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November 18 2009 Regular Meeting205 A Regular Meeting of the Frederick County Board of Supervisors was held on Wednesday, November 18, 2009, at 5:00 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 Bill M. Ewing; Charles S. DeHaven, Jr.; Gary W. Dove; Gene E. Fisher; Philip A. Lemieux; and Gary A. Lofton. CALL TO ORDER Chairman Shickle called the meeting to order. BOARD RETIRED INTO CLOSED SESSION Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board convene in Closed Session pursuant to Va. Code Section 2.2 -3711 A (5) to discuss the expansion of an existing business or industry in Frederick County and pursuant to Va. Code Section 2.2- 3711 A (7) for consultation with legal counsel regarding specific legal matters requiring the provision of legal advice and regarding actual or probable litigation, both with regard to the Russell 150 CDA. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye BOARD RECONVENED INTO REGULAR SESSION Upon a motion by Supervisor Ewing, seconded by Supervisor DeHaven, the Board came out of closed session and reconvened in open session. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board certified that to the best of each board member's knowledge the Board discussed only those matters identified in the motion by which the closed session was convened and that such matters Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 "0• involved only the discussion of the expansion of an existing business or industry in Frederick County, pursuant to Virginia Code Section 2.2.-3711 A (5), and consultation with legal counsel regarding specific legal matters requiring the provision of legal advice and regarding actual or probable litigation, both with regard to the Russell 150 CDA, pursuant to Virginia Code Section 2.2.-3711 A (7). The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye INVOCATION Supervisor Fisher delivered the invocation. PLEDGE OF ALLEGIANCE Vice - Chairman Ewing led the Pledge of Allegiance. ADOPTION OF AGENDA — APPROVED AS AMENDED County Administrator John R. Riley, Jr. advised he had one addition to the agenda. He added an appointment to the ShawneeLand Sanitary District Advisory Committee to the Committee Appointments portion of the agenda. Upon a motion by Supervisor Lofton, seconded by Supervisor Dove, the Board approved the agenda as amended. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye CONSENT AGENDA - APPROVED Administrator Riley offered the following items for the Board's consideration under the consent agenda: - Subdivision Waiver Request #04 -09 of Bonnie Triplett — Tab L; and - Road Resolution — Hunting Ridge Estate — Tab O. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Fisher, the Board Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 207 approved the consent agenda by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye CITIZEN COMMENTS There were no citizen comments. BOARD OF SUPERVISORS COMMENTS Supervisor Lemieux reported on his attendance at Millbrook High School's Veterans' Day ceremony. He said the students did a wonderful job and he urged board members to attend next year. Chairman Shickle noted the Board is often invited to be a part of various Memorial Day and Veterans' Day ceremonies in the County and he has asked different members to participate on his behalf, because his schedule usually prohibits his attendance at these events. He encouraged the Board to also take part in these ceremonies if they so desired. MINUTES - APPROVED The minutes from the October 14, 2009 meeting were presented. Vice - Chairman Ewing advised he would abstain from this vote as he was not present for that meeting. Upon a motion by Supervisor Dove, seconded by Supervisor Fisher, the Board approved the minutes from the October 14, 2009 Regular Meeting. The above meeting was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Abstained Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye Upon a motion by Supervisor Dove, seconded by Vice - Chairman Ewing, the Board approved the minutes from the October 20, 2009 joint meeting with the Winchester City Council. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 208 Philip A. Lemieux Aye Gary A. Lofton Aye COUNTY OFFICIALS COMMITTEE APPOINTMENTS APPOINTMENT OF JAY C. MEYERS AS GAINESBORO DISTRICT REPRESENTATIVE TO THE INDUSTRIAL DEVELOPMENT AUTHORITY - snnunVVn Upon a motion by Supervisor Dove, seconded by Supervisor DeHaven, the Board appointed Jay C. Meyers to the Industrial Development Authority as the representative from the Gainesboro District. This is a four year appointment, said term to expire November 18, 2013. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye NOMINATION OF BRUCE CARPENTER AS GAINESBORO DISTRICT REPRESENTATIVE TO THE BOARD OF ZONING APPEALS - APPROVED Upon a motion by Supervisor Dove, seconded by Vice - Chairman Ewing, the Board nominated Bruce Carpenter as Gainesboro District representative to the Board of Zoning Appeals. This is a five year appointment, said term to expire December 31, 2014. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye APPOINTMENT OF RYAN A. CLOUSE AS A FREDERICK COUNTY REPRESENTATIVE TO THE CHAPTER 10 BOARD - APPROVED Upon a motion by Supervisor Lofton, seconded by Supervisor DeHaven, the Board appointed Ryan A. Clouse as a Frederick County representative to the Chapter 10 Board. This is a three year appointment, said term to expire December 31, 2012. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 209 Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye APPOINTMENT OF CHARLES S. DEHAVEN, JR. AS BOARD OF SUPERVISORS REPRESENTATIVE TO THE NORTHERN SHENANDOAH VALLEY REGIONAL COMMISSION - APPROVED Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board reappointed Charles S. DeHaven, Jr. as a Board of Supervisors' representative to the Northern Shenandoah Valley Regional Commission, said term to expire December 31, 2013. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Abstained Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye APPOINTMENT OF LESLIE R. TAYLOR TO THE SHAWNEELAND SANITARY DISTRICT ADVISORY COMMITTEE TO FILL THE UNEXPIRED TERM OF CHRIS BRUNN - APPROVED Upon a motion by Supervisor Lofton, seconded by Supervisor Dove, the Board appointed Leslie R. Taylor to the ShawneeLand Sanitary District Advisory Committee to fill the unexpired term of Chris Brunn, said term to expire October 8, 2010. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye REQUEST FROM THE SHERIFF FOR AN APPROPRIATION RE: GRANT AWARD FOR OPERATION SAVE LIVES - APPROVED Administrator Riley advised the Frederick County Sheriffs Office applied for and received a grant award in the amount of $30,325.00 for Operation Save Lives. This grant award will cover overtime expenses for highway checkpoints and additional traffic /speed checks. This grant amount also allows for the purchase of additional traffic equipment such as radar units. Administrator Riley concluded by saying the Sheriff was asking the Board to appropriate the grant funds, which have been received. Upon a motion by Supervisor DeHaven, seconded by Supervisor Lofton, the Board Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 210 approved the appropriation request for the grant award in the amount of $30, 325. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye RESOLUTION ( #037 -09) DESIGNATING THE COUNTY OF FREDERICK, VIRGINIA AS A RECOVERY ZONE FOR PURPOSES OF RECOVERY ZONE ECONOMIC DEVELOPMENT BONDS AND RECOVERY ZONE FACILITY BONDS AND REALLOCATING VOLUME CAP ALLOCATION FOR RECOVERY ZONE ECONOMIC DEVELOPMENT BONDS - APPROVED Administrator Riley presented the Board with an amended resolution designating Frederick County as a recovery zone for purposes of issuing Recovery Zone Economic Development and Recovery Zone Facility Bonds as part of the American Recovery and Reinvestment Act. The new language in the resolution was provided by legal counsel for the Frederick County Sanitation Authority after the Board's agenda packets had been distributed. Other language was removed from the resolution after staff's consultation with bond counsel and financial representatives. He went on to say the new language was required because the Sanitation Authority is considering the possibility of issuing the Recovery Zone Economic Development Bonds through an upcoming VML/VACo pool financing. This pool financing currently contemplates having the bonds issued on the pool level rather than the local level, such as through the Frederick County Industrial Development Authority. The Sanitation Authority will be asking the VML /VACo pool to use Frederick County's allocation and issue the bonds for the benefit of the Sanitation Authority. Administrator Riley noted that all language referencing a Financing Agreement between the County and the Sanitation Authority, wherein the County could be responsible for making payments on these bonds should the Sanitation Authority be unable to carry this debt has been removed. He went on to say the commitment to provide the moral obligation of the County would count against the County's debt capacity. He concluded by saying staff is seeking Board approval of this revised resolution. Upon a motion by Supervisor Dove, seconded by Vice - Chairman Ewing, the Board approved the resolution designating the County of Frederick, Virginia as a recovery zone for purposes of Recovery Zone Economic Development Bonds and Recovery Zone Facility Bonds and reallocating volume cap allocation for Recovery Zone Economic Development Bonds. Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 211 WHEREAS, the American Recovery and Reinvestment Act of 2009 (Pub. L. No. 111 -5), in part, added Sections 140OU -I through 140OU -3 to the Internal Revenue Code of 1986, as amended (the "Code "), that authorize state and local governments to issue two new categories of bonds (together, "Recovery Zone Bonds ") entitled (i) "recovery zone economic development bonds" and (ii) "recovery zone facility bonds ", the purpose of which are to lower costs of state and local government borrowing and thereby to promote job creation and economic recovery in areas particularly affected by employment declines; WHEREAS, the Code imposes a national bond volume limitation of $10 billion for recovery zone economic development bonds and $15 billion for recovery zone facility bonds, of which the County of Frederick, Virginia (the "County ") has been allocated $4,984,000 in recovery zone economic development bonds (the "RZED Bond Allocation ") and $7,476,000 in recovery zone facility bonds; WHEREAS, recovery zone economic development bonds may be used to finance certain "qualified economic development purposes" and recovery zone facility bonds may be used to finance certain "recovery zone property ", both generally for use within or attributable to areas designated as "recovery zones "; WHEREAS, the Code defines the term "recovery zone" as, among other things, "any area designated by the issuer as having significant poverty, unemployment, rate of home foreclosures or general distress "; WHEREAS, the entire geographic area of the County is experiencing general distress resulting from, in part, an overall unemployment rate of 7.4% as of August 2009 (an increase of 3.0% over the unemployment rate in August 2008); WHEREAS, the County has determined that as a result of such general distress, the entire geographic area of the County qualifies to be designated as a recovery zone for purposes of issuing recovery zone bonds; and WHEREAS, the Board of Supervisors desires to facilitate the issuance of recovery zone bonds by the County, the Frederick County Sanitation Authority, the Industrial Development Authority of the County of Frederick, Virginia or any other entity permitted to undertake the issuance of bonds for projects located in or attributable to the County; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF SUPERVISORS OF THE COUNTY OF FREDERICK, VIRGINIA, THAT: 1. Incorporation of Recitals Each of the recitals set forth above is incorporated and restated as if set forth herein. 2. Designation of Recovery Zone The entire geographic area of the County of Frederick, Virginia is hereby designated a "recovery zone" for purposes of issuing recovery zone bonds under the provisions of Code Sections 1400U -1 through 1400U- 3. 3. Reallocation of RZED Bond Allocation In accordance with U.S. Department of Treasury Notice 2009 -50 the County hereby allocates its RZED Bond Allocation to the Frederick County Sanitation Authority (the "Authority ") for the purpose of assisting in financing the expansion and improvement of the Authority's water and sewer facilities (the "Improvements ") to serve customers in the County and accordingly, the Improvements to be financed through the Authority using the RZED Bond Allocation are attributable to both the County and the Authority. 4. Issuance of Bonds The County requests the Authority to issue or cause for the benefit of the Authority the issuance of Recovery Zone Economic Development Bonds (the "Bonds ") in the maximum amount of $4,984,000 to be used to pay the costs of the improvements. The Bonds will be payable from revenues derived by the Authority from the operation of its water and sewer systems. Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 212 5. Execution of Documents The Chairman and Vice Chairman of the Board of Supervisors and the County Administrator, or any of them, are authorized to execute and deliver on behalf of the County such instruments, documents or certificates, and to do and perform such things and acts, as they shall deem necessary or appropriate to carry out the transactions authorized by this Resolution; and all of the foregoing, previously done or performed by such officers or agents of the County, are in all respects approved, ratified and confirmed. 6. Disclosure Documents The County Administrator and the County's Director of Finance, or either of them, and such officers and agents of the County as either of them may designate are hereby authorized and directed to assist the Authority to prepare, execute, if required, distribute, and deliver an appropriate preliminary official statement and official statement or such other offering or disclosure documents as may be necessary to expedite the sale of the Bonds. 7. Nature of Obligations Nothing in this Resolution or the Bonds shall constitute a debt or a pledge of the full faith and credit of the County and the Authority shall not be obligated to make any payments under the Bonds except from revenues of its water and sewer systems. 8. Effective Date. This resolution shall take effect immediately upon its passage. Adopted November 18, 2009. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye COMMITTEE REPORTS PUBLIC WORKS COMMITTEE REPORTS - APPROVED The Public Works and Green Advisory Committees met on Tuesday, October 27, 2009 at 8:00 a.m. All members were present except Bob Wells and Gene Fisher. The following items were discussed: ***Items Requiring Action*** 1. Energy Improvement Plan (Green Advisory Committee) Mr. Ludwig moved to recommend the Energy Improvement Plan to the Board of Supervisors. The motion was seconded by Mr. Wagner and unanimously approved by the committee. The Energy Improvement Plan provides reduction targets and action steps intended to reduce facility energy consumption through behavioral and technology changes. (Attachment 1) Upon a motion by Supervisor Fisher, seconded by Supervisor Dove, the Board adopted the Energy Improvement Plan. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 213 Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye ** *Items Not Requiring Action * ** 1. Closed Session A closed session was convened in accordance with the Code of Virginia §2.2 -3711 Subsection A, (28) to discuss an unsolicited PPEA proposal related to the design and construction of Frederick County Fire and Rescue Station #222. 2. Renovation of the Ancillary Building — Old Gainesboro Elementary School The Assistant County Administrator, Mr. Kris Tierney, presented a request from the Redland Preschool and Daycare to utilize the ancillary building associated with the Old Gainesboro Elementary School to house a portion of their preschool program. The attached memorandum highlights this request and provides estimated costs to renovate the subject building to accommodate the intended use. After discussing this request at length, the committee unanimously supported a motion to solicit additional proposals from groups or individuals that might also have an interest in using this structure. The results of this solicitation will be returned to the committee for their review. (Attachment 2) 3. Energy Efficiency and Conservation Block Grant Program (Green Advisory Committee) Staff is preparing several EECBG applications, solicitation date October 6, 2009 — application due November 6, 2009. Once projects are defined, the Board of Supervisors will need to sign a resolution in support of the EECBG projects prior to award (late December 2009 or early January 2010). Staff will report project application list at the next green advisory committee meeting. 4. Performance Contracting Update (Green Advisory Committee) Frederick County, Frederick County Public Schools, and the Northwestern Regional Adult Detention Center are interested in investigating performance contracting as a means of reducing energy use. The listed entities will solicit four (4) energy service companies to each provide a no cost, no obligation energy audit of facilities. 5. Miscellaneous Reports a) Tonnage Report (Attachment 3) b) Animal Shelter Dog Report (Attachment 4) c) Animal Shelter Cat Report (Attachment 5) FINANCE COMMITTEE REPORT The Finance Committee met in the First Floor Conference Room at 107 North Kent Street on Friday, October 23, 2009 at 9:00 a.m. Members Richie Wilkins and Ron Hottle were absent. 1. The EDC Director requests a General Fund supplemental appropriation in the amount of $80,000 for the final payment of the ProJet Aircraft MOU. See attached memo, p. 1. The committee forwards the request to the Board with no recommendation. - Postponed Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 214 postponed this request until the January 13, 2010 meeting. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye 2. The Fire & Rescue Chief requests a General Fund supplemental appropriation in the amount of $6,456.78 This amount represents an insurance reimbursement for a damaged vehicle. No local funds required. See attached memo, p. 2 -3. The committee recommends approval. - Approved Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye 3. The Court Services Director requests a Court Services Fund supplemental gp�ropriation in the amount of $2,909.61 This amount represents monies collected from vending machines. No local funds required. See attached memo, p. 4. The committee recommends approval. - Approved Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Fisher, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye 4. The Parks & Recreation Director requests a General Fund supplemental appropriation in the amount of $210,000 for the completion of Phase II of this Sherando Park pedestrian/bike trail. This amount represents proffer funds received. See attached memo, p. 5. The committee recommends approval. - Approved Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lemieux, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 215 Gary A. Lofton Aye 5. The NRADC Superintendent requests a NRADC Fund supplemental appropriation in the amount of $106,470 These funds are needed to return interest earned on the jail expansion bond in excess of the IRS allowable amount. See attached memo, p. 6. The committee recommends approval. - Approved Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye 6. A request for a General Fund supplemental appropriation in the amount of $440,300 for unused transportation funding from FY 2009 to FY 2010 has been made. The committee recommends the establishment of a reserved fund balance subject to appropriation upon need. - Approved Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye 7. The Victim Witness Director requests a General Fund supplemental appropriation in the amount of $5,000 which represents additional funds received from the State. No local funds required. See attached information, p. 7 -8. The committee recommends approval. - Approved Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye 8. The Finance Committee Chairman will address the FY 2011 budget development. See attached memo, p. 9. ** *Information Only * ** 1. A thank you note was received from First Night Winchester for the FY 2010 contribution. See attached, p. 10. 2. The Finance Director provides September 30, 2009 financial statements. See Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 216 attached, p. 11 -14. 3. The Finance Director provides the Fund 10 Transfer report. See attached, memo, p. 15. 4. The Finance Director provides the Unreserved Fund Balance report. See attached, p. [U] PLANNING COMMISSION BUSINESS PUBLIC HEARINGS PUBLIC HEARING - CONDITIONAL USE PERMIT #05 -09 FOR ROGER JENKINS FOR A PUBLIC GARAGE WITHOUT BODY REPAIR. THIS PROPERTY IS LOCATED AT 190 BOGGESS LANE, AND IS_ IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBER 41 -10 -9 IN THE GAINESBORO MAGISTERIAL DISTRICT. - APPROVED Zoning Administrator Mark Cheran appeared before the Board regarding this item. He advised this was an application for a public garage without body repair. The property is located at 190 Boggess Lane in the Gainesboro Magisterial District. The property is zoned RA (Rural Areas) District. He went on to say the proposed use will utilize a pump and haul permit for up to three (3) years from the date of approval of this conditional use permit. Zoning Administrator Cheran went on to say the Planning Commission unanimously recommended approval of this conditional use permit with the following conditions: 1. All review agency comments and requirements shall be complied with at all times. 2. The applicant will be limited to repairing only five (5) vehicles on site at anytime. 3. Vehicles awaiting repair shall be screened by an opaque fence. 4. Operation is limited to the applicant; no employees. 5. All repair activities shall occur entirely within the enclosed structure. 6. The applicant shall apply for and install an approved septic system within three (3) years of the approval date of this Conditional Use Permit. 7. This Conditional Use Permit shall be void and will be revoked if condition #6 is not implemented. 8. Any proposed business sign shall conform to the Cottage Occupation sign requirements and shall not exceed four (4) square feet in size and five (5) feet in height. 9. The public garage shall only be permitted to operate between the hours of 8:00 a.m. to 6:00 p.m., Monday through Saturday. No Sunday hours of operation are permitted. 10. Any expansion or change of use shall require a new Conditional Use Permit. 11. A 15 -mph speed limit sign shall be posted on Boggess Lane approximately 500 feet from the entrance. A "Watch for Children" sign shall be posted at the entrance of Boggess Lane. 12. A "Private Residence — No Trespassing" sign shall be posted at Mr. Jenkins' entrance. Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 217 Chairman Shickle suggested adding the lane name to condition # 12 and then asked about the pump and haul permit requirement. Administrator Riley stated it is a condition of the conditional use permit, so approval of the permit means the pump and haul permit is approved by the Board. Chairman Shickle asked if the language pertaining to the pump and haul permit should read the Board approves the use of a pump and haul permit for a period no longer than three years. Administrator Riley responded that language could be added to condition #6. Chairman Shickle convened the public hearing. Russell Cupp, Trustee for Old Bethel United Methodist Church, stated the applicant was given access by the church to a right -of -way for the purposes of moving hay, equipment, etc. He went on to say he did not know why the applicant needed to use this lane, if there was access to the property via Boggess Lane. Dan Spaugh, Pastor of Old Bethel United Methodist Church, stated that use of the lane beside the church would create an undue amount of noise. He went on to say he did not see why the applicants have to have access to their property through the church's property. Kim Rutledge, Gainesboro District, spoke in support of this application. She believes the increased traffic on Boggess Lane would exit before it reaches the residences. She went on to say the amount of traffic allowed is reasonable. Nancy Jenkins, applicant, advised that Boggess Lane would be used to access the business. Stacy Amari, Gainesboro District, stated her main concern is the children that live on Boggess Lane and the lane is used as a staging area for kids waiting for the school bus. She noted there was a severe blind spot at the entrance onto Boggess Lane. She went on to say she and her neighbors have maintained the road for 14 years. She said a road maintenance agreement was established for residential use. She concluded by saying there were other alternatives for access and she would like the County to further study alternatives. There being no further public comments, Chairman Shickle closed the public hearing. Zoning Administrator Cheran stated Boggess Lane was a private road, but everyone adjoining it has the right to use the road. Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 • Nancy Jenkins advised the church allows them to use the cemetery right -of -way during hay season, but the actual entrance for their property is on Boggess Lane. Zoning Administrator Cheran advised the entrance to the property was located off of Boggess Lane. He went on to say the church right -of -way is a private issue that is unrelated to this application. Supervisor Lofton asked about the road maintenance agreement. Mrs. Jenkins responded they did come up with a road maintenance agreement and it has been signed and recorded. Upon a motion by Supervisor Dove, seconded by Supervisor Fisher, the Board approved Conditional Use Permit #05 -09 with the recommended changes to conditions #6 and #12. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye PUBLIC HEARING - REZONING #12 -07 OF OPE CROSSING SUBMITTED BY PATTON HARRIS RUST & ASSOCIATES, TO REZONE 70.15 ACRES FROM RA (RURAL AREAS) DISTRICT TO RP (RESIDENTIAL PERFORMANCE) DISTRICT WITH PROFFERS FOR UP TO 325 SINGLE FAMILY ATTACHED AND DETACHED RESIDENTIAL UNITS. THE PROPERTY IS LOCATED SOUTH OF THE EXISTING TERMINUS OF EDDY'S LANE (ROUTE 820), APPROXIMATELY 2,400 FEET SOUTH OF ROUTE 7 AND 1,650 FEET WEST OF OPEQUON CREEK, AND IS IDENTIFIED BY PROPERTY IDENTIFICATION NUMBER 55 -A -210 IN THE RED BUD MAGISTERIAL DISTRICT. - APPROVED Deputy Director of Planning and Development Michael Ruddy appeared before the Board regarding this item. He advised this was a proposal to rezone 70 acres from RA (Rural Areas) District to RP (Residential Performance) District with proffers. The proposed use for this site will be up to 325 single family attached and single family detached dwelling units. The property is located in the Red Bud Magisterial District and in the Urban Development Area and Sewer and Water Service Area. The applicant has proffered a generalized development plan. He went on to say no building permits will be issued until the Haggerty road improvements are in place. Deputy Director Ruddy noted a revised set of proffers had been submitted that afternoon, which addressed the timing issue and increased the monetary proffer per unit to $5,000. He concluded by saying John Bishop, Deputy Director — Transportation, would discuss the Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 219 transportation issues regarding this application. Deputy Director — Transportation John Bishop stated this application was recommended for approval by the Planning Commission. He advised that the applicant addressed some of the transportation issues. They added bicycle and pedestrian service, the cash proffers were restored, and the intersection width of the east/west connector road. Deputy Director Bishop noted this proposal does not implement the County's Eastern Road Plan. He specifically cited the lack of right -of -way or easement connecting to the Fieldstone Development. He noted another concern was the road system in Opequon Crossing had been moved up so it will not connect to the existing Fieldstone road system. Supervisor Fisher stated he believed the "stub" connection with Fieldstone has nothing to do with this rezoning. He went on to say the Board might want to review the Eastern Road Plan, but he felt this connection has nothing to do with this application. Patrick Sowers, Patton Harris Rust & Associates, appeared before the Board on behalf of the application. He stated that at the Planning Commission meeting, the applicant's concept plan showed an off -set in the road system that better aligned with the Fieldstone development; however, they have held discussions with Fieldstone representatives who told them they have already sold units to buyers under the premise of a cul -de -sac on that street. He went on to say Fieldstone representatives could not allow the connection to occur. He noted the applicant did make provision for the connection and if the Board needs the connection to align then the applicant would work with staff to make that happen at the master development plan stage. Mr. Sowers went on to say the cash proffers were increased from $3,000 per unit to $5,000 per unit, which will provide a monetary contribution of up to $1,285,000 that could be applied to transportation improvements within Frederick County. He noted this was above and beyond what was called for by the development impact model. He went on to say Haggerty Boulevard will be the access for this project and at build out in 2016 the intersection of Haggerty Boulevard and Route 7 would be level of service B. Mr. Sowers advised the applicant has proffered a 3,000 square foot club house /community center in the development along with a 3,500 square foot swimming pool. He concluded by saying 34 acres of the adjoining Haggerty property is to be dedicated to Frederick County Parks & Recreation if the County agrees to accept and maintain this property. Supervisor Lemieux asked if the applicant would be open to establishing a "sunrise" Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 220 clause or time table for starting construction, so the county could investigate the possible changes to the Eastern Road Plan. Mr. Sowers responded he had not discussed this scenario with his client. He noted the plan, as shown, accommodates the current Eastern Road Plan. He went on to say the reserve area would accommodate any change to the Eastern Road Plan. Chairman Shickle asked if all of the lots were the same size. Mr. Sowers responded this development contained single family small lot housing types and were the same size lots as in the Haggerty development. He went on to explain that the hike/bike trail would go under the proposed Route 37 to connect developments. The intersection of Haggerty Boulevard and Route 7 would be a level of service B at 55 miles per hour with a protected left turn. Jerry Copp, VDOT Resident Engineer, appeared before the Board to answer questions surrounding the transportation improvements related to this proposal. He noted the traffic impact analysis for this proposal was redone and VDOT did not have an opportunity to review the work and respond back to the applicant. He went on to say the inter - parcel connector and new secondary roads requirements require an inter - parcel connection. He stated the Eastern Road Plan has been a challenge for the County, VDOT, and the Development Community to try to implement. With regard to the relocation of Valley Mill Road, Engineer Copp noted the right- of-way was available, but it had not been proffered to Frederick County. He stated someone is going to have to purchase that land. He concluded by saying the Fieldstone connection is probably something that needs to be addressed. Matt Smith, VDOT, stated the revised proffers have address the reservation issue regarding the relocation of Valley Mill Road. Supervisor Lemieux asked if the County could have the applicant change the roads, if needed, so the County does not have to take them over. Deputy Director Bishop responded the Board could ask the applicant to meet VDOT standards. Supervisor Lemieux asked what Fieldstone could do today to change its plan. Deputy Director Ruddy responded they could do a number of things because the property is zoned RP (Residential Performance) District and did not go through a rezoning with proffers. Chairman Shickle convened the public hearing. Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 221 Bill Meyers, Stonewall District, stated if this development is approved then Route 37 would need a $10 -20 million dollar bridge. He stated that in lieu of Route 37 the Board should look at connecting eastern Frederick County with connector roads like Haggerty Boulevard. There being no further public comments, Chairman Shickle closed the public hearing. Supervisor Lemieux asked if the applicant had conference with his client regarding the sunrise clause. Mr. Sowers responded that his client agreed with a sunrise clause of two years. Supervisor Lemieux asked if the applicant would be agreeable to a three year sunrise clause. Mr. Sowers responded his client would be agreeable to three years. Supervisor Lemieux stated the Traffic Impact Analysis did not address how families will get to their shopping needs. He was concerned about monetary contribution for transportation, but that has since been addressed. He went on to say the Eastern Road Plan needs to be revisited. He stated there needs to be a connection into the Fieldstone property and he did not think it was too late to have the plans changed. Upon a motion by Supervisor Lemieux, seconded by Supervisor Dove, the Board approved Rezoning # 12 -07 with the first building permit not to be issued for three years. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye PUBLIC HEARING - REZONING #08 -09 OF HAGGERTY COMMERCIAL SUBMITTED BY PATTON HARRIS RUST & ASSOCIATES, TO REZONE 4.0 ACRES FROM RP (RESIDENTIAL PERFORMANCE) DISTRICT TO B1 (NEIGHBORHOOD BUSINESS) DISTRICT, WITH PROFFERS, FOR COMMERCIAL USES. THE PROPERTY IS LOCATED ALONG THE EAST SIDE OF PROPOSED HAGGERTY BOULEVARD, APPROXIMATELY 2,000 FEET SOUTH OF THE INTERSECTION OF PROPOSED HAGGERTY BOULEVARD AND ROUTE 7, AND IS IDENTIFIED BY PROPERTY IDENTIFICATION NUMBER 55 -A -212 IN THE RED BUD MAGISTERIAL DISTRICT. - APPROVED Deputy Director Michael Ruddy appeared before the Board regarding this item. He advised this was a proposal to rezone 4.0 acres from RP (Residential Performance) to BI (Neighborhood Business) District, with proffers, for commercial uses. He noted this is part of the Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 222 Haggerty property open space. The generalized development plan shows one site entrance off of the spine road. The floor area ratio has been limited to .25. He went on to say no building permits will be issued until the Haggerty Spine Road is constructed. He noted the applicant has proffered a rendering of the proposed buildings to be located on this site. Ten parking spaces will be made available if the adjacent property is used a park. He concluded by saying the Planning Commission recommended approval. Supervisor Dove stated he could see no reason why this could not be shops on the ground floor with residential units above. Patrick Sowers, Patton Harris Rust & Associates, appeared before the Board to answer any questions they might have. Chairman Shickle convened the public hearing. There were no citizen comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor Lemieux, seconded by Supervisor Dove, the Board approved rezoning #08 -09. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye PU BLIC HEARING - REZONING #09 -09 OF GRAYSTONE CORPORATION OF VIRGINIA, SUBMITTED BY GREENWAY ENGINEERING, TO REZONE 271.39 ACRES FROM RA (RURAL AREAS) DISTRICT TO M1 (LIGHT INDUSTRIAL) DISTRICT, WITH PROFFERS, FOR OFFICE AND MANUFACTURING USES. THE PROPERTIES ARE LOCATED ON THE NORTH SIDE OF REDBUD ROAD (ROUTE 661), THE EAST SIDE OF CSX RAILROAD, THE WEST SIDE OF MILBURN ROAD (ROUTE 662), AND SOUTH OF MCCANNS ROAD (ROUTE 838), AND ARE IDENTIFIED BY PROPERTY IDENTIFICATION NUMBERS 43-A-158,44-A-25, AND 44 -A -26 IN THE STONEWALL MAGISTERIAL DISTRICT. (CANCELED) PUBLIC HEARING - O RDINANCE AMENDMENT — CHAPTER 165 ZONING ARTICLE VI BUSINESS AND INDUSTRIAL ZONING DISTRICTS, PART 605 OM (OFFICE - MANUFACTURING PARK) DISTRICT — REVISIONS TO THE FREDERICK COUNTY ZONING ORDINANCE TO INCLUDE ADDITIONAL USES AND NEW DESIGN STANDARDS. - APPROVED Senior Planner Candice Perkins appeared before the Board regarding this item. She advised the County received a request to revise portions of the Office- Manufacturing (OM) Park Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 223 Zoning District to add various manufacturing uses, office uses and service uses. The request also included revisions to the height allowance for office buildings from 60 feet to 90 feet and 70 feet for automobile parking structures, to allow a height exemption for automated storage facilities and to increase the FAR froml.0 to 2.0. She concluded by saying the Planning Commission recommended approval. Chairman Shickle convened the public hearing. There were no citizen comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor Lofton, seconded by Supervisor DeHaven, the Board approved an ordinance amending Frederick County Code Chapter 165, Zoning, Article II — Supplementary Use Regulations, Parking, Buffers and Regulations for Specific Uses; Part 201 — Supplementary Use Regulations, 165- 201.03 Height Limitations; Exceptions; Chapter 165, Zoning, Article VI — Business and Industrial Zoning Districts, Part 601 — Dimensional and Intensity Requirements, 165- 601.02 — Dimensional and Intensity Requirements; Chapter 165, Zoning, Article VI — Business and Industrial Zoning Districts, Part 605 — OM Office- Manufacturing Park District, 165- 602.02 — Permitted Uses, 165- 605.03 — Secondary or Accessory Uses, 165- 605.04 — Design Requirements. WHEREAS, an ordinance to amend Chapter 165, Zoning, Article II — Supplementary Use Regulations, Parking, Buffers and Regulations for Specific Uses, Part 201 — Supplementary Use Regulations, 165- 201.03 Height Limitations, Exceptions; Chapter 165, Zoning, Article VI — Business and Industrial Zoning Districts, Part 601 — Dimensional and Intensity Requirements, 165- 601.02 Dimensional and Intensity Requirements; Chapter 165, Zoning, Article VI — Business and Industrial Zoning Districts, Part 605 — OM Office - Manufacturing Park District, 165- 605.02 — Permitted Uses, 165 - 605.03 — Secondary or Accessory Uses, and 165- 605.04 — Design Requirements, was considered by the Planning Commission and the Development Review and Regulations Committee (DRRC) during their regularly scheduled meetings to consider revisions to the OM Office - Manufacturing Park District to revise the OM Office - Manufacturing Park District; and WHEREAS, the Development Review and Regulations Committee (DRRC) recommended approval of this amendment on September 24, 2009; and WHEREAS, the Planning Commission held a public hearing on this ordinance adoption on November 4, 2009; and WHEREAS, the Board of Supervisors held a public hearing on this ordinance adoption on November 18, 2009; and WHEREAS, the Frederick County Board of Supervisors finds the adoption of this ordinance to be in the best interest of the public health, safety, welfare, and in good zoning practice; NOW,THEREFORE, BE IT ORDAINED, by the Frederick County Board of Supervisors that Chapter 165, Zoning, Article II — Supplementary Use Regulations, Parking, Buffers and Regulations for Specific Uses, Part 201 — Supplementary Use Regulations, 165- 201.03 Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 224 Height Limitations, Exceptions; Chapter 165, Zoning, Article VI — Business and Industrial Zoning Districts, Part 601 — Dimensional and Intensity Requirements, 165 - 601.02 Dimensional and Intensity Requirements; Chapter 165, Zoning, Article VI, Business and Industrial Zoning Districts, Part 605 — OM Office- Manufacturing Park District, 165- 605.02 — Permitted Uses, 165 - 605.03 — Secondary or Accessory Uses, and 165- 605.04 — Design Requirements, is revised. This amendment is amended as described on the attachment. ARTICLE VI BUSINESS AND INDUSTRIAL ZONING DISTRICTS Part 605 — OM Office - Manufacturing Park District §165- 605.01. Intent. Office- Manufacturing (OM) Park District. The intent of this district is to implement the mixed use industrial /office land use classification of the Comprehensive Policy Plan. The OM Park District is designed to provide areas for research and development centers, office parks, and minimal impact industrial and assembly uses. Uses are allowed which do not create noise, smoke, dust or other hazards. This district shall be located in a campus like atmosphere near major transportation facilities. § 165 - 605.02. Permitted Uses. Standard Industrial Classification (SIC) Furniture and Related Product Manufacturing 25 Paperboard Containers and Boxes 265 Publishing Industries 27 Pharmaceutical and Medicine Manufacturing 283 Rubber and Miscellaneous Plastics Manufacturing 30 Excluding uses in italics: Tires and Inner Tubes 3011 Fabricated Metal Products 34 Industrial and Commercial Machinery 35 And Computer Equipment Manufacturing Electronics and other Electrical Equipment 36 And Components Manufacturing Excluding uses in italics: Storage batteries 3691 Primary batteries 3692 Aircraft and Parts Manufacturing 372 Medical Equipment and Supplies Manufacturing 38 Radio and Television Broadcasting Stations 483 Cable and Other Pay Television Services 484 Central Reserve Depository Institutions 601 Savinas Institutions 603 Mortgage Bankers and Brokers 616 Nondepository Credit Institutions 61 Security and Commodity Brokers, 62 Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 1225 Dealers, Exchanaes, and Services Insurance Carriers and Services 63 -64 Real Estate 65 Holding and Other Investment Offices 67 Advertisement Agencies 731 Consumer Credit Reporting Agencies 732 Direct Mailina Services 733 Excluding the following: Photocopving and Duplicating Services 7334 Employment Services 736 Computer Programming, Data Processing, and 737 Other Computer Related Services News Syndicates 7383 Doctors Offices and Clinics 801 -804 Medical and Dental Laboratories 807 Medical 6aberaterie3 8A7� Legal Services 81 Engineering, Accounting, Research 87 Management, and Related Services Public Administration 91 -97 General Business Offices, including corporate, - - - - - -- government or other offices not providing services to the general public on a regular basis as the primary use Business signs Signs allowed in §165- 201.06B Freestanding building entrance signs Multi- tenant complex signs Electronic Message signs § 165 - 605.03. Secondary or Accessory Uses. The following uses shall be permitted by right in the OM Park District, but only in conjunction with, and secondary to, a permitted principal use in accordance with section §165- 201.05. Secondary Uses Standard Industrial Classification (SIC) Insurance Carriers and Services 63-64 Eating and Drinking Places 58 Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 226 Except the following: Restaurants with drive - through uses Food Services Contractors 5821 Caterers 5821 Mobile Food Services Drinking Places 5813 Commercial Banks 602 Credit Unions 606 Foreign Banks 608 Depository Banking Related Uses 609 Except the following: Check cashing agencies 6099 Money order issuance 6099 Travele check issuance 6099 Photocopyina and Duplicatina Services 7334 Office Machinery and Equipment 7359 Rental and Leasing Physical Fitness Facilities for employees 7991 Child Day Care Services 8351 Office Machine Repair and Maintenance 7629 Dry Cleaning and Laundry Services 721 Except the following: Linen supply 7213 Dry Cleaning Plants 7216 Industrial launderers 7218 § 165 - 605.04. Design Requirements. A. Minimum Size. No OM Park District rezoning shall be approved for less than ten (10) contiguous acres. (1) There shall be no minimum lot size. (2) There shall be no minimum lot width or depth. B. Development Standards. The following standards shall apply in the OM Park District. (1) This district shall be planned and developed with a harmonious coordination of uses, architectural styles, landscaping, parking, signs and outdoor lighting. (2) This district shall be developed with a campus like atmosphere and near major transportation facilities. (3) Any building shall be faced on all sides facing road right -of -ways with durable, attractive, high quality materials, comparable to clay brick, stone, wood, architectural concrete Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 227 masonry unit (e.g., regal stone, split face, precision, ground face) or precast concrete panels. (4) Loading docks or loading entrances shall be blocked from view from public streets, by utilizing board -on -board fencing, masonry walls, or evergreen tree plantings. (5) Outdoor storage shall be prohibited. (6) All OM Park districts shall have access to a state road. C. The maximum structural height for office buildings shall not exceed 90 feet; the height for all other uses shall be regulated by § 165- 601.02 and § 165- 201.03. D. The maximum structural height for automobile parking structures shall not exceed 70 feet. § 165 - 601.02 Dimensional and intensity requirements The following table describes the dimensional and intensity requirements for the business and industrial districts: Article II SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS, AND REGULATIONS FOR SPECIFIC USES Part 201— Supplementary Use Regulations § 165 - 201.03 Height limitations; exceptions. B. Exceptions to height requirements. (4) Automated storage facilities in the OM, M1 and M2 Zoning Districts shall be exempt from the maximum height requirement. This exemption shall be granted only when the facility is provided with full sprinkling for fire protection according to the specifications of applicable codes. Such exemptions shall be approved by the Frederick County Fire Marshal. In no case shall the height of these facilities exceed 100 feet in height. This ordinance shall be in effect on the day of adoption. Passed this 18` day of November, 2009 by the following recorded vote: Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 District Requirement B1 B2 B3 OM M1 M2 Front yard setback on primary or arterial highways (feet) 50 50 50 50 75 75 Front yard setback on collector or minor streets (feet) 35 35 35 35 75 75 Side yard setbacks (feet) - - 15 15 25 25 Rear yard setbacks (feet) - - 15 15 25 25 Floor area to lot area ratio (FAR) 0.3 1.0 1.0 40 2.0 1.0 1.0 Minimum landscaped area (percentage of lot area) 35 15 25 15 25 15 Maximum height (feet) 35 35 35 60 60 60 Article II SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS, AND REGULATIONS FOR SPECIFIC USES Part 201— Supplementary Use Regulations § 165 - 201.03 Height limitations; exceptions. B. Exceptions to height requirements. (4) Automated storage facilities in the OM, M1 and M2 Zoning Districts shall be exempt from the maximum height requirement. This exemption shall be granted only when the facility is provided with full sprinkling for fire protection according to the specifications of applicable codes. Such exemptions shall be approved by the Frederick County Fire Marshal. In no case shall the height of these facilities exceed 100 feet in height. This ordinance shall be in effect on the day of adoption. Passed this 18` day of November, 2009 by the following recorded vote: Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 228 Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye PUBLIC HEARING - ORDINANCE AMENDMENT — CHAPTER 165 ZONING ARTICLE VI BUSINESS AND INDUSTRIAL ZONING DISTRICTS, PART 606 M1 LIGHT INDUSTRIAL DISTRICT; AND ARTICLE II REGULATIONS FOR SPECIFIC USES; ARITICLE I DEFINITIONS — REVISIONS TO THE FREDERICK COUNTY ZONING ORDINANCE TO INCLUDE COMMERCIAL RECREATION (INDOOR) AS A PERMITTED USE, INCLUDE ADDITIONAL REGULATIONS FOR THE USE AND A REVISED DEFINITION. - DENIED Senior Planner Candice Perkins appeared before the Board regarding this item. She advised the County received a request to include Commercial Recreation Operated Indoor to the permitted uses in the M1 (Light Industrial) Zoning District. This use is currently permitted in the B2 (Business General) and the B3 (Industrial Transition) Districts. The requested recreation is for a dog training program; however, this ordinance amendment would be applicable to all types of commercial recreation. She went on to say design standards have been included for this use when established in the MI District, which address patron parking and safety, along with regulations when this use is developed in a master - planned industrial park. She noted a revised definition was also included in this proposal. She concluded by saying the Planning Commission recommended approval. Chairman Shickle asked why this proposal was not limited to only indoor dog training. Senior Planner Perkins responded if the Board chooses the uses can be limited to that one particular use. Chairman Shickle convened the public hearing. There were no citizen comments. Chairman Shickle closed the public hearing. Supervisor DeHaven moved to approve the ordinance amending the Frederick County Code Chapter 165, Zoning, Article IV — Business and Industrial Zoning Districts, Part 606 — M1 Light Industrial District, 165- 606.02 — Allowable Uses; Chapter 165, Zoning, Article II — Supplementary Use Regulations, Parking, Buffers and Regulations for Specific Uses, Part 204 — Additional Regulations for Specific Uses, 165- 204.24 Commercial Recreation, Indoor; Chapter 165, Zoning, Article I — General Provisions, Amendment and Conditional Use Permits, Part 101 Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 229 — General Provisions, 165- 101.02 — Definitions & Word Usage. The motion was seconded by Supervisor Lofton. Supervisor Fisher stated this mix did not belong in the M1 district and he did not believe this was a good use for industrial buildings and could not support it. Supervisor Lofton stated this use is market driven and he did not believe people would lease out their buildings for this use. Chairman Shickle stated he could not support this amendment; however, he could support allowing only indoor dog training due to the economic times. The above motion was denied by the following recorded vote: Richard C. Shickle Nay Bill M. Ewing Nay Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Nay Philip A. Lemieux Nay Gary A. Lofton Aye Supervisor Lofton recommended the ordinance be approved limiting the use to indoor dog training. County Attorney Roderick Williams stated there were a number of other changes that needed to be made to this ordinance such as revising the definition of indoor commercial recreation. Chairman Shickle stated the ordinance would need to be brought back to the Board and he would leave it up to the interested parties to bring back a more narrowly focused ordinance. OTHER PLANNING ITEMS SUBDIVISION WAIVER REQUEST #04 -09 OF BONNIE TRIPLETT — APPROVED UNDER CONSENT AGENDA This was a request to subdivide 6.157 acres into two parcels of 2.0 acres and 4.157 acres for a family division. The property is located at 1065 Airport Road in the Shawnee Magisterial District. This item was approved under the consent agenda. REQUEST TO EXTEND WATER SERVICE OUTSIDE OF THE SEWER AND WATER SERVICE AREA (SWSA), RONALD HOWSER PROPERTY IN STEPHENSON — (RESOLUTION #038 -09) - APPROVED Planning Director Eric Lawrence appeared before the Board regarding this item. He advised that staff received a request to enable an existing residence to gain access to a public Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 230 water line located within their front yard. The residence is located outside of the Sewer and Water Service Area (SWSA) and is by policy not permitted to access this public water. Director Lawrence noted this request to tap into the existing water line of the property can be sponsored by a board member and this particular application has board member sponsorship. Chairman Shickle stated this request troubles him because there is no record of the other properties getting permission to connect to this service outside of the Sewer and Water Service Area. Supervisor DeHaven stated the fact that these lines are here at all has to do with water concerns in the area. Chairman Shickle went on to say if a record exists then this one could be added, but if there is no record then they all should be added. Supervisor Fisher advised the Sanitation Authority made an offer to the current property owner, but she declined. Supervisor DeHaven stated if the Board is protecting policies it has been implementing then he understands that. Upon a motion by Supervisor DeHaven, seconded by Supervisor Fisher, the Board approved the resolution granting the extension of water service outside of the SWSA to serve the existing residence at 344 Gun Club Road and that staff expand this resolution to include other properties and bring it back when they are ready to address other properties expanded it *e WHEREAS, Mr. Ronald Howser, property owner, wishes to connect his existing two bedroom residence at 344 Gun Club Road, identified by Property Identification Number 44 -A- 197, to the public water system; and WHEREAS, the Frederick County Sanitation Authority (FCSA) has maintained a water line on the subject property and provided water service to 13 residences adjacent to the subject property, since prior to 1992; and WHEREAS, the request for extension of water service would only serve the existing two bedroom residence located at 344 Gun Club Road; and WHEREAS, this extension of water service outside of the SWSA request was sponsored and presented to the Board of Supervisors by the Stonewall Magisterial District Supervisor on this day; and NOW, THEREFORE, BE IT ORDAINED that the Board of Supervisors authorizes the extension of water service outside of the SWSA to serve the existing residence at 344 Gun Club Road. Passed this 18 day of November, 2009 by the following recorded vote: Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 231 Richard C. Shickle Aye Bill M. Ewing Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Philip A. Lemieux Aye Gary A. Lofton Aye DISCUSSION — ROCK HARBOR AMENDMENT TO THE ROUND HILL LAND USE PLAN — (RESOLUTION #039 -09) - NOT SENT FORWARD FOR PUBLIC HEARING Deputy Planning Director Michael Ruddy appeared before the Board regarding this item. He advised this was a request to include the 260 acre Rock Harbor Golf Course in the Sewer and Water Service Area. Proposed uses in this area would include: conference center; extended stay resort; commercial uses; and accessory residential uses. He stated this amendment was being presented to the Board as a discussion item. He went on to say staff was seeking Board input regarding: - Specificity with the balance of land uses; - Modification of the SWSA boundary; - Inclusion of the Robinson property; and - Action on the resolution of support to forward this item to public hearing. Supervisor DeHaven stated he was concerned about the size of the acreage because we have added a lot of acreage with intense uses. He went on to say we need to be able to evaluate the size of the facilities needed to handle this type of development. Supervisor Lofton hoped this would be more of a concept that could be used in other parts of Frederick County. Deputy Director Ruddy responded this proposal was intended to modify the existing Round Hill Land Use Plan. The concept could be made broader, but it would still apply to the Round Hill Land Use Plan. Chairman Shickle expressed concerns with the proposal and especially the expansion of the Sewer and Water Service Area. He wanted to know why the Board would expand the SWSA now if there were other things that needed to happen before this development could be accommodated. He wanted to know how the Board and the developer each get the assurances and securities they need regarding the future of this proposal. He did not want to create a scenario where the Board might be laying the ground work for something the County would not want to see developed on this site and he wanted the developer to be assured that he could do Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 232 what he intended on this site in the future. Deputy Director Ruddy suggested creating zoning text which requires a connection to public water and sewer. Chairman Shickle stated he was not ready to send it to public hearing right now and if there was a sewer and water service area expansion involved, he could not get there this evening. Deputy Director Ruddy cited the third paragraph on page three of the text which states "It is essential to ensure that the infrastructure and the necessary community facilities are provided in a timely and coordinated manner in order to enable the successful implementation of the land use plan. Rezoning to the new district should not be allowed prior to the availability of public water and sewer, or alternately, future rezoning should provide for water and sewer with a clear expectation that the infrastructure, or agreements to develop the infrastructure, is in place to ensure the appropriate infrastructure is provided commensurate with the development of projects. " He noted this language is in the Comprehensive Plan today. In addition, he cited Alternative 2 under SWSA Boundary on page 4, which states "The SWSA boundary shall not be modified at the time of the approval of this land use plan. In the future, the SWSA boundary may be modified consistent with the land use designations of the Study, and ultimately up to the potential locations of the SWSA identified by the study, only with the approval of the Board of Supervisors and only when it has been demonstrated that the necessary sewer and water infrastructure is available. " Supervisor Dove stated the language should be crafted for this project only. Supervisor DeHaven stated he would like to see staff refine this plan addressing the Board's concerns and bring it back for review. He went on to say there are areas in the County that have been land use planned, but there is no SWSA movement because the capacity is not there. Supervisor Fisher stated he had similar issues with capacity, infrastructure, etc. He went on to say he would like more detail from the Frederick County Sanitation Authority. Supervisor Lofton moved to direct the Planning Commission to hold a public hearing regarding the Comprehensive Policy Plan amendment of Rock Harbor to the Round Hill Land Use Plan. The motion was seconded by Supervisor Dove. Supervisor Fisher stated he would like to get additional information about projected expansion plans and timing of these improvements. Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 233 The above motion was denied by the following recorded vote: Richard C. Shickle Nay Bill M. Ewing Nay Charles S. DeHaven, Jr. Nay Gary W. Dove Aye Gene E. Fisher Nay Philip A. Lemieux Aye Gary A. Lofton Aye ROAD RESOLUTION ( #040 -09) — HUNTING RIDGE ESTATES WHEREAS, the streets described on the attached Form AM -4.3, fully incorporated herein by reference, are shown on plats recorded in the Clerk's Office of the Circuit Court of Frederick County; and WHEREAS, the Resident Engineer of the Virginia Department of Transportation has advised this Board that the streets meet the requirements established by the Subdivision Street Requirements of the Virginia Department of Transportation; and WHEREAS, the County and the Virginia Department of Transportation have entered into an agreement on June 9, 1993, for comprehensive stormwater detention which applies to this request for addition; and NOW, THEREFORE, BE IT RESOLVED, this Board requests the Virginia Department of Transportation to add the streets described in the attached Form AM -4.3 to the secondary system of state highways, pursuant to 33.1 -229, Code of Virginia, and the Department's Subdivision Street Requirements and BE IT FURTHER RESOLVED, this Board guarantees a clear and unrestricted right -of- way, as described, and any necessary easements for cuts, fills and drainage; and BE IT FURTHER RESOLVED, that a certified copy of this resolution be forwarded to the Resident Engineer for the Virginia Department of Transportation. This item was approved under the consent agenda. Board: BOARD LIAISON REPORTS There were no Board liaison reports. CITIZEN COMMENTS Chieko McDowell, Stonewall District, presented and read the following statement to the "I would like to offer my personal views regarding the county's annual assessment of $60 1year for all current Star Fort Subdivision property owners, and to ask, several questions. I would like to ask the supervisors what criteria they used to decide to tax Star Fort residents from 2006 to 2009 and to whom the tax would apply? Is this $60 1year tax only for current homeowners or is it for any one who owned Star Fort property during 2006 to 2009, even though they no longer live at Star Fort subdivision? I myself know that more than one property owner has moved out during the 2006 -2009 period. Some moved within Frederick County or to a different part of Virginia. Some moved out of state or out of the country. If the county government did not or will not collect $60 1tax from former owners who lived at Star Fort after 2005, isn't that double standard? What is the residents' role in spending the revenues from this tax? Are we able to participate in Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09 234 discussion of how, when and how much of it will be on upkeep of the Star Fort property? In addition, the County and Shenandoah Valley Battlefields Foundation have prohibited Star Fort residents access to the property even though we are taxed for its upkeep. I do not think the current arrangement mandated by the county is fair. Therefore, 1 respectfully request that you review this issue and take what action you can to address Star Fort resident's concerns. Chairman Shickle advised the Board would respond to her questions in writing since she gave the Board the courtesy of putting her questions and concerns in writing. Sortis Pappas, Gainesboro District, addressed the Board regarding the PATH power line. He stated that tonight was the night for the County to do something and the Board could form a solid front against PATH. He reminded the Board of the public hearing tomorrow night in Lovettsville, VA and that SCC staff has asked for a dismissal of the case. BOARD OF SUPERVISORS COMMENTS Supervisor Dove stated he was glad to have citizens still fighting PATH and he hoped this would inspire Frederick County citizens who have not been active. ADJOURN UPON A MOTION BY SUPERVISOR DOVE, SECONDED BY SUPERVISOR FISHER, THERE BEING NO FURTHER BUSINESS TO COME BEFORE THIS BOARD, THIS MEETING IS HEREBY ADJOURNED. (9:00 P.M.) Richard C. Shickle Chairman, Board of Supervisors ?Z ; , � J . Riley, Jr. Clerk, Board of Supervisors Minutes Prepared B ` ` P Y� � . 4 . Jay El Tib�s Deputy Clerk, Board of Supervisors Minute Book Number 35 Board of Supervisors Regular Meeting of 11/18/09