPROVED Supervisor Smith advised that he felt the Board had jumped into this a little fast. He would like to make a motion for the Board to adopt an amended legislative agenda that is the same as last year, deleting all new items until the Board can have a worksession to discuss, in detail, any proposed additions. Supervisor Sager seconded the motion. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Nay Lynda J. Tyler - Nay Gina A. Forrester - Nay RESOLUTION (#002-02) AND MEMORANDUM OF UNDERST ANDING RE: NEW WORLD PASTA - APPROVED WHEREAS, New World Pasta Company currently operates in Frederick County, Virginia facility and has made known its intent to expand its operations by acquiring new equipment and adding 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 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 New World Pasta Company to implement an equipment expansion and creation of additional jobs in Frederick County, Virginia. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 153 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. ADOPTED, this 10th day of July 2002. THIS MEMORANDUM OF UNDERSTANDING, dated ,2002, 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 New World Pasta Company ("New World Pasta"), a Pennsylvania company, regarding an equipment expansion in their Frederick County facility. Inducement To Expand: To induce New World Pasta to implement this equipment expansion and, thereby invest $15,000,000.00 in machinery and tools in Frederick County, Virginia and create twenty-eight (28) new jobs by June 30, 2004, (the "Project"), the County agrees to make a cash grant to the IDA in the amount of One Hundred Thousand Dollars ($100,000.00) and the IDA, in turn, shall make a cash grant to New World Pasta in an identical amount for equipment expansion purposes within its Frederick County, Virginia facility (the "Facility") as an incentive to implement this expansion in Frederick County. The IDA hereby agrees to convey such funds to New World Pasta no later than September 1, 2002 or the date in which the new machine line becomes operational, whichever comes last. This grant shall be used by New World Pasta for the purpose of payment for, or reimbursement of, equipment purchases and related costs. Conditions. (a) New World Pasta shall diligently pursue such application and procure such approvals from various commercial lending interests to pursue adequate funds to equip the Facility with the new equipment; (b) All incentives described herein shall be provided as and when indicated. Cooperation. The County and the Commission agree to cooperate with New World Pasta, its equipment suppliers and its equipment contractor in connection with helping New World Pasta Minute Book Number 28 Board of Supervisors Meeting of 07/1 0/02 154 meet its equipment implementation deadline so that the Facility is equipped by no later than June 30, 2004. Time is ofthe essence ofthis Agreement. Nothing in this paragraph shall be interpreted to require the County to issue any permits unless and until all conditions for such permits have been met. Binding. This Memorandum of Understanding shall be binding upon and inure to the benefit of the parties and their respective successors upon the date ofthe acceptance of this Memorandum of Understanding. Default. In the event New World Pasta fails for any reason to 1) have fully operational $15,000,000.00 in new machine and tool investments by June 30, 2004; 2) create twenty-eight (28) net new jobs associated with this Project by June 30, 2004; 3) maintain the level of investment and jobs created through the Project for at least two years; and 4) remain located in Frederick County for a full four (4) year period, beginning June 30, 2004, then upon written demand ofthe IDA, New World Pasta shall refund to the IDA such portions of the $100,000.00 grant from the IDA as is proportionate to New World Pasta's shortfall in fulfilling the applicable requirement. Notwithstanding the foregoing, if New World Pasta has met 90 percent (90%) of the investment and employment goals set forth in this agreement by June 30, 2004, maintained the level of investment and jobs created through the Project for a period at least two years and remains fully operational in Frederick County for four (4) years until at least June 30, 2008, then and thereafter, New World Pasta is deemed to have substantially complied with this Memorandum of Understanding and is no longer obligated to repay any portion ofthe grants provided to it hereunder. Assignment. This Agreement shall not be assigned by any party. Expiration of Agreement. If New World Pasta has not executed this Memorandum of Understanding by September 1, 2002, or has not begun the implementation process for this project by October 1, 2002, this Memorandum of Understanding shall be null and void and no further force and effect. THE COUNTY OF FREDERICK, VIRGINIA By: John R. Riley, Jr., County Administrator This day John R. Riley, Jr., County Administrator ofthe County of Frederick, appeared before me, a notary public for the State of Virginia, at large, and did acknowledge his signature above fixed all Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 155 in my state aforesaid. My commission expires Given under my hand this day of ,2002. Notary Public INDUSTRIAL DEVELOPMENT AUTHORITY OF THE COUNTY OF FREDERICK, VIRGINIA BY: TITLE: DATE: FREDERICK COUNTY, VIRGINIA BY: TITLE: DATE: WINCHESTERlFREDERICK COUNTY ECONOMIC DEVELOPMENT COMMISSION BY: TITLE: DATE: NEW WORLD PAST A COMPANY BY: TITLE: DATE: Upon motion made by Supervisor Sager, seconded by Supervisor Smith, the above Resolution and Memorandum of Understanding were approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye FINANCE DEPARTMENT RECEIVES CERTIFICATE OF ACHIEVEMENT FOR EXCELLENCE IN FINANCIAL REPORTING FOR ANNUAL FINANCIAL REPORT FOR FISCAL YEAR ENDING JUNE 2001 FROM THE GOVERNMENT FINANCE OFFICERS ASSOCIATION - APPROVED UNDER CONSENT AGENDA Minute Book Number 28 Board of Supervisors Meeting of07/l0/02 156 RESOLUTION (#001-02) APPROPRIATING $420.000 TOWARD THE RETIREMENT OF DEBT ON THE GRIM FARM (FUNDS TO BE REIMBURSED BY THE NATIONAL PARK SERVICE (NPS)) - APPROVED Administrator Riley presented this request to the Board. Upon motion made by Supervisor Sager, seconded by Supervisor Douglas, the following resolution was approved: WHEREAS, Frederick County was successful in receiving a National Park Service American Battlefield Protection Program Grant to assist with the acquisition of the Grim property in the amount of $420,000; and WHEREAS, no local funds are needed; NOW, THEREFORE, BE IT RESOLVED, that the Frederick County Board of Supervisors does hereby approve a general fund supplemental appropriation in the amount of $420,000 to be dispersed to the Kernstown Battlefield Association following the receipt of funds from the National Park Service. Passed this 10th day of July 2002. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye COMMITTEE REPORTS PARKS AND RECREATION COMMISSION - APPROVED UNDER CONSENT AGENDA The Parks and Recreation Commission met on June 25, 2002. Members present were: Charles Sandy, Robert Hartman, Joyce Goff, Clarence Haymaker, Cheryl Swartz and Lynda Tyler. Submitted for Board Information Only: 1. Cosponsored Groups Policy Revision - Mr. Hartman moved that the cosponsored policy changes be adopted, seconded by Mr. Haymaker, carried unanimously (5-0). LANDFILL OVERSITE COMMITTEE - APPROVED UNDER CONSENT AGENDA The landfill oversight committee met Tuesday, July 2, 2002, at 8:00 a.m. All committee members were present except John R. Riley, Jr. The following issues were discussed: 1. Stream Gaul!:inl!: Station on Opeauon Creek Near Route 7 East Frederick County has been approached by the U.S. Geological Service (U.S.G.S.) to fund the restoration, maintenance and operation ofthe stream gauging station on the Opequon Creek near the Route 7 bridge. The cost would include an initial investment of approximately $8,000 to upgrade the station and approximately $10,000 per year for operation and maintenance. In response to this request, we contacted Mr. Jesse Moffett, Director of the Winchester-Frederick County Service Authority, about sharing the costs. He indicated that they would be interested in sharing the costs. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 157 A motion was made by Gary Lofton and seconded by David Ash to fund one-half of the request from the U.S.G.S. to upgrade the gauging station and pay for operation and maintenance services. The motion was unanimously approved. Funding will be derived from the contractual service line item in the landfill budget. No additional funding will be required. 2. Reevaluate Fees for Citizen Loads that Exceed 1.000 Pounds The staff presented preliminary information for the month of May indicating the amount of heavy loads delivered to the landfill by private citizens. The intent was to initiate discussion regarding our current policy related to limiting loads to 3/4 ton trucks without requiring dump stickers. This action was intended for discussion only. A more detailed presentation will be made at the next meeting. (See Attachment 1) 3. Preliminary Results of Salary Survey In response to a motion made at the last scheduled meeting, a salary survey was performed for the entire landfill staff. After briefly reviewing the preliminary results of this survey, Mr. Jim Wilson suggested that a work session be convened to review and discuss the results in more detail. Mr. Lofton suggested that the staff provide job descriptions for the current landfill employees and obtain similar information from the jurisdictions included in the survey. (See Attachment 2) It was decided to schedule a meeting during the latter part of July 2002, prior to the regularly scheduled meeting ofthe Frederick County Personnel Committee in August 2002. 4. Closed Session A closed session was convened in accordance with the Code of Virginia g2.2-37ll Subsection A, (7), to discuss a pending legal issue. FINANCE COMMITTEE The Finance Committee met in the First Floor Conference Room at 107 North Kent Street, on June 19,2002, at 8:00 AM. The committee approved agenda items 2,3,4,5,6,7,9,11,12,13,14, and 15, under consent agenda. Ritchie Wilkins was absent. Upon motion made by Supervisor smith, seconded by Supervisor Reyes, the consent agenda was approved, as noted above, by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye 1. The Personnel Director requests a General Fund supplemental appropriation in the amount of $4.000.00. This amount represents advertising costs for the remainder of FY2002 and is requested to be placed in line item 1203-3007-000-000 Advertising. Additional local funds are necessary. See attached memo, p.1. The committee recommends approval. - Approved Upon motion made by Supervisor Smith, seconded by Supervisor Douglas, the above request was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 158 Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye 2. The Sheriff requests a General Fund suP?lemental appropriation in the amount of $1.742.16. This amount represents forfeiture for their department's share and is requested to be placed in line item 3102-5413-000-007 Forfeited Property Surplus for the purchase of surveillance equipment. No additional local funds are needed. See attached memos, p.2-6. The committee recommends approval. - Approved Under Consent 3. The Sheriff requests a General Fund supplemental appropriation in the amount of $8.302.46. This amount represents insurance reimbursements and is requested to be placed in line item 3102-3004-000-002 Repair and Maintenance Vehicle. No additional local funds are needed. See attached memos, p.7-1O. The committee recommends approval. - Approved Under Consent 4. The Sheriff requests a General Fund supplemental appropriation in the amount of $5.469.80. This amount represents donations from a fund-raiser for the DARE Program and is requested to be placed in line item 3102-5413-00-001 Drug Program. No additional local funds are needed. See attached memos, p. 11-13. The committee recommends approval. - Approved Under Consent 5. The Department of Fire and Rescue requests a General Fund supplemental appropriation in the amount of$2,425.00. This request represents fees charged for a career firefighter's class and is requested to be placed in line item 3505-3010-000-000 Other Contractual Services. No additional local funds are needed. See attached memo, p.14. The committee recommends approval. - Approved Under Consent 6. The Department of Public Safety Communications requests a General Fund supplemental appropriation in the amount of$5.0 13.76. This amount represents excess funds in the Wireless 911 Grant Fees and is requested to be placed in line item 3506-3002-000-000 Professional Services- Other. No additional local funds are needed. See attached memo, p.l5. The committee recommends approval. - Approved Under Consent 7. The Public Works Director requests a General Fund supplemental appropriation in the amount of$1.250.00. This amount represents donations and is requested to be placed in line item 4205-3010-000-000 Other Contractual Services. No additional local funds are needed. See attached memo, p.16. The committee recommends approval. - Approved Under Consent 8. The Public Works Director requests a General Fund supplemental appropriation in the amount of $17.215.00. This amount represents a revenue surplus and is requested to be carried forward in FY03 and placed in line item 3401-8005-000-000 Motor Vehicles and equipment for the purchase ofa mid-size two-wheel drive pickup and a two-way radio. See attached memo, p.l7-19. 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 W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye 9. The Public Works Director requests a General Fund supplemental appropriation in the amount of $4.364.00. This amount represents restitution and is requested to be placed in line item Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 159 4305-3001-000-000 Professional Health Services. No additional local funds are needed. See attached memos, p.20-21. The committee recommends approval. - Approved Under Consent 10. The Public Works Director requests a General Fund supplemental appropriation in the amount of$28.200.00. This amount is required to meet increased demands of permit processing and inspections and is requested to be placed in line item 3401-1003-000-000 Part-time and 3401-1005- 000-000 Extra Help/Overtime. Additional local funds are necessary. See attached memos, p.22-23. The committee recommends approval. - Approved Upon motion made by Supervisor Smith, seconded by Supervisor Reyes, the above request was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye 11. The Regional Jail requests a Regional Jail supplemental appropriation in the amount of $33.700.00. This amount represents a FY02 budgeted expenditure forreplacement of control panels and is requested to be carried forward in FY03 in line item 11-3301-3002-000-000 Professional Services. No additional local funds are needed. See attached memo, p.24. The committee recommends approval. - Approved Under Consent 12. The Regional Jail requests a Regional Jail budget transfer in the amount of$50.000.00. This transfer is needed to support expenses for food and food supplies. No additional local funds are needed. See attached memo, p.25. The committee recommends approval. - Approved Under Consent 13. The Landfill Manager requests a Landfill supplemental appropriation in the amount of $45.000.00. This amount represents an increased tire flow to the tire grinding program and is requested to be placed in line item 12-4204-3010-000-000 Tire Grinding. This amount is offset by additional revenue in the tire recycling program. No additional local funds are needed. See attached memo, p.26. The committee recommends approval. - Approved Under Consent 14. The Director of Court Services requests a Court Services Fund supplemental appropriation in the amount of$1.407. 73. This amount represents unexpended grant funds from the Department of Criminal Justice Services to be returned to the state, and is requested to be placed in line item 13-2112-5415-000-000 Other. No additional local funds are needed. See attached memos, p.27-28. The committee recommends approval. - Approved Under Consent 15. The Department of Social Services requests Budget transfers and a net General Fund supplemental appropriation in the amount of$19.917.00. This amount represents additional state funds in the amount of $25,201.00 and a reduction in local funds in the amount of $5,284.00. No additional local funds are needed. See attached memo, p.29. The committee recommends approval. - Approved Under Consent 16. The Department of Social Services requests a FY03 General Fund supplemental appropriation in the amount of$46.265.00.this amount is related to the move to the 3rd floor County Office Building the local cost is $30.000.00 and state/federal is $16.265.00. and a General Fund supplemental appropriation in the amount of$51.333.00 in federal/state grants. See attached memo, p.30. The committee recommends approval. - Approved Upon motion made by Supervisor Smith, seconded by Supervisor Sager, the above request was approved by the following recorded vote: Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 160 Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye 17. The Cedar Creek Battlefield Foundation requests the consideration for a portion of the county funds to be appropriated for Battlefield acquisition. See attached memo, p.31-33. The committee recommended that the request be forwarded to the Battlefield Foundation for review and that the request be returned to the Finance Committee for reconsideration in 30 days. - Received as Information. 18. The Northern Shenandoah Valley Regional Commission is requesting a FY03 General Fund supplemental appropriation in the amount of $10.000.00. These funds are requested for a minimum instream flow study. Additional local funds are necessary. See attached memo, p.34. The committee recommends approval. - Approved Upon motion made by Supervisor Smith, seconded by Supervisor Sager, the above request was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye CHAIRMAN SHICKLE APPOINTED ENGINEER-DIRECTOR WELLINGTON JONES TO THE MINIMUM INSTREAM FLOW STUDY COMMITTEE Chairman Shickle advised that he appointed Engineer-Director Wellington Jones to the Minimum Instream Flow Study Committee noted in number 18 of the Finance Committee Report. PUBLIC HEARING PUBLIC HEARING - OUTDOOR FESTIVAL PERMIT - REOUEST OF THE MOUNTAINVIEW CHURCH OF CHRIST. PURSUANT TO THE FREDERICK COUNTY CODE. CHAPTER 86. FESTIVALS; SECTION 86-3 C. PERMIT REQUIRED; APPLICATION; ISSUANCE OR DENIAL; FOR AN OUTDOOR FESTIVAL PERMIT. FESTIVAL TO BE HELD AUGUST 30. 2002 THRU SEPTEMBER 2. 2002. FROM 8:00 A.M. TO 9:00 P.M. EACH DAY, AT MOUNTAINVIEW CHURCH OF CHRIST. 153 NARROW LANE. WINCHESTER. VIRGINIA - APPROVED Administrator Riley presented this request. There was no public comment. Upon motion made by Supervisor Sager, seconded by Supervisor Douglas, the above Outdoor Festival Permit was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 1.61 Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye PLANNING COMMISSION BUSINESS PUBLIC HEARING PUBLIC HEARING - CONDITIONAL USE PERMIT #09-02 OF FROG EYE FIBER EMPORIUM. SUBMITTED BY MARY S. GROUNDWATER. FOR A COTTAGE OCCUPATION -INSTRUCTIONAL CLASSES AND RETAIL SALES. THE PROPERTY IS LOCATED AT 347 SCHOOLMARM LANE AND IS IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBERS 62-A-22 AND 62-A-21AIN THE BACK CREEK MAGISTERIAL DISTRICT - APPROVED Planner II Rebecca Ragsdale presented this request to the Board advising that the Planning Commission recommended approval. There was no public comment. Upon motion made by Supervisor Douglas, seconded by Supervisor Smith, CUP #09-02 was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye PUBLIC HEARING- REZONING #03-02 OF HAZEL LAMBERT, SUBMITTED BY GREENWAY ENGINEERING, TO REZONE.73 ACRES FROM RP (RESIDENTIAL PERFORMANCE) TO B2 (BUSINESS GENERAL) DISTRICT. THIS PROPERTY IS LOCATED AT THE SOUTHWESTERN CORNER OFTHE INTERSECTION OF SENSENY ROAD (ROUTE 657) AND GREENWOOD ROAD (RT. 656), AND IS IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBERS 65A-7-8 AND 65A- 7-9 IN THE SHAWNEE MAGISTERIAL DISTRICT - APPROVED Planner II Jeremy Camp presented this request to the Board advising the Planning Commission recommended approval. Supervisor Tyler had some questions concerning buffering. Mark Smith representing the request appeared before the Board to respond to their questions. He advised the owner was not 100% sure of exactly what would be going at this location, but thought it would be similar to what is located across the street as far as the strip mall is concerned. Supervisor Sager advised that the lighting and noise concerned him. Supervisor Reyes asked how much acreage was at the site? Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 162 Mark Smith advised 1.3 acres. Supervisor Forrester asked about proffers for fire and rescue. Planner Camp explained the model calculations. Blaine Dunn, area resident, appeared before the Board and advised that he was neither for nor against this request, he did have some concerns with public issues such as zoning, trash etc. Pat Gochenour, area resident and member ofthe Planning Commission, is not in favor ofthis request as she feels the Board should know exactly what is going at the site before approving it. George Sempeles, Stonewall District, felt that anything that would be put there would be an improvement over what is currently there. Bill Rosenberry, Shawnee District and member ofthe Planning Commission, advised at the Planning Commission meeting, a neighbor, to the back of the property, in adjacent subdivision. expressed concern about a two story building being built on the site, but he too feels this plan would be an improvement. Supervisor Sager asked if the Board could revisit this again. Administrator Riley advised they could ask; however, he would caution against it. Supervisor Forrester asked about the requirements for a two story building. Upon motion made by Supervisor Smith, seconded by Supervisor Douglas, rezoning #03-02 of Hazel Lambert was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Nay Lynda J. Tyler - Nay Gina A. Forrester - Nay PUBLIC HEARING - REZONING #04-02 OF KIMERL Y G. HENRY, SUBMITTED BY PAINTER-LEWIS. P.L.Coo TO REZONE .557 ACRES FROM B2 (BUSINESS GENERAL) TO B3 (INDUSTRIAL TRANSITION) DISTRICT. AND .765 ACRES FROM B3 (INDUSTRIAL TRANSITION) TO B2 (BUSINESS GENERAL) DISTRICT. THE PARCELS ARE LOCATED ON FORT COLLIER ROAD BETWEEN BAKER LANE AND HUNTINGTON MEADOWS SUBDIVISION. AND ARE IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBERS 54-8-41. 42, 23. 24. 25 & 26 IN THE STONEWALL MAGISTERIAL DISTRICT - APPROVED Director Lawrence presented this request to the Board advising that the Planning Commission had unanimously recommended approval. There was no public comment. Minute Book Number 28 Board of Supervisors Meeting of 07110/02 163 Upon motion made by Supervisor Tyler, seconded by Supervisor Smith, rezoning #04-02 was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye PUBLIC HEARING - PROPOSED AMENDMENTS TO THE FREDERICK COUNTY CODE. CHAPTER 165, ZONING ORDINANCE: ARTICLE V, RURAL AREAS DISTRICT: SECTION 165-54B. FAMILY DIVISION LOTS: AND ARTICLE XXII, DEFINITIONS. THE PROPOSED AMENDMENTS ARE INTENDED TO IDENTIFY OUALIFYING FAMILY MEMBERS FOR FAMILY DIVISION LOTS AND TO PROVIDE A SUPPORTIVE DEFINITION - APPROVED Planner II Jeremy Camp presented this request to the Board advising that one type of land division allowed in the RA Zoning District is a family division lot. The provision for a family division lot gives a person the ability to sell or gift a lot as small as two (2) acres to family members. Currently, Frederick County's Zoning Ordinance does not provide a definition of a family member; which leaves it up to interpretation regarding who qualifies as a family member for a family division lot. The DRRS and staff are proposing to add a definition of immediate family to the Frederick County Zoning Ordinance. The proposed definition would be consistent with the State Code's primary definition of immediate family. The option to include aunts, uncles, nieces, and nephews would not be part of the proposed definition. A public hearing was held in June and concern was raised at that time about the potential misuse of family division lots; however, the Planning Commission felt that the proposed amendments were needed, and they unanimously recommended approval. Al Hayes, Gainesboro District, appeared before the Board advising that he feels this is a step in the right direction, but doesn't feel it goes far enough, and that more tightening is needed. Sam Lehman, Back Creek District, advised this has been abused in the past and he feels it should be five acre lots. Diane McMillan, Opequon District, stated that she feels the two acres are costing the taxpayers of Virginia and it needs to be five acres. Supervisor Douglas doesn't agree with niece and nephew being cut out, as there are times when there are no children and nieces and nephews are the only close relatives. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 164 Supervisor Tyler asked ifthere is abuse ofthis ordinance; if so, is this a better step and is this something the Board needs to be concerned about? Administrator Riley advised that yes, he does feel there has been in the past. Supervisor Reyes asked if there was some type of caveat that would help to let the public know they could not just do whatever they wanted to. Chairman Shickle advised that the Board has to act on whatever was advertised for this meeting. Upon motion made Supervisor Sager, seconded by Supervisor Smith, the proposed amendments to the Frederick County Code Chapter 165, Zoning Ordinance (definition only) was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye Chairman Shickle advised that he felt some further tightening of this was needed and referred it back to committee for additional study. PUBLIC HEARING - 2002 CAPITAL FACILITIES FISCAL IMPACT MODEL UPDATE - APPROVED Director Lawrence advised the Board that in the late 1980's the Code of Virginia was amended to enable localities with growth rates greater than 10%, over the past decade, to accept cash proffers. When this happened, Frederick County then qualified with their conditional zoning to allow cash proffers to be proffered during the zoning process. At that time the County hired an economic consultant company to develop what is now called the Capital Facilities Fiscal Impact Model, which has been used for the better part of ten years. In 1998-1999 that model was revised and updated. At that time the County decided they would calculate the impacts that are resulting from rezoning at 50%. At this time he is presenting the updated model which reflects 2001 data, which are budgetary figures, demographic figures, and figures from the various county departments and agencies that could qualify for this. The impact model strictly looks at impacts on capital facilities that would result from a rezoning, essentially your brick and mortar. This information has been provided to the Board earlier, and as a result, the Board directed staff to discuss this updated Minute Book Number 28 Board of Supervisors Meeting of 07/1 0/02 165 model with some agencies, The Top of Virginia Builders Association, Fire and Rescue Department, Parks and Recreation Commission and the School Board. Three of these groups did supply information and this is included in the Board's packet. Parks and Recreation, along with the School Board, felt the model should be calculated at 100%. The Top of Virginia had concerns with the model in general. He further advised the Board if they felt the new model was appropriate, staff would encourage the Board to adopt the updated model. Staff does need direction on what percentage of the model should they be expecting when they calculate the models. Are they to continue 50% for Fire and Rescue and Schools and 100% for all the other agencies impacted through the model? When is the new model to be implemented if updated? Supervisor Sager advised that he would probably support the proffer model numbers, but will not support an increase in percentage. Supervisor Tyler asked what was done between 1991 and 1998? Director Lawrence advised that the plan was used, but never modified. The following residents appeared before the Board concerning this request: Doug Dolan, Red Bud District and Executive Officer of the Blue Ridge Association of Relators. Their association was not asked for input; however, they are against proffers, regardless of what the amount is. He advised that this fee causes a disproportionate increase of new construction. Proffers can drive the cost of new construction by two to four fold times the amount ofthe fee. He feels urban sprawl will be increased by this as developers seek other areas they can build in where they will not have to pay impact fees. All of this cost will not be paid by the developer, but will be passed on to the one that will be buying the house. Mike McMillan, Opequon District, he was part of a joint committee that looked at the fiscal impact model last year and understands it in depth, and he senses a great deal of confusion tonight about that model. What is being talked about are proffers and not impact fees, there is a big difference? He asked that it is made clear between what a proffer is and what impact fees are. Sam Lehman, Back Creek District, in the past the model did not begin to account for the actual cost. It is important that the model turn out at cost which is closely related to the impact of that development. This is a trade for the rezoning of land. We are talking about two different kinds ofland here. The staff is talking about rural development which has a proportionate of older people and a much smaller service cost. These impact fees should bare some relation to the cost that we Minute Book Number 28 Board of Supervisors Meeting of 07/1 0/02 16 have. Superintendent Dr. William Dean advised that the School Board is on record in support of the change of increasing from 50% to 100% on the model. He advised that someone has to help the school system for the impact of new residential construction. He further advised that the debt service is rising and will continue to rise if the CIP for the schools is funded on schedule. He feels this is an unfair situation facing the schools. Their success as a school division is at risk without adequate funding. Diane McMillan, Opequon District, advised that as a taxpayer she is a little offended that the Top of Virginia Builders were included in any of the negotiations for this; however, the taxpayers were not. The developer should be shown 100% of the profit. Who makes the profit on the rezoning, who pays the difference for the rezoning? All these costs are coming back to the taxpayers. She further stated that we just gave the developers 7500 acres of the Northeast SWSA. Ifthe Top of Virginia Builders were included in this capital facilities impact, she feels the taxpayers of Frederick County should be included in a referendum to challenge it. Kevin Kennedy, Gainesboro District, advised that he would echo what Sam Lehman and Dr. Dean had said earlier. It is just so obvious, he is sure the Board has to see that. Bill Rosenberry, Shawnee District, the proffer model, the capital fiscal model, is attempting to calculate the capital cost or facilities cost resulting from development. These costs aren't going to go up whether there are proffers or not. Those are the costs of development. The question is, who is paying the costs. In the case of the model what happens? The developer passes it onto the homeowners and they pay the costs for their development. He is on a fixed income and he does not feel it is fair for him to pay the additional costs as he is not buying the home. He feels the model is an attempt to move it in the right direction. Blaine Dunn, Redbud District, reminded the Board that they are spending tax dollars. Richie Wilkins, Gainesboro District and President of the Top of Virginia Builders Association. The capital facilities' impact model is in conflict with a number of issues that are important to their association. The first one being the smart growth issue. The proffer can only be charged on future rezonings that occur within the urban development area, it cannot be charged outside the urban development area for this land cannot be rezoned to residential outside this area. He spoke to the increase in charges during the time he has been in the construction business such as Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 167 water and sewer hook up is now $5500 from $500. The proffer has come from something that did not exist to the current $10,000, that is an additional $15,000 cost that can only be charged in the urban development area that gives you the right to build there and nothing else. He feels this forces development outside the urban development area. He feels affordable housing is an issue with this also. He advised that the most affordable lots in the UDA are around $50,000 with homes on these lots costing around $200,000. He stated there are very few jobs in Frederick County that can afford the $200,000 home. The tax is only on new homes, not existing homes, and the proffer only applies to future rezonings. Pam Kennedy, Gainesboro District, when all this development is allowed, there is cost. Unfortunately that cost is shared among all the residents of Frederick County. It doesn't matter if they live in the UDA or outside the UDA, all of us have to pay for schools, all of us have to pay for Fire & Rescue and Parks and Recreation. All proffers should be increased to 100%, and even ifthe Board does this, we are still playing catch up. She would say it needs to be increased to 150% and even then, we would still be playing catch up. Mark Smith, Shawnee District, brought up another issue with the proffer system. Senseny Road, Channing Drive Development, the proffer model was applied. The proffer was paid accordingly. What the Board didn't see or was not recognized that over $2 million was committed to building the connector road from Greenwood to Senseny. You will find as other projects come forward in the UDA, they are properties that have more difficulty because everyone takes the easier properties first. He asked the Board, as other applications come forward, that they give them consideration for things they have to overcome and help them in the proffer situation. Mike McMillan, Opequon District, advised there were two comments made in the last few presentations that he wanted to counter, as they are not correct. The notion that proffers somehow cause development to occur outside the UDA. That is because as a County, we have not taken responsibility for putting the proper zoning and applications in place outside the UDA, two wrongs do not make a right. Reducing the proffers is not going to help the County with our situation outside the UDA. What will help us is if we engage in the action oriented committee effort started last Fall and stopped. Second point Mr. Smith talked about, when we look at proffers we don't look at the effects it has outside the development itself. Supervisor Smith asked Administrator Riley if it is true that Fairfax County has impact fees. Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 168 They get enabling legislation and the money has to go for transportation. Administrator Riley advised that they have the ability to assess impact fees, and that is for transportation issues only. Supervisor Smith - Are they the only County that has that. Administrator Riley advised they were the only County that has the County Executive form of government so, yes, and this did take enabling legislation. Supervisor Reyes asked Director Lawrence for an implementation date that would not affect those things already in the pipe line. Director Lawrence advised if the update is approved, he would suggest August 1. Supervisor Forrester asked why it could not be stated that any application that came in after this meeting would be the new model. Director Lawrence advised that he knew there were a number of applications that have been worked on for two months based on the current model. Upon motion made by Supervisor Forrester, seconded by Supervisor Reyes, to approve the updated model using the 100% for Schools and Parks and Recreation, and anything new, where nothing has been started in the process, the effective date is July 11, 2002. Supervisor Reyes seconded the motion. The above motion was approved by the following recorded vote: Richard C. Shickle - Nay W. Harrington Smith, Jr. - Aye Robert M. Sager - Nay Margaret B. Douglas - Nay Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye Chairman Shickle advised that one problem that he has always had with the physical impact model was the offset of commercial against residential. This has always troubled him. There was never any support for anything different, and as the proffer escalates it becomes a little more difficult to undo some ofthose things. Supervisor Forrester advised that it has been brought to the Board before that this impact model was just addressing the impacts for the Capital Facilities, but a proposal has been made to have a total impact model looked at with that joint team. Chairman Shickle responded to this. There are only certain things you can use, and it is not Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 169 everything. Supervisor Forrester asked ifthe Board could have this as an additional decision making tool for the Board and have that work be resumed by the organization VISION. She is suggesting that we develop the total impact analysis model for Frederick County and that the joint committee suggested before, if those individuals are agreeable. Those individuals are Jim Vickers, Mike McMillan, a Board Liaison, Charles DeHaven, Bill Rosenberry, Kris Tierney, Eric Lawrence, Patrick Barker, Rick? The fact that Evan Wyatt's name was listed, but since he is no longer working for the County, perhaps another person from Planning. Chairman Shickle suggested perhaps Administrator Riley could put this on the next Board agenda. Supervisor Forrester - Couldn't we just make that decision this evening so we could start the process. Chairman Shickle - not unless you depart from the Agenda. Supervisor Forrester advised that she would like to depart from the Agenda then to make that motion. Chairman Shickle - Supervisor Forrester you would need to either set your rules aside or you would have needed to amend the agenda at the beginning of the meeting. Administrator Riley asked Supervisor Forrester if she could give him thirty days to bring it back to the Board? Supervisor Forrester - Replied yes. OTHER PLANNING ITEMS SUBDIVISION APPLICATION #12-02 OF KIM AND MARIETTA WALLS FOR TOWNHOUSES - APPROVED UNDER CONSENT AGENDA This request is for a subdivision of a 0.79 acre tract into six townhouse lots. DISCUSSION OF EXISTING STRUCTURE (DWELLING) SETBACKS - APPROVED FOR PUBLIC HEARING Planner II Jeremy Camp presented this information to the Board advising that it was for their discussion and decision whether to take it back to the Planning Commission and then to the Board for a public hearing. He advised that Section 165-55C of the Frederick County Zoning Ordinance allows a subdivided parcel in the Rural Areas Zoning District to have reduced side and rear setbacks whenever created around an existing structure. The normally required side and rear setbacks for an Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 170 orchard (200') or an agricultural use (100') does not apply for these types oflots. The problem with this requirement is that if a landowner wants a setback of 50' from a side or rear property line, all he would have to do is place a shed or any structure on the property, thus establishing an existing structure and circumventing the intent of the Zoning Ordinance. Proposed Amendment Existing 6t1uC.,tWe.5 dwellings. The side or rear setbacks for any lot created around an existing use. 01 stmduu, dwelling or any family division lot shall be fifty (50) feet from all lot lines. Upon motion made by Supervisor Smith, seconded by Supervisor Forrester, to send this back to the Planning Commission and then back to the Board for a public hearing. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye DISCUSSION OF MINIMUM SETBACKS FOR COMMERCIAL TELECOMMUNICATIONS FACILITIES - BACK TO PLANNING AND RETURN TO BOARD FOR PUBLIC HEARING Planner II Jeremy Camp presented this information to the Board advising if these amendments are approved this will establish a minimum setback distance for commercial telecommunication towers when a setback waiver is requested, as well as require engineer certification when the requested setback is less than the tower height. The changes will provide clear guidelines for the Planning Commission and the Board of Supervisors to follow when reviewing applications for a new commercial telecommunication tower. Upon motion made by Supervisor Forrester, seconded by Supervisor Sager, the above amendment will be sent back to Planning stafffor a public hearing ofthe Planning Commission and Board of Supervisors. The above motion was approved by the following recorded vote: Richard C. Shickle - Aye W. Harrington Smith, Jr. - Aye Robert M. Sager - Aye Margaret B. Douglas - Aye Sidney A. Reyes - Aye Lynda J. Tyler - Aye Gina A. Forrester - Aye Minute Book Number 28 Board of Supervisors Meeting of 07/10/02 1 7'1 ROAD RESOLUTION. RED FOX RUN. SECTION I - APPROVED UNDER CONSENT AGENDA BOARD OF SUPERVISORS COMMENTS Chairman Shickle advised that he has a conflict with the first Board meeting in September (11 th). He could do it on the 5th. Asked Board to look at the calendars and let Administrator Riley know of their schedule. UPON MOTION MADE BY SUPERVISOR FORRESTER, SECONDED BY SUPERVISOR REYES, THERE BEING NO FURTHER BUSINESS TO COME BEFORE THIS BOARD, THIS MEETING IS HEREBY ADJOURNED. (TIME: 10:28 P.M.) ~J2 ~JlJJ.} Richard C. Shickle Chairman, Board of Supervisors ~&tl- Clerk, Board of Supervisors Minutes Prepared By: t1nJ.nJ' J-: v=h., J.....<l..4) Carol T. Bayliss I Deputy Clerk, Board of Supervisors Minute Book Number 28 Board of Supervisors Meeting of 07/10/02