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September 8 2010 Regular Meeting MinutesA Regular Meeting of the Frederick County Board of Supervisors was held on Wednesday, September 8, 2010, at 7:15 P.M., in the Board of Supervisors' Meeting Room, County Administration Building, 107 North Kent Street, Winchester, Virginia. PRESENT Chairman Richard C. Shickle; Vice - Chairman Bill M. Ewing; Christopher E. Collins; Charles S. DeHaven, Jr.; Gary W. Dove; Gene E. Fisher; and Gary A. Lofton. CALL TO ORDER Chairman Shickle called the meeting to order. INVOCATION Supervisor Dove delivered the invocation. PLEDGE OF ALLEGIANCE Vice - Chairman Ewing led the Pledge of Allegiance. ADOPTION OF AGENDA - APPROVED County Administrator John R. Riley, Jr. advised he had no changes to the agenda. Upon a motion by Supervisor DeHaven, seconded by Supervisor Lofton, the Board approved the agenda by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye CONSENT AGENDA - APPROVED Administrator Riley offered the following items for the Board's consideration under the consent agenda: - Request and Resolution from the Winchester- Frederick County Tourism Office for Virginia and National Scenic Byway Designation of The Wilderness Road — Tab D; - Request and Resolution from the Virginia Department of Transportation for Designation of Ridings Mill Road as a Rural Rustic Road — Tab E; - Parks and Recreation Commission — Tab G; - Lake Holiday Sanitary District Dam Working Committee — Tab H; and - Public Works Committee — Tab I. Chairman Shickle stated he would like to remove Tab D from the consent agenda and defer it until the next meeting, as he would like to see a map of the proposed route. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 049 Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the consent agenda as amended. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye CITIZEN COMMENTS Robert Light, Attorney with Lawson & Silek, appeared before the Board on behalf of the Shenandoah Valley Flea Market. He advised that if the Board had questions during the discussion of the ordinance amendment regarding flea markets he would be glad to try to answer them. BOARD OF SUPERVISORS COMMENTS There were no Board of Supervisors comments. MINUTES - APPROVED Upon a motion by Supervisor Lofton, seconded by Supervisor Dove, the Board approved the minutes from the August 2, 2010 Community Forum held in Star Tannery. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye Upon a motion by Supervisor Dove, seconded by Supervisor Fisher, the Board approved the minutes from the August 11, 2010 Regular Meeting. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye Upon a motion by Supervisor Dove, seconded by Vice - Chairman Ewing, the Board approved the minutes from the August 16, 2010 Community Forum held at Gainesboro Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 050 Elementary School. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye RESOLUTION ( #010 -10) IN MEMORIAM OF ESTHER L. BOYD - APPROVED Chairman Shickle read the following resolution: WHEREAS, Esther L. Boyd dedicated her life to the animals in our community; and WHEREAS, through her concern for their welfare and use of her own resources and time, she facilitated a change in the methods by which the county housed and cared for stray and abandoned animals; and WHEREAS, her efforts culminated in 1988 with the construction of the county government's first animal shelter, which carried her name; and WHEREAS, a new larger animal shelter was constructed in 2006 and still bears her name; and WHEREAS, Esther L. Boyd will be remembered as an angel for the animals. NOW, THEREFORE BE IT RESOLVED, that the Frederick County Board of Supervisors extends its deepest sympathy to the family of Esther L. Boyd. BE IT FURTHER RESOLVED, that this resolution be spread across the minutes of the Frederick County Board of Supervisors for all citizens to reflect upon the accomplishments of this dedicated citizen and that a true copy of this resolution be presented to her husband and family. ADOPTED this 8 th day of September, 2010. Upon a motion by Supervisor Lofton, seconded by Supervisor Dove, the Board approve the Resolution in Memoriam of Esther L. Boyd. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye Following the vote, Chairman Shickle presented a framed copy of the resolution to Esther Boyd's family. COMMITTEE APPOINTMENTS Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 051 REAPPOINTMENT OF J. STANLEY CROCKETT TO THE INDUSTRIAL DEVELOPMENT AUTHORITY AS MEMBER -AT -LARGE - APPROVED Upon a motion by Supervisor DeHaven, seconded by Supervisor Lofton, the Board reappointed J. Stanley Crockett as member -at -large to the Industrial Development Authority. This is a four year appointment, said term to expire November 10, 2014. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye APPOINTMENT OF JOHN R. CLAWSON AS COUNTY REPRESENTATIVE TO THE HANDLEY REGIONAL LIBRARY BOARD - APPROVED Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Dove, the Board appointed John R. Clawson as county representative to the Handley Regional Library Board. This is a four year appointment, said term to expire November 30, 2014. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye REQUEST AND RESOLUTION ( #011 -10) FROM THE WINCHESTER - FREDERICK COUNTY TOURISM OFFICE FOR VIRGINIA AND NATIONAL SCENIC BYWAY DESIGNATION OF THE WILDERNESS ROAD — POSTPONED UNTIL THE NEXT REGULAR MEETING Upon a motion by Supervisor DeHaven, seconded by Vice - Chairman Ewing, the Board postponed this request until the next regular meeting. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye REQUEST AND RESOLUTION ( #012 -10) FROM THE VIRGINIA DEPARTMENT OF TRANSPORTATION FOR DESIGNATING OF RIDINGS MILL ROAD AS A RURAL RUSTIC ROAD — APPROVED UNDER CONSENT AGENDA Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 052 WHEREAS, Section 33.1 -70.1 of the Code of Virginia, permits the improvement and hard surfacing of certain unpaved roads deemed to qualify for designation as a Rural Rustic Road; and WHEREAS, any such road must be located in a low - density development area and have no more than 1500 vpd; and WHEREAS, the Board of Supervisors of Frederick County, Virginia (`Board ") requests that Route 709 (Ridings Mill Road), From: Route 735 (Salem Church Road) to: 1.3 Miles South of Route 735 (Salem Church Road) be designated a Rural Rustic Road; and WHEREAS, the Board is unaware of pending development that will significantly affect the existing traffic on this road; and WHEREAS, this road is in the Board's six -year plan for improvements to the secondary system of state highways; and WHEREAS, the general public and particularly those citizens who own land abutting this road have been made aware that this road may be paved with minimal improvements as is consistent with the development of a rural rustic road project; and WHEREAS, the Board believes that this road should be so designated due to its qualifying characteristics; NOW, THEREFORE, BE IT RESOLVED, the Board of Supervisors for the County of Frederick, Virginia, hereby designates this road a Rural Rustic Road, and requests that the Residency Administrator for the Virginia Department of Transportation concur in this designation. BE IT FURTHER RESOLVED, the Board of Supervisors requests that this road be hard surfaced and, to the fullest extent prudent, be improved within the existing right of way and ditch -lines to preserve as much as possible the adjacent trees, vegetation, side slopes, and rural rustic character along the road in their current state. BE IT FURTHER RESOLVED, that a certified copy of this resolution be forwarded to the Residency Administrator for the Virginia Department of Transportation. ADOPTED this 8 1h day of September, 2010. REQUEST FROM THE COMMISSIONER OF REVENUE FOR REFUNDS APPROVED The Commissioner of the Revenue requested authorization for the Treasurer to refund the following: 1. ALTEC Capital Trust in the amount of $5,607.57. This amount represents the normal proration of leased vehicles for 2009 and 2010. Upon a motion by Supervisor DeHaven, seconded by Supervisor Fisher, the Board approved the above refund request. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 053 Gary A. Lofton Aye 2. General Electric Capital Corp. in the amount of $3,403.29. This amount represents the normal proration of leased vehicles for 2009 and 2010. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the above refund request. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye 3. Daimler Trust in the amount of $4,274.06. This amount represents the normal proration of leased vehicles for 2009 and 2010. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the above refund request. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye 4. GMAC in the amount of $4,335.47. This amount represents the normal proration of leased vehicles for 2009 and 2010. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above refund request. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye COMMITTEE REPORTS PARKS AND RECREATION COMMISSION REPORT — APPROVED UNDER CONSENT AGENDA The Parks and Recreation Commission met on August 17, 2010. Members present were: P.W. Hillyard, III, Ronald Madagan, Gary Longerbeam, Ron Hodgson, Marty Cybulski, and Chris Collins. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 J•R Items Requiring Board of Supervisors Action 1. None. Submitted for Board Information Only 1. Policy Manual — Mr. Madagan moved to approve the policy manual as submitted, econd by Mr. Longerbeam, carried unanimously (5-0). Standing Committee Reports 1. Appeals Committee — Mr. Cybulski presented the decision regarding a park suspension — No action required. LAKE HOLIDAY SANITARY DISTRICT DAM WORKING COMMITTEE — REPORT - APPROVED UNDER CONSENT AGENDA The LHSD Dam Working Committee met on Tuesday, August 24, 2010 at 10:00 a.m. Supervisor Dove was absent. No items require Board action. 1) Financing County staff submitted an application for financing to the Virginia Resources Authority (VRA) prior to the August 16, 2010 deadline. The viability of the application is unknown at this time. The VRA application is seen as a backup to the application for USDA funding which we hope to hear about in September. Staff sought input from the Committee on the value of submitting an application for funding to VML /VACo. The Committee discussion pointed out that: 1) because the spillway is a private project and therefore no likely to qualify for the subsidized interest payment offered through the Build America Bond program the interest rate that would apply to the loan would be far less favorable, and; 2) we have received very positive feedback from the USDA office in Harrisonburg on our pending application. It was the consensus of the Committee that there did not seem to be a need to submit a VML/VACo application by the September 2, 2010 deadline. Acting on the assumption that long term financing will ultimately be secured; the Committee will begin evaluating possible interim financing to be utilized during the period of the spillway construction. 2) Spillway Construction Members of the Committee agreed that bid specs for the spillway construction should contain performance measures that address the construction schedule in an effort to ensure that construction activities affecting the lake level commence in the late summer /early fall of 2011, establish a maximum drawdown for lake level, and limit significant reduction in the lake level to a single summer season. 3) Location of Borrow Site An on -site meeting was scheduled for August 27, 2010 for County staff to work with a LHCC backhoe operator to explore designated areas near the dam for use as a possible borrow site for materials that may be needed for a temporary coffer dam during the spillway construction. PUBLIC WORKS COMMITTEE REPORT — APPROVED UNDER CONSENT AGENDA The Public Works Committee and Green Advisory Committees met on Monday, August Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 055 30, 2010 at 8:00 a.m. All members were present except Christopher Collins, Gary Dove, and Whit Wagner. The following items were discussed: ** *Items Not Requiring Action * ** 1. Bid Results for IT Room — HVAC and Back -up Generator Improvements The Assistant County Administrator, Mr. Kris Tierney, indicated that the bids received for the HVAC and back -up generator for the IT room exceeded the approved funding. He indicated that the proposed designs will be rebid as separate contracts: electrical and mechanical. It is hoped that separating this work into two distinctly different contracts will result in significantly lower costs. 2. Status of New Virginia Stormwater Regulations Deputy Director of Public Works, Mr. Joe Wilder, presented a brief update of the new stormwater regulations. He indicated that he is currently serving on a state appointed committee to evaluate the impact of the new regulations on local municipalities. He further indicated that it is the desire of the governor and the Virginia Department of Conservation and Recreation to place the implementation and enforcement of the new regulations in the hands of local government. 3. Miscellaneous Reports: a. Tonnage Report Landfill (Attachment 1) b. Recycling Report (Attachment 2) c. Animal Shelter Dog Report (Attachment 3) d. Animal Shelter Cat Report (Attachment 4) 4. Energy Performance Contract The Committee discussed the Performance Contract proposal to be submitted for board approval. Committee members felt it important to relate the Performance Contract project as a means of realizing goals adopted by the BOS in the Frederick County Energy Improvement Plan (EIP). Energy Efficiency measures taken under the Performance Contract proposal would exceed the target set for electricity reduction under the EIP. FINANCE COMMITTEE REPOERT The Finance Committee met in the First Floor Conference Room at 107 North Kent Street on Wednesday, August 18, 2010 at 8:00 a.m. Members Ron Hottle, Stephen Swiger, and Richie Wilkins were absent. Items are forwarded to the BOS with no recommendations due to a lack of quorum. 1. The AARP Foundation requests an FYI I General Fund supplemental appropriation in the amount of $2,100 in order to continue the free Tax Aide program for low income citizens. See attached letter, p. 1. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above request with the Foundation to be notified to submit future funding requests as part of the county's budget process. Supervisor Lofton stated that in the future he would like to see information regarding the number of low- income elderly receiving assistance from this program. Minute Book Number 36 Board of Supervisors Regular Meeting of 09108110 05 The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye 2. The Green Advisory Committee requests approval of entering into an Energy Performance Contracting project in the amount of $345,477. Energy efficiency improvements include lighting retrofit, hot water control, vend - misers, high efficiency HVAC belts and 35 perimeter heat pump replacements. The GAC also requests funding recommendation and appropriations as needed. Local funds are required. See attached information, p. 2 -13. — Endorsed Work Program 2 From A Technical Aspect. Contract And Financing Referred Back To Finance Committee For Review And Recommendation. Jon Turkel, staff liaison to the Green Advisory Committee, Mark Elsier, Siemens, and Dan Acker, Department of Mines, Minerals, and Energy, appeared before the Board regarding this item. Mr. Turkel reviewed the Performance Contracting proposal. He concluded by saying the Board could choose to enter into the contract with Siemens or if they chose not to enter into the contract then they would owe Siemens $7,000.00 for their conduct of the technical audit. Mr. Elsier reviewed the cash flow resulting from the performance contracting. Mr. Acker advised that his department would serve as a third party to vet the numbers provided by Siemens as part of the contract monitoring. Supervisor Lofton inquired about the first part of the projected cash flow. Mr. Elsier responded that Siemens reviewed the rate at which existing individual HVAC units are being replaced. At present, it would take 35 years to replace all of the units. He noted that by replacing them all up front, the annual replacement costs would go away. He called this cost avoidance. He noted the county would probably get 12 to 15 years of service out of the new units. Mr. Turkel added that if the Board wanted the savings guarantee they would have to pay the performance assurance guarantee fee. He went on to say that after two or three years the Board could decide whether or not they wanted to continue paying the guarantee fee. Vice - Chairman Ewing asked if the fee was outside of the savings and cash flow. Mr. Elsier responded the fee was part of the cash flow. Chairman Shickle stated he thought there was great support among the Board for energy conservation measures. He went on to say he feared things were getting bogged down in Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 057 semantics, contracts, and fees. He concluded by saying he did not think "we are doing well getting it before the body ". Mr. Acker responded the contract was a boiler plate contract approved by the Virginia General Services Administration. He went on to say the Board could cancel the contract after three years and his department was seeing some localities and agencies doing this. Mr. Elsier responded if the county self - funded this program and there was no debt service then he did not see why the Board would want or need to keep the guarantee. Supervisor Fisher advised the Green Advisory Committee looked at this program from a technical standpoint and believes it has merit and the savings do exist. He went on to say this item was sent to the Finance Committee because of the different financing options (e.g. borrowing money or using fund balance). He stated if the savings are verified then there would be no need to continue with the guarantee after three to five years. He concluded by saying there are several pieces to this project, but the Board was committed to the energy reduction plan and the $7,000 for the technical audit. Supervisor Lofton asked if the Board was under a time constraint to get this done, as they had not seen the contract. He went on to say he would like to take it back to the Finance Committee after the County Attorney has reviewed and commented on the contract. Upon a motion by Supervisor Fisher, seconded by Supervisor Lofton, the Board endorsed work program 2 from a technical aspect. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye Administrator Riley recommended the contract and financing be taken back to the Finance Committee for review and a recommendation. 3. The NRADC Superintendent requests an FY 11 NRADC Fund supplemental appropriation in the amount of $31,749 This amount represents grant funds to hire a Pretrial Case Manager /Investigator. No local funds required. See attached memo, p. 14. - Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above request. Supervisor Lofton asked if this was a one -time expenditure or an on -going expense. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 Vice - Chairman Ewing responded this is a one -time expenditure, but the department understands the position will not be continued next year if there is no new grant funding. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye 4. The Assistant County Administrator requests an FY11 General Fund supplemental appropriation in the amount of $95,000 This amount represents a carry forward of funds for the server room climate control and a backup generator. This request was approved at the May 2010 meeting as a supplemental appropriation. See attached memo, p. 15. — 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 Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye 5. The County Administrator requests an FYI I General Fund supplemental gppropriation in the amount of $50,000 in order to carry forward PPEA funds. See attached memo, p. 16. — 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 Bill M. Ewing Christopher E. Collins Charles S. DeHaven, Jr Gary W. Dove Gene E. Fisher Gary A. Lofton Aye Aye Aye Aye Aye Aye Aye ** *Information Only * ** 1. The Finance Director provides an updated Fund 10 Transfer report for FYI 0. NOTE: this is a preliminary report; it is not the final year end report. See attached, p. 17 -27. 2. The Finance Director provides an updated June 2010 Unreserved Fund Balance report. NOTE: this is a preliminary report; it is not the final year end balance. See attached, p. 28. TRANSPORTATION COMMITTEE REPORT - APPROVED The Transportation Committee met on August 23, 2010, at 8:30 a.m. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 059 Members Present Chuck DeHaven (voting) Gary Lofton (voting) James Racey (voting) George Kriz (liaison PC) Gary Oates (liaison PC) Lewis Boyer (liaison Stephens City) Members Absent Mark Davis (liaison Middletown) Dave Burleson (voting) ** *Items Requiring Action * ** 3. Double Church Road Truck Restriction — Approved. This item was a follow -up to the placement of warning signs by VDOT. Staff noted that though the warning signs have now been in place for some time, complaints of trucks on the roadway and associated safety concerns have continued to come in to staff and to Supervisor Ewing. It was discussed by members of the Committee that if this road is truck restricted, that we may want to consider a restriction on Reliance Road. Committee members noted that additional traffic counts would reveal little since the previous truck count was already quite low and any trucks on the roadway are unsafe. Committee members asked VDOT to clarify which types of vehicles would be impacted, and it was noted that basically anything larger than a UPS type truck would be impacted. The Committee noted concerns about unintended consequences, but ultimately felt that the truck restriction was the last item available to try. On a motion by Mr. Lofton and seconded by Mr. Racey, the Committee recommends to the Board of Supervisors that they move forward with a truck restriction request to VDOT. Upon a motion by Supervisor DeHaven, seconded by Vice - Chairman Ewing, the Board approved forwarding the truck restriction request for Double Church Road to VDOT. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye 5. Economic Development Access Road Funding— (Resolution #013 -10 — Graystone Corporation Development) - Approved Staff noted that after approval by the CTB in June of this year, the Graystone development is working with staff to obtain another award for the current fiscal year. Staff noted that there are no competing applications and that, per VDOT, this would be a County - managed project. On a motion by Mr. Lofton and seconded by Mr. Racey, the Committee recommends that the Board adopt the attached resolution in support of economic development road access funding from VDOT. Upon a motion by Supervisor DeHaven, seconded by Supervisor Lofton, the Board approved the resolution in support of economic development road access funding. WHEREAS, Graystone Corporation of Virginia has acquired property for the purpose of economic development use located off of Route 11 in the County of Frederick, Virginia, for the purpose of economic development within Graystone Corporation Office and Industrial Park; and Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 i.l WHEREAS, this property is expected to be the site of a new private capital investment in land, building, and manufacturing equipment which will provide substantial employment; and WHEREAS, the subject property has no access to a public street or highway and will require the construction of a new roadway to connect with Route 11; and WHEREAS, the County of Frederick hereby guarantees that the necessary environmental analysis, mitigation, fee simple right -of -way and utility relocations or adjustments, if necessary, for this project will be provided at no cost to the Economic Development Airport and Rail Access Fund; and WHEREAS, the County of Frederick acknowledges that no land disturbance activities may occur within the limits of the proposed access project prior to appropriate notification from the Department of Transportation; and WHEREAS, the County of Frederick hereby guarantees that all ineligible project costs and all costs not justified by eligible capital outlay will be provided from sources other than those administered by the Virginia Department of Transportation. NOW, THEREFORE, BE TI RESOLVED THAT: The Frederick County Board of Supervisors hereby requests that the Commonwealth Transportation Board provide Economic Development Access Program funding to provide an adequate road to this property; and BE IT FURTHER RESOLVED THAT: The Frederick County Board of Supervisors hereby agrees to provide a surety bond, acceptable to and payable to the Virginia Department of Transportation, in the full amount of the Commonwealth Transportation Board's allocation less eligible private capital outlay credit determined by VDOT; this surety shall be exercised by the Department of Transportation in the event that sufficient qualifying capital investment does not occur on Route 11 within five years of the Commonwealth Transportation Board's allocation of funds pursuant to this request; and BE IT FURTHER RESOLVED THAT: The Frederick County Board of Supervisors hereby agrees that the new roadway so constructed will be added to and become a part of the Frederick County secondary system of state highways. ADOPTED this 8` day of September, 2010. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye ** *Items Not Requiring Action * ** 1. Route 522 South Draft Report Staff provided access to the updated design guidelines (attached) as provided by the consultant. Staff noted that the types of designation, and where they are located within Frederick County, had been modified to address feedback given by staff. In addition, it was noted that additional language had been added to make clear that the median plantings shown in the design principles would require additional coordination with VDOT. Committee members echoed staff's concern about whether the landscaping shown in the Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 061 median was realistic. Staff noted that the notes added regarding additional coordination needed with VDOT for these plantings was in response to staff's concerns. Staff noted that they believe the design types now shown were more in keeping with the speeds and development patterns desired by the County as promoted in the Comprehensive Plan and asked for correction if the Committee felt this was not accurate. One Committee member stated that he felt the plan was unrealistic. When asked whether he meant the landscaping or the design principles, he stated that the entire plan was unrealistic. Supervisor Dove stated he agreed with whoever stated the plan was unrealistic regarding the Route 522 study. 2. Comprehensive Plan Update Staff provided the first draft of the Transportation section of the Comprehensive Plan to the Committee and asked for feedback as soon as was convenient for the members. Staff also noted that a second draft was already in the works. This item will be mailed to the Board as part of the information packet on the Comprehensive Plan update. 4. Enhancement Funds To date, the County has been awarded $390,000.00 in federal enhancement funding for the Senseny Road bicycle and pedestrian improvements. An additional $97,000.00 in local matching funds will be required to utilize the federal funding. Due to the difficult economic times with which Frederick County and the nation find themselves, staff is seeking a recommendation to the Board as to whether to retain these funds. For the purposes of clarity, the enhancement grants are reimbursement grants for which localities do not receive payment until they have expended the funds. Staff noted that the first round ($140,000.00) of funding will be hitting its time limit for being used this coming spring, and noted that no matching funds had been identified at this point. Staff requested a recommendation to the Board regarding how to disposition these funds; whether to preemptively notify VDOT that the County would be unable to use them or to wait until VDOT recalled the funds. The consensus of the Committee was to wait for now in order to make further efforts to identify matching funds. 6. Other PUBLIC HEARING PUBLIC HEARING - PROPOSED AMENDMENTS TO THE FREDERICK COUNTY CODE, CHAPTER 155, TAXATION; ARTICLE VI, PROBATE OF WILLS; GRANTS OF ADMINISTRATION; SECTION 155 -29, TAX IMPOSED AND SECTION 155 -30 DISPOSITION OF TAXES COLLECTED. THE PROPOSED AMENDMENTS ARE IN RESPONSE TO LEGISLATION PASSED BY THE 2010 GENERAL ASSEMBLY THAT ENABLES LOCALITIES TO IMPOSE A $25 FEE TO BE COLLECTED BY THE CLERK OF THE CIRCUIT COURT ON THE RECORDATION OF LISTS OF HEIRS AND AFFIDAVITS OF REAL ESTATE OF INTESTATE DECEDENTS - DENIED Administrator Riley advised this proposed amendment was in response to 2010 legislation, which allows the Clerk of the Circuit Court to impose a $25 fee on the recordation of lists of heirs and affidavits of real estate of intestate decedents. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 062 Chairman Shickle convened the public hearing. There were no public comments. Chairman Shickle closed the public hearing. Supervisor Lofton moved to approve the ordinance amendment. The motion was seconded by Supervisor Collins. Supervisor Dove asked if this was something the clerk's office was currently doing or if this was something that was not presently being collected. Supervisor Collins responded this was something that was enabled by the State Code, but was not currently being done. Supervisor Dove stated this was adding another "tax" on to the citizens and if we are not currently collecting it and doing fine then he would have a problem adding this "tax ". The above motion failed by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Nay Christopher E. Collins Aye Charles S. DeHaven, Jr. Nay Gary W. Dove Nay Gene E. Fisher Nay Gary A. Lofton Aye PUBLIC HEARING - PROPOSED AMENDMENTS TO THE FREDERICK COUNTY CODE, CHAPTER 155, TAXATION; ARTICLE XVIII, SPECIAL LICENSE PROVISIONS; SECTION 155 -96 LICENSE FEE AND TAX AND CREATION OF A NEW ARTICLE, ARTICLE XXVI, SHORT -TERM RENTAL PROPERTY TAX. THE PROPOSED AMENDMENTS TO CREATE A NEW ARTICLE WHICH IMPLEMENTS A NEW SHORT -TERM RENTAL TAX, WHICH WAS AUTHORIZED BY THE 2010 GENERAL ASSEMBLY TO ALLOW LOCALITIES TO IMPOSE THE SHORT -TERM RENTAL TAX TO OFFSET REVENUES LOST BY THE ELIMINATION OF THE PERSONAL PROPERTYIBUSINESS EQUIPMENT TAXES ON SHORT -TERM RENTAL PROPERTY; PROPOSED AMENDMENTS TO SECTION 155 -96 (C) CLARIFY THE APPLICATION OF LICENSE TAX RATES IN THE PARTICULAR INSTANCE OF BUSINESSES ENGAGING IN THE SALE OF ALCOHOLIC BEVERAGES - APPROVED Administrator Riley advised this was an ordinance to implement a new short-term rental tax to off -set revenue lost by the General Assembly's revocation of the machinery and tools tax on short-term rental equipment. 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 Dove, the Board approved Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 M the amendments to the Frederick County Code Chapter 155, Taxation. The Board of Supervisors of Frederick County, Virginia hereby ordains that Section 155 -96 of Article XVIII (Special License Provisions) of Chapter 155 (Taxation) of the Code of Frederick County, Virginia be, and the same hereby is, amended by enacting an amended Section 155 -96 of Article XVIII (Special License Provisions) of Chapter 155 (Taxation), and that Article XXV (Short-Term Rental Property Tax) of Chapter 155 (Taxation) of the Code of Frederick County, Virginia be, and the same hereby is enacted, all to read as follows and to take effect immediately (deletions are shown in bold stAkethrough and additions are shown in bold underline) CHAPTER 155 ARTICLE XVIII Special License Provisions § 155 -96. License fee and tax. A. Unless otherwise provided in this section, every person or business subject to licensure under this article shall be assessed and required to pay annually a fee for the issuance of such license as follows: (1) Gross receipts of $ 4,000 to $14,999.99 will owe a fee of $30. (2) Gross receipts of $15,000 to $99,999.99 will owe a fee of $50. B. Instead of the license fee specified in subsection A above, and except as may be otherwise provided in this section or in §§ 58.1 -3712, 58.1- 3712.1 and 58.1 -3713, Code of Virginia, every such person or business subject to licensure under this article with annual gross receipts of $100,000 or more shall be assessed and required to pay annually a license tax on all the gross receipts of such persons includable as provided in this article at a rate set forth below for the class of enterprise listed: (1) For contractors and persons constructing for their own account for sale, $0.16 per $100 of gross receipts. (2) For retailers and retail sellers, and including operators of coin - operated machines or devices, which includes direct sellers as defined in the Code of Virginia and including Persons engaged in the short -term rental business as defined in 4 58.1 - 3510.4 of the Code of Virginia $0.20 per $100 of gross receipts. (3) For financial, real estate and professional services, $0.58 per $100 of gross receipts. (4) For repair, personal and business services and all other businesses and occupations not specifically listed or exempted in this article or otherwise by law, $0.36 per $100 of gross receipts. (5) For wholesalers and wholesale merchants, $0.05 per $100 of purchases (see § 58.1 -3716, Code of Virginia, for limitations). C. Instead of the license fees specified in subsections A and B above and except as provided in paragraph (9)(f) of this subsection every other such person or business subject to licensure under this article shall be assessed and required to pay a license tax as set forth below for the class of enterprise listed: (1) For carnivals, circuses and speedways, $500 for each performance held in this jurisdiction (see § 58.1 -3728, Code of Virginia, for limitations). (2) For fortune tellers, clairvoyants and practitioners of palmistry, $1,000 per year, and is nonproratable and nontransferable. (3) For massage parlors, $200 per year, and must meet the requirements of Chapter 112 of the Frederick County Code, and is nonproratable and nontransferable. (4) For itinerant merchants or peddlers, $500 per year (see limitation § 58.1 -3717, Code of Virginia). This license is nonproratable and nontransferable. For limitations for dealers in fireworks or explosives, see subsection C (4) (a) below. Detailed explanation of itinerant and distressed vendors is found later in this article. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 064 a. Each person dealing in the sale of fireworks or explosives and who sets up a temporary location must first comply with the Fire Marshal and the Zoning Administrator's office and because of the nature of the merchandise shall be issued an itinerant merchants license for a period of not more than 30 days, nonproratable. b. No persons shall be exempt from the payment of the license tax imposed by this section by reason of associating temporarily with any local merchant, dealer or trader or by reason of conducting such business in the name of any local merchant, dealer, trader or auctioneer. (5) For photographers, $30 per year, if without regularly established places of business in this as limited under § 58.1 -3727, Code of Virginia. (6) For permanent coliseums, arenas or auditoriums having a maximum capacity in excess of 10,000 persons, open to the public, $1,000 per year. (7) For savings and loan associations and credit unions, $50 per year only if the main office is located within this County. (8) For direct sellers as defined in § 58.1- 3719.1, Code of Virginia, with total annual sales in excess of $4,000, $0.20 per $100 of total annual retail sales or $0.05 per $100 of total annual wholesale sales, whichever is applicable. (9) For sale of alcoholic beverages: a. Every person who shall engage in the business of manufacturing, bottling, wholesaling or retailing alcoholic beverages shall obtain a license therefor and shall pay therefor the license tax hereinafter provided. L Distiller's license. For each distiller's license, the license tax shall be $500 per annum, provided that no license shall be required of any distiller manufacturing not more than 5,000 gallons of alcohol or spirits, or both, during such license year. ii. Winery license. For every winery license, the license tax shall be $500 per annum, provided that no license shall be required of any winery manufacturing not more than 5,000 gallons of wine during such license year. iii. Brewery license. For each brewery license, the license tax shall be $500 per annum. iv. Bottler's license. For each bottler's license, the license tax shall be $150 per annum. v. Wholesale beer and wine license. For each wholesale beer license, the license tax shall be $200 per annum. vi. Retail on- premises wine and beer license. For each retail on- premises wine and beer license, the license tax shall be $20 per annum. vii. Retail off - premises wine and beer license. For each retail off - premises wine and beer license, the license tax shall be $20 per annum. b. For each mixed beverage license for restaurants, including restaurants located on premises of and operated by hotels and motels, the license tax shall be: i. One hundred dollars per annum for each restaurant with a seating capacity at tables for 50 to 100 persons. ii. One hundred fifty dollars per annum for each restaurant with a seating capacity at tables for more than 100 but not more than 150 persons. iii. Two hundred dollars per annum for each restaurant with a seating capacity at tables for more than 150 persons. iv. Two hundred dollars per annum for each private, nonprofit club operating a restaurant on the premises of such club. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 c. The aforesaid license shall be as respectively defined by the Act of the General Assembly, known as the "Alcoholic Beverage Control Act," and the terms "alcoholic beverages," "alcohol," "spirits" and "wine," wherever used in this article, shall reflect the meanings respectively ascribed to them by such Act. d. No license shall be issued under this section to any person unless such person shall hold or secure simultaneously therewith the proper state license required by the Alcoholic Beverage Control Act, which state license shall be exhibited to the Commissioner of the Revenue, and all dining rooms, restaurants, lunchrooms and clubrooms wherein the beverages herein defined are sold for consumption on the premises shall at all times be open to inspection by the State Police and the police or Sheriffs authorities of this County; provided, further, that all storerooms or other buildings from which deliveries are made, either at wholesale or retail, whether they are bottlers, wholesalers or retailers, shall at all times be open to inspection by State Police and police or Sheriffs authorities of the County. Any violation of the terms of this provision shall be sufficient grounds for the revocation of the license issued in accordance with this section. e. No alcoholic beverage license shall be prorated or transferable. f. This tax shall be in addition to applicable license taxes based on gross receipts or gross purchases. In imposing retail merchant license taxes measured by gross receipts, the term "gross receipts" shall be construed to include receipts from the sale of alcoholic beverage by persons licensed under this section. In computing gross receipts, alcoholic beverages shall be included in the base for measuring such license taxes the same as if the alcoholic beverages were nonalcoholic. No alcoholic beverage license levied under this section shall be construed as exempting any license from any merchant license tax, and such merchant license tax shall be in addition to the alcoholic beverage taxes levied under this section. CHAPTER 155 ARTICLE XXVI Short -Term Rental Property Tax 155 -155. Short -Term Rental Property Tax. A. Definitions. (1) "Short -term rental property ", for purposes of this Article, means all tangible Personal property held for rental and owned by a person engaged in the short -term rental business as defined in subsection B, excluding. (i) trailers as defined in & 46.2- 100 of the Code of Virginia, and (ii) other tangible personal property required to be licensed or registered with the Virginia Department of Motor Vehicles, Virginia Department of Game and Inland Fisheries, or Virginia Department of Aviation. (2) "Gross proceeds ", for purposes of this Article, means the total amount charged to each person for the rental of short -term rental property, excluding any state and local sales tax paid under the provisions of Chapter 6 N 58.1 -600 et seq.) of Title 58.1 of the Code of Virginia. B. There is hereby imposed the following tax: (1) In the amount of one percent, in addition to the tax levied pursuant to & 58.1 -605 of the Code of Virginia, on the gross proceeds arising from rentals of any person engaged in any business as to which not less than 80 percent of the gross rental receipts of such business during the preceding year arose from transactions involving the rental of short -term rental property, other than heavy equipment property as defined in paragraph B(2), for periods of 92 consecutive days or less, including all extensions and renewals to the same person or a person affiliated with the lessee. (2) In the amount of one - and - one -half percent, in addition to the tax levied pursuant to § 58.1 -605 of the Code of Virginia, on the gross proceeds arising from rentals of any person engaged in anv business as to which not less than 60 percent of the gross Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 1 • • rental receipts of such business during the preceding year arose from tra nsa c tions involving the rental of heavy equipment property for periods of 270 con secutive days or less, including all extensions and renewals to the same person or a person affiliated with the lessee For the purposes of this subsection, "heavy eq uipment property" means rental property of an industry that is described under code 532412 or 532490 of the 2002 North American Industry Classification System as p ublished by the United States Census Bureau, excluding office furniture, office eq uipment, and programmable computer equipment and peripherals as defined in & 5 8. 1 - 3503(A)(16) of the Code of Virginia. C. For purposes of determining whether a person is engaged in the short -term rental business as defined in subsection B, (i) a person is "affiliated" with the lesse of rental property if such person is an officer, director, partner, member, shareholder, p arent or subsidiary of the lessee, or if such person and the lessee have any common ow nership interest in excess of five percent, (ii) any rental to a person affiliated with t he lessee shall be treated as rental receipts but shall not qualify for purposes of the 80 pe rcent requirement of subdivision 1 of subsection B or the 60 percent requir of subdivision 2 of subsection B and iii any rental of personal pro which also involves the provision of personal services for the operation of the personal p r o pert y rented shall not be treated as gross receipts from rental, provided however that the delivery and installation of tangible personal property shall not mean operation f or the p urposes of this subdivision. D. Any person engaged in the short -term rental business, as defined in this section, shall collect such tax from each lessee of rental property at the time of rental and shall transmit a quarterly return, not later than the fifteenth day following the end of each calendar quarter, to the commissioner of the revenue, reporting the gros rental proceeds derived from the short -term rental business. The commissioner of the revenue shall assess the tax due, and the short -term rental business shall pay the tax so assessed to the treasurer not later than the last day of the month following the en of the calendar quarter. Any failure to file a quarterly return required by this secti or to pay short -term rental property tax when due shall be subiect to the provisions of & 58.1- 3510.7 of the Code of Virginia No tax under this section shall be collected or a s s essed, however, on (i) rentals by the Commonwealth, any political subdivision of the Commonwealth or the United States or (ii) any rental of durable medical equipmen a defined in subdivision 10 of & 58.1- 609.10 of the Code of Virginia. E. Registration. (1) Every person engagin in the short -term rental business, as defined in this section, shall file annually with the commissioner of the revenue an applicatio for a certificate of registration The application shall be in a form prescribed by the commissioner of the revenue and shall set forth the name under which the appl operates or intends to operate the rental business, the location of the business, the paragraph of subsection B under which the business asserts that it is qua for certification as a short -term rental business, and such other information as the commissioner may require. (2) Each applicant shall sign the application as owner of the rental business. If th rental business is owned by an association, partnership, limited liability compa or corporation, the application shall be signed by a member, partner, execu officer, or other person specifically authorized by the association, partnership, limited liability company, or corporation to sign. (3) Upon approval of the application by the commissioner, a certificate of registration shall be issued The certificate shall be conspicuously displayed at all times at the place of business for which it is issued. (4) The certificate is not assignable and shall be valid only for the person in whose name it is issued and the place of business designated. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 • (5) A person who has not previously been engaged in the short -term rental business who applies for a certificate of registration pursuant to this section shall be eligible for registration upon his certification that he anticipates meeting the requirements of a specific paragraph of subsection B, designated by the applicant at the time df application, during the year for which registration is sought. (6) In the event that the commissioner of the revenue makes a written determination that a rental business previously certified as short -term rental business pursuant to this section has failed to meet either of the tests set forth in subsection B during a preceding-tax year, such business shall lose its certification as a short -term rental business and shall be subject to the business personal property tax with respect to all rental property for the tax year in which such certification is lost and any subsequent tax years until such time as the rental business obtains recertification pursuant to this section. In the event that a rental business loses its certification as a short -term rental business pursuant to this subsection, such business shall not be required to refund to customers daily rental property taxes previously collected in good faith and shall not be subject to assessment for business personal property taxes with respect to rental property for tax years preceding the year in which the certification is lost unless the commissioner makes a written determination that the business obtained its certification by knowingly making materially false statements in its application, in which case the commissioner may assess the taxpayer the amount of the difference between short -term rental property taxes remitted by such business during the period in which the taxpayer wrongfully held certification and the business personal property taxes that would have been due during such period but for the certification obtained by the making of the materially false statements. Any such assessment, and any determination not to certify or to decertify a rental business as a short -term rental business as defined in this subsection, may be appealed pursuant to the procedures and requirements set forth in & 58.1- 3983.1 of the Code of Virginia for appeals of local business taxes, which shall apply mutatis mutandis to such assessments and certification decisions. (7) A rental business that has been decertified pursuant to the provisions of this subsection shall be eligible for recertification for a subsequent tax year upon a showing that it has met one of the tests provided in subsection B for at least ten months of operations during the present tax year. Enacted this 8th day of September, 2010. The above motion was approved by the following recorded vote: Richard C. Shickle Nay Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye PUBLIC _HEARING - PROPOSED AMENDMENTS TO THE FREDERICK COUNTY CODE; CHAPTER 65, CHECKS, FRAUDULENT AND CHAPTER 155, TAXATION; ARTICLE I, GENERAL PROVISIONS; SECTION 155 -4.1, FEE FOR DELINQUENT TAXES. THE PROPOSED AMENDMENTS WOULD BRING THE COUNTY CODE INTO CONFORMANCE WITH THE STATE CODE OF VIRGINIA TO REFLECT THE INDUSTRY STANDARD FOR RETURNED CHECKS AND ADMINISTRATIVE COSTS ASSOCIATED WITH THE LOCALITY'S COLLECTION OF SAME - APPROVED Administrator Riley advised this was an amendment to the Frederick County Code, which would bring the County Code into compliance with the State Code regarding bad check Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 �i fees. 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 Vice - Chairman Ewing, the Board approved the amendments to Frederick County Code, Chapter 65, Checks, Fraudulent and Chapter 155, Taxation, Article I, General Provisions; Section 155 -4.1, Fee for Delinquent Taxes. The Board of Supervisors of Frederick County, Virginia hereby ordains that Sections 65 -1 and 65 -2 of Chapter 65 (Checks, Fraudulent) of the Code of Frederick County, Virginia and Section 155 -4.1 of Article I (General Provisions) of Chapter .155 (Taxation) of the Code of Frederick County, Virginia, be, and the same hereby are, amended as follows, effective immediately (deletions are shown in s4ikethreugh and additions are shown in bold underline) CHAPTER 65 CHECKS, FRAUDULENT § 65 -1. Legislative authority. Section 15.2 --1�5 106 of the Code of Virginia, 1950, as amended, provides that the governing body of Frederick County, Virginia, is authorized to adopt an ordinance which places a fee on those persons who pass bad checks onto the County. § 65 -2. Fee established. There shall be a fee of W $35 placed on any person or business for the uttering, publishing or passing of any check or draft for payment of taxes or any other sums due, which is subsequently returned for insufficient funds or because there is no account or the account has been closed or because such check, draft, or order was returned because of a stop - payment order placed in bad faith on the check, draft, or order by the drawer CHAPTER 155 TAXATION Article I General Provisions § 155 -4.1. Fee for delinquent taxes. There is hereby imposed on delinquent taxpayers a fee to cover the administrative cost associated with the collection of delinquent taxes. Such fees shall be in addition to all penalty and interest and be in the amount of Q0 $30 for taxes collected subsequent to the filing of a warrant or other appropriate legal document, but prior to judgment, and 05 $35 for taxes collected subsequent to judgment. Enacted this 8 day of September, 2010. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye PLANNING COMMISSION BUSINESS Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 W as" DISCUSSION - ORDINANCE AMENDMENT FOR FLEA MARKETS — (RESOLUTION #014 -10) - SENT FORWARD FOR PUBLIC HEARING Senior Planner Candice Perkins appeared before the Board regarding this item. She advised staff had been requested to draft an amendment to the Zoning Ordinance to address the allowance of flea markets. Currently, flea markets are only permitted in the B2 (Business General) District under SIC 5932 — Used Merchandise Sales. She went on to say staff prepared a draft amendment to the Zoning Ordinance to allow indoor flea markets as a permitted use in the B2 (Business General) District and indoor /outdoor flea markets as a conditional use in the RA (Rural Areas) District. Supplementary use regulations have also been drafted that would correspond with the conditional use in the RA District. The supplemental use regulations address' the following: parcel size, access, parking, and surface material, allowable days of operation, buffers and fencing, and a site plan requirement. A definition of flea markets has also been drafted. She advised the Planning Commission discussed this item at their August 18, 2010 meeting and noted the Commission talked about the gravel requirement and stated that alternative pervious materials should be considered, including the use of grass surfaces. She concluded by saying this item was being presented to the Board for discussion and staff was seeking guidance regarding whether or not this was ready to go to public hearing. Supervisor DeHaven stated he would like to hear more information regarding requirement number 8, which deals with buffers. He advised a buffer makes sense if the adjacent use is residential, but he wondered how we define agricultural purposes and when fencing would be required. Senior Planner Perkins responded the purpose of the fence was to ensure there were no trespassing issues, such as people from the flea market going onto adjacent properties. She went on to say concern was raised about residential uses adjacent to a flea market, thus the reason for the buffer requirement. Supervisor DeHaven asked if there was an in depth discussion regarding buffers, because as proposed, it seems wrought with potential for confusion. Planning Director Eric Lawrence stated if the house was adjacent to a flea market use then a buffer would be required. He went on to say it becomes a judgment call, but the buffer would only go long enough to buffer the house from the use. Vice - Chairman Ewing asked for an example when a vendor would need a business Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 D70 license. Senior Planner Perkins responded the owner of the flea market could have one license and it would be up to him/her to collect from the individual vendors working under that license, or each individual vendor could have its own business license. Supervisor Lofton questioned the requirement that the flea market property have direct frontage and access to a collector or arterial roadway. He went on to say that he had seen areas I where no parking signs had to be placed along collector or arterial roadways because people used the side of the road for parking. Senior Planner Perkins responded the ordinance wanted to encourage direct access and also includes provisions for adequate parking on site. Chairman Shickle clarified that based upon the comments thus far the Board had concerns with items 2, 8, and 9. Supervisor Fisher stated item 8 was a concern for him and he felt it needed clarification. Chairman Shickle stated that perhaps fences needed to be there plus an additional buffer. Director Lawrence advised this use was proposed as a conditional use permit and the ten requirements were to provide structure; however, the Board could add additional requirements, including fencing, etc. He concluded by saying the structure is being provided so everyone I I _ . would know what the basics are when they apply. Chairman Shickle suggested removing "agricultural purposes" from item 8, but leave the remainder. Supervisor DeHaven suggested striking "When adjacent... agricultural purposes" from item #8. Supervisor Lofton suggested "frontage and" be stricken from item 42. Supervisor Dove stated he had a problem with all of these conditions because the Board was either going to approve it or not. Supervisor DeHaven stated this section of the ordinance goes a long way in protecting the county. He noted that VDOT has their own requirements for road frontage, etc., so he was not sure that #2 is bad. Senior Planner Perkins stated that #9 was meant to give the Commissioner of the Revenue the flexibility to change business license requirements without having to change this section of the ordinance each time. She concluded by saying staff could clarify the wording. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 071 Supervisor DeHaven stated he was comfortable sending this item forward to public hearing with the amendments discussed. Upon a motion by Supervisor DeHaven, seconded by Supervisor Lofton, the Board approved sending this item forward to public hearing with the amendments as discussed. WHEREAS, the Frederick County Planning Department has been directed to prepare modifications to Chapter 165, Zoning to include indoor flea markets as a permitted use in the B2 (Business General) District and indoor /outdoor flea markets as a conditional use in the RA (Rural Areas) District. WHEREAS, the Development Review and Regulations Committee (DRRC) recommended approval of this amendment on July 22, 2010; and WHEREAS, the Planning Commission discussed the draft ordinance on August 18, 2010 and recommended that a public hearing be held; and WHEREAS, the Frederick County Board of Supervisors finds that in the public necessity, convenience, general welfare, and good zoning practice, directs the Frederick County Planning Commission hold a public hearing regarding an amendment to Chapter 165, Zoning to include indoor flea markets as a permitted use in the B2 (Business General) District and indoor /outdoor flea markets as a conditional use in the RA (Rural Areas) District. NOW, THEREFORE, BE IT REQUESTED by the Frederick County Board of Supervisors that the Frederick County Planning Commission shall hold a public hearing to consider revisions to Chapter 165, Zoning, to include indoor flea markets as a permitted use in the B2 (Business General) District and indoor /outdoor flea markets as a conditional use in the RA (Rural Areas) District. Passed this 8 th day of September, 2010 by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Nay Gene E. Fisher Aye Gary A. Lofton Aye DISCUSSION — ORDINANCE AMENDMENT FOR DIRECTIONAL SIGNS — (RESOLUTION #015 -10) - SENT FORWARD FOR PUBLIC HEARING Senior Planner Candice Perkins appeared before the Board regarding this item. She advised that the sign ordinance contained within the Zoning Ordinance required clarification as it pertains to off - premise directional signage. The sign ordinance revision adopted in 2007 limited off - premise signs to business signs and multi - tenant complex signs, but did not specifically address directional signage. She went on to say off - premise directional signage has been permitted with a conditional use permit in most Zoning Districts since 1973. She continues by saying the current wording of the Zoning Ordinance could be misleading because directional signs and business signs are two different types of signs; however, both off - premise signs and business signs are defined as signs "which directs attention to" and, therefore, would also be Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 07 considered directional signs. Staff proposed amendments to the sign ordinance to revise the "off- premise business signs" provisions as well as the definition of directional signage. She concluded by saying the Planning Commission discussed this item and forwarded it to the Board for discussion and direction. Chairman Shickle asked what we were trying to do with this amendment. Senior Planner Perkins responded this amendment would clarify that off -site directional signs are permitted as part of a conditional use permit. Supervisor DeHaven thought the proposal was great and was a great solution to this issue. He expressed his appreciation for all of the hard work on this topic. Upon a motion by Supervisor DeHaven, seconded by Supervisor Fisher, the Board approved sending this item forward for public hearing. WHEREAS, the Frederick County Planning Department has been directed to prepare modifications to Chapter 165, Zoning to clarify off - premise directional signage. WHEREAS, the Development Review and Regulations Committee (DRRC) recommended approval of this amendment on July 22, 2010; and WHEREAS, the Planning Commission discussed the draft ordinance on August 18, 2010 and recommended that a public hearing be held; and WHEREAS, the Frederick County Board of Supervisors finds that in the public necessity, convenience, general welfare, and good zoning practice, directs the Frederick County Planning Commission hold a public hearing regarding an amendment to Chapter 165, Zoning to clarify off - premise directional signage. NOW, THEREFORE, BE IT REQUESTED by the Frederick County Board of Supervisors that the Frederick County Planning Commission shall hold a public hearing to consider revisions to Chapter 165, Zoning to clarify off - premise directional signage. Passed this 8 th day of September, 2010 by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Aye BOARD LIAISON REPORTS There were no Board liaison reports. CITIZEN COMMENTS There were no citizen comments. BOARD OF SUPERVISORS COMMENTS Chairman Shickle reminded the Board of the third community forum that would take Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10 073 place on Monday, September 13, 2010 at Greenwood Mill Elementary School. ADJOURN UPON A MOTION BY VICE - CHAIRMAN EWING, SECONDED BY SUPERVISOR DOVE, THERE BEING NO FURTHER BUSINESS TO COME BEFORE THIS BOARD, THIS MEETING IS HEREBY ADJOURNED. (9:00 P.M.) Richard C. Shickle JJKTZ. Riley, Jr. Chairman, Board of Supervisors Clerk, Board of Supervisors Minutes Prepared By: Jay . bs Deputy Clerk, Board of Supervisors Minute Book Number 36 Board of Supervisors Regular Meeting of 09/08/10