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September 22 2010 Regular Meeting Minutes076 A Regular Meeting of the Frederick County Board of Supervisors was held on Wednesday, September 22, 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; and Gene E. Fisher. ABSENT Gary A. Lofton. CALL TO ORDER Chairman Shickle called the meeting to order. INVOCATION Reverend Tim Illsley, Church of the Holy Spirit, 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 Fisher, seconded by Vice - Chairman Ewing, 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 Absent 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 Q and - Road Resolution — Apple Glen Estates — Tab L. Upon a motion by Supervisor Dove, seconded by Supervisor DeHaven, the Board approved the consent agenda by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 077 Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Absent CITIZEN COMMENTS There were no citizen comments. BOARD OF SUPERVISORS COMMENTS There were no Board of Supervisors' comments. MINUTES - APPROVED Upon a motion by Supervisor Dove, seconded by Vice - Chairman Ewing, the Board approved the minutes from the September 8, 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 Absent Upon a motion by Supervisor DeHaven, seconded by Supervisor Collins, the Board approved the minutes from the September 13, 2010 Community Forum at Greenwood Mill 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 Absent COUNTY OFFICIALS REOUEST AND RESOLUTION ( #011 -10) FROM THE WINC FREDERICK COUNTY TOURISM OFFICE FOR VIRGINIA AND NATIONAL SCENIC BYWAY DESIGNATION OF THE WILDERNESS ROAD (POSTPONED FROM SEPTEMBER 8, 2010 BOARD MEETING.)_ — APP UNDER CONSENT AGENDA WHEREAS, From 1775 -1810 an estimation of nearly 300,000 settlers traveled through Virginia to the Cumberland Gap. This migration and western movement is a significant point of Virginia history and to the development of the United States of America. Today, an estimated 43 million Americans can trace their ancestors to the migration through Virginia along the Wilderness Road: Virginia's Heritage Migration Route; and WHEREAS, The historical migration of early settlers and pioneers to Virginia followed closely to what is now Routes 11, 58, and 23 from Winchester to Cumberland Gap (including the Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 • Daniel Boone Wilderness Trail – Route 58 from Moccasin Gap to Cumberland Gap), but also followed other "spur" migration routes such as the Carolina Road along Route 220 and the Fincastle Turnpike along Routes 42, 61, 19, 460, 71, and 72; and WHEREAS, These migration routes are now being developed as driving routes /trails to preserve, interpret and promote the history, heritage and culture of the early pioneer settlement and migration through Virginia, and the role that Virginia played in the migration of settlers through Virginia and to other states of our growing of the nation; and WHEREAS, The Wilderness Road organization has been formed as a recognized non- profit organization under the leadership and guidance of the Virginia Tourism Corporation, in — partnership with tourism representatives from 28 tourism localities and 12 state /federal partners, to develop and promote the driving route of the Wilderness Road: Virginia's Heritage Migration Route, and spurs known as The Carolina Road, and The Fincastle /Cumberland Gap Turnpike, connecting with the Daniel Boone Wilderness Trail, and individual community loops for each locality; and WHEREAS, The mission of the Wilderness Road organization is to develop a. new tourism product to increase economic growth, and tourism spending in the region. The purpose of the organization is to promote The Wilderness Road: Virginia's Heritage Migration Route from Winchester to Cumberland Gap in a way that preserves and interprets the heritage of the migration era from the 1700s to the mid 1800s, to increase tourism visitation and economic impact of tourism spending; and WHEREAS, The Commonwealth of Virginia has recognized the driving route as The Wilderness Road: Virginia's Heritage Migration Route, which shall not affect any other designation heretofore or hereafter applied to this route or any portions thereof, and WHEREAS, there are more than 2,700 miles of roads designated as Virginia Byways, to help attract visitors and support economic development through tourism, and the Virginia Department of Transportation (VDOT), the Virginia Tourism Corporation (VTC), the Virginia Department of Conservation and Recreation (DCR) and the Commonwealth Transportation Board (CTB), encourages local governments to nominate roads for Virginia Byway designation; and WHEREAS, the United States Secretary of Transportation recognizes certain roads (including multi- state) as All- American Roads or National Scenic Byways based on one or more archaeological, cultural, historic, natural, recreational and scenic qualities, with the Wilderness Road; Virginia's Heritage Migration Route (including the Daniel Boone Wilderness Trail), and applicable spurs known as The Carolina Road, and The Fincastle /Cumberland Gap Turnpike include each of these intrinsic qualities; and WHEREAS, The National Scenic Byway Program is part of the U.S. Department of Transportation, Federal Highway Administration, and the program is a grass -roots collaborative effort established to help recognize, preserve and enhance selected roads throughout the United States; and WHEREAS, since 1992, the National Scenic Byways Program has provided funding for almost 1500 state and nationally designated byway projects in 48 states. NOW, THEREFORE BE IT RESOLVED, that the Board of Supervisors of the County of Frederick, Virginia expresses its support to the Virginia Department of Transportation and the General Assembly of the Commonwealth of Virginia to provide Virginia Byway designation of The Wilderness Road: Virginia's Heritage Migration Route (including the Daniel Boone Wilderness Trail), and the Fincastle Turnpike and Carolina Road spur routes. BE IT FURTHER RESOLVED, that the Board of Supervisors of the County of Frederick, Virginia expresses its support to the U.S. Department of Transportation, Federal Highway Administration, and United Sates Secretary for National Byway Designation of The Wilderness Road: Virginia's Heritage Migration Route (including the Daniel Boone Wilderness Trail), and the spur Fincastle Turnpike and Carolina Road routes. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 X079 FINALLY, BE IT RESOLVED, that the Board of Supervisors of the County of Frederick, Virginia fully supports the efforts of The Wilderness Road organization to develop and promote The Wilderness Road: Virginia's Heritage Migration Route (including the Daniel Boone Wilderness Trail) and the spur Fincastle Turnpike and Carolina Road routes, as Virginia Byway(s) and National Scenic Byway(s). ADOPTED this 22" day of September, 2010. This item was approved under the consent agenda. RESOLUTION ( 4016 -10) RATIFYING FIRE MARSHAL'S ACTIONS RELATIVE TO THE EMERGENCY BAN ON OPEN AIR BURNING — APPROVED Upon a motion by Supervisor DeHaven, seconded by Supervisor Dove, the Board approved the resolution ratifying the Fire Marshal's actions relative to the emergency ban on open air burning. WHEREAS, Frederick County, Virginia has not received adequate rainfall for several months, this has resulted in drought conditions that create a serious risk of widespread and dangerous uncontrollable fire spread; and WHEREAS, with such extreme dry conditions, any escaped fire would have the potential to become a major wildfire very quickly; and WHEREAS, the Board of Supervisors of Frederick County have the authority to minimize the risk of fires that could threaten lives and property; and WHEREAS, a ban on all open air burning, both Commercial and Residential/Private is effective immediately beginning August 10, 2010, and to include without limitation, campfires, warming fires, brush piles, household trash, stumps, fields, and any other material capable of spreading fire; and WHEREAS, due to the above stated circumstances, the Frederick County Fire Marshal pursuant to Chapter 45,. Article II, Section 45 -10E of the Code of Frederick County, Virginia, implemented emergency measures and declared an emergency ban on open air burning; and WHEREAS, on August 11, 2010, the Board of Supervisors of Frederick County ratified the actions of the Frederick County Fire Marshal enacting an emergency ban on open air burning; and WHEREAS, on August 25, 2010 the Frederick County Fire Marshal repealed the ban on open air burning as adequate rainfall was anticipated; and WHEREAS, on September 3, 2010 the Frederick County Fire Marshal reinstituted the ban on open air burning as anticipated adequate rainfall was not received and drought conditions continued. NOW, THEREFORE, BE IT RESOLVED that Board of Supervisors hereby ratifies the actions of the Fire Marshal that an emergency ban on open air burning remains in effect and that the sole exceptions to this ban shall be the use of grills or stoves designed and used for preparing food and which contain fuel and fire within a metal or below grade container with a one quarter inch or smaller screen. Any person violating the County Issued burn ban shall be guilty of a Class 3 misdemeanor for each separate offense. BE IT FURTHER RESOLVED that this ban shall remain in effect until such time as conditions warrant the repeal of the same by the County Administrator. ADOPTED this 22 day of September, 2010. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 0 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 Absent COMMITTEE REPORTS FINANCE COMMITTEE REPORT The Finance Committee met in the First Floor Conference Room at 107 North Kent Street on Wednesday, September 15, 2010 at 8:00 a.m. All members were present. 1. The FCPS Executive Director of Finance requests a School Fund and General Fund supplemental appropriation in the amount of $69,909.40 This amount represents the remaining balance in the school operating fund the represents restricted funds. See attached memo, pg. 1. 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 Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Absent 2. The FCPS Executive Director of Finance requests a School Construction Fund and General Fund supplemental appropriation in the amount of $2,300,000 This amount represents remaining, unrestricted school operating funds and is requested to be appropriated for upcoming CIP projects. See attached memo, pg. 1. The committee recommends approval. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Fisher, the Board approved the above request. Supervisor Collins reported that he had received a number of phone calls about this $2.3 million from people who believe these are funds in excess of the budget and want to know why they cannot be put back into teachers' salaries. He concluded by saying there was a need to put out better information to the public and he requested the schools do that. There being no further discussion, 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 Absent Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 3. The FCPS Executive Director of Finance requests a School Fund supplemental appropriation in the amount of $518,690.24 This amount represents additional grant balances in federal' programs. See attached memo, pg. 2. 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: 4. The FCPS Executive Director of Finance requests a Special School Grant Fund supplemental appropriation in the amount of $999,547 This amount represents additional federal grant funds for which FCPS is fiscal agent. See attached memo, pg. 2. 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 Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Absent 4. The FCPS Executive Director of Finance requests a Special School Grant Fund supplemental appropriation in the amount of $999,547 This amount represents additional federal grant funds for which FCPS is fiscal agent. See attached memo, pg. 2. 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: 5. The Commissioner of the Revenue presents airplane tax rate comparatives for discussion. See attached memo, pg. 3. The committee recommends the reduction of the airplane tax rate to $0.01/$100 for calendar year 2011. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Fisher, the Board approved the above request. It was noted this would take place during the FY 2011 -2012 budget process and the rate would be changed as part of the Board's public hearing to set tax rates. There being no further discussion, 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 Absent 5. The Commissioner of the Revenue presents airplane tax rate comparatives for discussion. See attached memo, pg. 3. The committee recommends the reduction of the airplane tax rate to $0.01/$100 for calendar year 2011. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Fisher, the Board approved the above request. It was noted this would take place during the FY 2011 -2012 budget process and the rate would be changed as part of the Board's public hearing to set tax rates. There being no further discussion, the Board approved the above request by the following recorded vote: 6. The County Finance Director and School Executive Finance Director provide FY 2010 year end reports. Both will be available to present and /or discuss. See attached information pg. 4 -20 (County); pg. 21 -44 (Schools). Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 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 Absent 6. The County Finance Director and School Executive Finance Director provide FY 2010 year end reports. Both will be available to present and /or discuss. See attached information pg. 4 -20 (County); pg. 21 -44 (Schools). Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 Ni 7. The County Attorney provides as requested a copy of the contract template for the Commonwealth of Virginia Energy Performance Contract. Review of documents and execution of same, subject to appropriation, is being requested. See attached information pg. 45 -91. The committee recommends a General Fund supplemental appropriation in the amount of $345,477 to fund the project; an annual review of the project by the Public Works Committee with a recommendation on the continuation of the Measurement & Verification; and authorizes the County Administrator to execute the contract upon final review by the County Attorney. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Fisher, the Board I I _ 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 Absent ** * Information Only * ** The Finance Director provides a Fund 10 Transfer report for FYI 1. See attached, pg. 92. 1. The County Finance Director provides a report on FY 2010 outstanding encumbrances which were carried forward to FY 2011. See attached, pg. 93 -94. 2. The School Executive Director of Finance provides information on FY 2010 outstanding encumbrances and carry - forward construction balances. See attached, pg. 95. 3. The Metropolitan Washington Ear, Inc. sends a letter of appreciation for the County's contribution. See attached letter, pg. 96. 4. The Northern Virginia 4 -H Education and Conference Center sends a letter of appreciation for the County's contribution. See attached letter, pg. 97. 5. The Government Finance Officers Association has awarded Frederick County a Certificate of Achievement for Excellence in Financial Reporting for the Comprehensive Annual Financial Report (CAFR) ending June 30, 2009. See attached, pg. 98 -99. PUBLIC HEARINGS PUBLIC HEARING - OUTDO FESTIVAL PERMIT REQUEST OF CEDAR CREEK BATTLEFIELD FOUNDATION — 146 ANNIVERSARY REENACTMENT OF THE BATTLE OF CEDAR CREEK. PURSUANT TO THE FREDERICK COUNTY CODE, CHAPTER 86, FESTIVALS; SECTION 86 -3, PERMIT REQUIRED; APPLICATION; ISSUANCE OR DENIAL; FEE; FOR AN OUTDOOR FESTIVAL PERMIT. FESTIVAL TO BE HELD ON SATURDAY AND SUNDAY, OCTOBER 16 AND OCTOBER 17, 2010, FROM 9:30 A.M. — 5:30 P.M. EACH DAY, TO BE HELD ON THE GROUNDS OF CEDAR CREEK BATTLEFIELD, 8437 VALLEY PIKE, MIDDLETOWN, VIRGINIA 22645, PROPERTY OWNED BY CEDAR CREEK BATTLEFIELD FOUNDATION. APPROVED Administrator Riley advised this was the 146 Anniversary Reenactment of the Battle of Cedar Creek. The event will be held October 16 & 17, 2010 from 9:30 a.m. to 5:30 p.m. each day on the property of the Cedar Creek Battlefield. He concluded by saying the application has Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 1 been reviewed by the county attorney. Tim Stowe, President of the Cedar Creek Battlefield, advised this was the 21" reenactment and he would be glad to answer any questions the Board might have. Chairman Shickle convened the public hearing. There were no public comments. Chairman Shickle closed the public hearing. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the application for an outdoor festival permit 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 Absent PUBLIC HEARING - CONCURRENT RESOLUTION ( #020 -10) OF THE COMMON COUNCIL OF THE CITY OF WINCHESTER AND THE BOARD OF SUPERVISORS TO AMEND THE ARTICLES OF INCORPORATION OF THE FREDERICK- WINCHESTER SERVICE AUTHORITY. THE AMENDMENT TO THE ARTICLES OF INCORPORATION OF THE FREDERICK- WINCHESTER SERVICE AUTHORITY WOULD DELETE THE FOLLOWING SENTENCE IN PARAGRAPH (F) OF THE AMENDED ARTICLES OF INCORPORATION DATED APRIL 13,1995: "EACH MEMBER SHALL SERVE WITHOUT COMPENSATION EXCEPT THAT THE MEMBER APPOINTED BY CONCURRENT ACTION MAY BE COMPENSATED NOT MORE THAN ONE THOUSAND EIGHT HUNDRED DOLLARS ($1,800.00) PER ANNUM." THE AMENDMENT TO THE ARTICLES OF INCORPORATION OF THE FREDERICK- WINCHESTER SERVICE AUTHORITY WOULD FURTHER SUBSTITUTE THE FOLLOWING SENTENCE IN THE PLACE AND STEAD OF THE DELETED SENTENCE IN PARAGRAPH (F) OF THE AMENDED ARTICLES OF INCORPORATION DATED APRIL 13,1995: "EACH MEMBER SHALL SERVE WITHOUT COMPENSATION, EXCEPT THAT THE CHAIRMAN MAY BE COMPENSATED AS DETERMINED BY RESOLUTION OF THE GOVERNING BODY OR BODIES WHICH ARE MEMBERS OF THE AUTHORITY." - APPROVED Administrator Riley advised this was a proposed amendment to the Frederick - Winchester Service Authority's Articles of Incorporation. He advised that currently the member appointed by concurrent action may be compensated up to $1,800.00 per year. The Authority is proposing to change the articles to provide that the Chairman will receive compensation in an amount as set by resolution of the by resolution of the governing body or bodies which are members of the Authority. He went on to say this proposal appears to be consistent with the provisions of Section 15.2- 5113(C) of the Code of Virginia (1950, as amended). By this amendment, the Authority it trying to avoid amending its Articles of Incorporation each time the Chairman's Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 �W • compensation is changed. Chairman Shickle asked if the Chairman's compensation would have to be approved by the governing bodies. Mr. Williams responded yes, all governing bodies would have to concur. Chairman Shickle convened the public hearing. There were no citizen comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor Fisher, seconded by Supervisor Dove, the Board approved the Concurrent Resolution of the Common Council of the City of Winchester and the Board of Supervisors to Amend the Articles of Incorporation of the Frederick - Winchester Service Authority. WHEREAS, by Concurrent Resolution of the City of Winchester (the "City ") and the Board of Supervisors of Frederick County (the "County ") and a Certificate of Incorporation issued by the State Corporation Commission pursuant to the Virginia Water and Waste Authorities Act (the "Act'), the Frederick - Winchester Service Authority (the "Authority ") was incorporated as a public body politic and corporate in 1974; and, WHEREAS, by a Concurrent Resolution of the Common Council of the City and the Board of Supervisors of the County and a Certificate of Articles of Amendment issued by the Virginia State Corporation Commission, the Articles of Incorporation of the Authority were amended in 1983, 1985, 1995, and 2008; and, WHEREAS, the City and the County desire to amend the amended and restated Articles of Incorporation dated August 26, 1987, as amended by Articles of Amendment dated April 13, 1985 as set forth hereinafter. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of Winchester, Virginia and the Board of Supervisors of Frederick County, Virginia, in separate meetings assembled, that the Articles of Incorporation of the Frederick - Winchester Service Authority be amended in the following manner: The following sentence in Paragraph (f) of the Amended Articles of Incorporation dated April 13, 1995 is deleted: "Each member shall serve without compensation, except that the member appointed by concurrent action may be compensated not more than One Thousand Eight Hundred Dollars (1,800.00) per annum." The following sentence is substituted in the place and stead of the sentence deleted above: "Each member shall serve without compensation, except that the Chairman may be compensated as determined by resolution of the governing body or bodies which are members of the Authority." This amendment does not effect a restatement of the Articles of Incorporation. NOW, THEREFORE, BE IT RESOLVED that the Articles of Incorporation, as amended in 1983, 1985, 1987, 1995, and 2008, shall in all other respects remain unchanged. These Articles of Amendment were approved by a Concurrent Resolution of the Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 ME Common Council of the City of Winchester, Virginia, and the Board of Supervisors of Frederick County, Virginia in separate meetings assembled, adopted by the City of , 2010, following a public hearing held , 2010, and adopted by the County on , 2010, following a public hearing held on .2010. IN WITNESS WHEREOF, the Common Council of the City of Winchester, Virginia, and the Board of Supervisors of Frederick County, Virginia, have caused these Articles of Amendment to be executed this day of , 2010. CITY OF WINCHESTER, VIRGINIA Jeffrey Buettner, President of Common Council (SEAL) Attest: By: Kari Vandiest, Clerk of the Common Council FREDERICK COUNTY, VIRGINIA Richard C. Shickle, Chairman Board of Supervisors (SEAL) Attest: By: John R. Riley, Jr., Clerk Board of Supervisors 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 Absent PLANNING COMMISSION BUSINESS PUBLIC HEARINGS PUBLIC HEARING - CONDITIONAL U PERMIT #06 -10 FOR DEBRA BOUGHEAR, FOR A COTTAGE OCCUPATION — HAIR SALON AND AN OFF - PREMISE SIGN. THE PROPERTY IS LOCATED AT 276 BACK MOUNTAIN ROAD (ROUTE 614), AND IS IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBERS 40 -A -111 AND 40 -A -112 IN THE BACK CREEK MAGISTERIAL DISTRICT. - APPROVED Zoning Inspector Dana Johnston appeared before the Board regarding this item. He advised this was a request for a Conditional Use Permit for a hair salon. The property is located at 376 Back Mountain Road (Route 614) in the Back Creek District. The proposed use will take place in the existing house located on 64 acres. Zoning Inspector Johnston noted there were no significant impacts on adjoining property. He concluded by saying the Planning Commission Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22110 recommended approval of the application with the following conditions: 1. All review agency comments and requirements shall be complied with at all times. 2. Hours of operation shall be permitted from 9:00 a.m. to 5:00 p.m., Monday through Friday. 3. Employees shall be limited to those residing on the property. No other employees are permitted. 4. House may not have more than four occupants /dwellers while hair salon remains in business. 5. Hair salon is limited to five customers per day. 6. Only one sign shall be allowed. This off premise sign shall be located at the site's southern entrance onto Back Mountain Road. The sign shall not exceed five feet in height; the sign face shall not exceed four square feet in area. 7. Any expansion or change of use will require a new Conditional Use permit. Chairman Shickle asked where condition 2 came from. Zoning Inspector Johnston responded the applicant wanted that condition. Supervisor Collins asked about the requirement that only four people can live in the house while the hair salon remains in business. Zoning Inspector Johnston responded the requirement came from the Health Department. Supervisor Dove asked about condition number 5, which limited the number of customers to five per day. Zoning Inspector Johnston responded the requirement came from the Health Department because of concerns about the impact on the drainfield. Mark Broughear spoke on behalf of the applicant. He confirmed condition number 5 came from the Health Department and had to do with the drainfield and the chemicals used. Chairman Shickle convened the public hearing. There were no public comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor DeHaven, seconded by Supervisor Dove, the Board approved Conditional Use Permit #06 -10 with the elimination of condition #2. 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 Absent Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 M PUBLIC HEARING - CONDITIONAL USE PERMIT #07 -10 FOR GLOBAL TOWER ASSETS LLC, PRESENTED BY LYNN KOERNER, CONTRACTOR, FOR A 250 FOOT SELF SUPPORT TELECOMMUNICATIONS TOWER. THIS PROPERTY IS LOCATED AT THE INTERSECTION OF BRILL ROAD (ROUTE 603) AND HIGHWAY 55, AND IS IDENTIFIED WITH PROPER IDENTIFICATION NUMBER 69 -A -7F IN THE BACK CREEK MAGISTERIAL DISTRICT. - APPROVED Zoning and Subdivision Administrator Mark Cheran appeared before the Board regarding this item. He advised this was a request for a conditional use permit for a 250 foot self - supported lattice type telecommunications facility. The property is located in the Back Creek District and is zoned Rural Areas. The Planning Commission waived the monopole requirement and recommended approval of the Conditional Use permit with the following conditions: 1. All review agency comments and requirements shall be complied with at all times. 2. The tower shall be available for collocating personal wireless services providers. 3. A minor site plan shall be approved by Frederick County. 4. The tower shall be removed by the applicant or property owner within twelve (12) months of abandonment of operation. 5. In the event a telecommunications tower is not erected within twelve (12) months of the approval of this Conditional Use Permit, the CUP will be deemed invalid. 6. Any expansion or modification of this use will require a new Conditional Use Permit. Lynn Koerner, Global Tower Assets, LLC, appeared before the Board on behalf of the applicant. He noted the proposed tower was designed to provide coverage along Route 55. He went on to say letters were sent to adjoining property owners, balloons were floated to show the height, and they received feedback from one property owner. He concluded by asking the Board to approve this application. Chairman Shickle convened the public hearing. There were no public comments. Chairman Shickle closed the public hearing. Chairman Shickle advised that Supervisor Lofton informed him that he had received no concerns relative to this proposal. Upon a motion by Supervisor Dove, seconded by Supervisor DeHaven, the Board approved Conditional Use Permit 407 -10. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 Charles S. DeHaven, Jr. Aye Gary W. Dove Aye Gene E. Fisher Aye Gary A. Lofton Absent PUBLIC HEARING - 2010 NORTHEAST LAND USE PLAN (NELUP) UPDATE — AN AMENDMENT TO THE 2007 COMPREHENSIVE POLICY PLAN CHAPTER 6, LAND USE, TO UPDATE THE NORTHEAST FREDERICK LAND USE PLAN, (NELUP). THE AMENDMENT ADJUSTS THE FUTURE LAND USE, TRANSPORTATION, AND COMMUNITY FACILITY ELEMENTS OF THE PLAN AND, ACCORDINGLY, UPDATES THE TEXT OF THE LAND USE PLAN. IN GENERAL, THE PLAN CONTINUES TO PROMOTE THE ECONOMIC DEVELOPMENT OPPORTUNITIES OF THE STUDY AREA, RECOGNIZES THE DEVELOPMENTALLY SENSITITVE AREAS, ADDRESSES COMMUNITY FACILITY NEEDS, AND SEEKS TO IMPLEMENT SIGNIFICANT TRANSPORTATION IMPROVEMENTS IN SUPPORT OF THE PLAN. NO MODIFICIATIONS OF THE URBAN DEVELOPMENT AREA OR THE SEWER AND WATER SERVICE AREA (SWSA) IS PROPOSED. THE AREA IS GENERALLY LOCATED NORTH OF THE CITY OF WINCHESTER TO THE WEST VIRGINIA STATE LINE, GENERALLY EAST AND WEST OF INTERSTATE 81, AND CLARKE COUNTY TO THE EAST. THIS IS MOSTLY WITHIN THE STONEWALL MAGISTERIAL DISTRICT. — (RESOLUTION #017 -10) - APPROVED Deputy Director of Planning & Development Michael Ruddy appeared before the Board regarding this item. He advised this was the 2010 update to the Frederick County Northeast Land Use Plan. This update consists of four components: land use plan, transportation (network and lane design), and community facilities and natural resources. He went on to say the rural areas are shown in white on the map. There are no new residential uses proposed. The rural community centers remain the same. Industrial areas increased slightly. He concluded by saying the Comprehensive Plans and Programs Committee and the Planning Commission recommended approval. Chairman Shickle stated he was disappointed there was no reference to the Transportation Committee and asked if the network and lane design went through them. Supervisor DeHaven responded he could not say for sure, but the committee did participate in the discussions, design of the transportation network, and used MPO funds to model and refine the plan with the data collected. Chairman Shickle asked Supervisor DeHaven if he was comfortable with this, as Chairman of the Transportation Committee. Supervisor DeHaven responded yes. Chairman Shickle asked about the terms shared access frontage and critical access management areas. Deputy Director Ruddy responded that was part of the transportation effort and were Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 components of the Land Use Plan and the Transportation Plan. They are areas to share access points. Chairman Shickle asked if the road lane designation was part of the modeling exercise. Supervisor DeHaven responded yes. Chairman Shickle asked if a developer would have to build the road to specifications. Supervisor DeHaven responded they would not have to build, but there would be an expectation of right -of -way dedication. Chairman Shickle convened the public hearing. Ken Smith, Open Door Baptist Church, asked the Board to approve the update to the Northeast Land Use Plan so the church could continue to develop its property. Joshua Hummer, Attorney with Lawson & Silek, appeared before the Board representing O -N Minerals. He submitted the following letter: "Dear Mr. Chairman and Members of the Board of Supervisors: This is to follow -up on comments on the proposed Northeast Land Use Plan. In particular, we are focusing on the land which is owned by O -N Minerals (Chemstone) Company (`O -N Minerals ) and the designations for industrial and other uses on that property as opposed to an EM use. We raise this issue because the property is owned by an entity that is in the business of operating quarries and not industrial facilities and also because it is a logical area for quarry mining. We would therefore, ask that the lands owned by O -N Minerals and/or the lands that are adjacent to the O -N Minerals property be designated as EM on the Land Use Plan or, if the County prefers, to make a notation in the record that these areas may in fact be rezoned to EM in the future. Thank you for your attention to these matters. Very truly yours, /s/ Thomas M. Lawson Thomas Moore Lawson " There being no further public comment, Chairman Shickle closed the public hearing. Deputy Director Ruddy advised the representatives for O -N Minerals had expressed similar comments at the Planning Commission meeting and requested the EM designation be carried to Route 11. He went on to say if the Board is supportive of this request the map could be modified to reflect that change. He advised there was a need to buffer Route 11 from the EM use. Chairman Shickle asked how the Board would entertain this proposed change. Supervisor DeHaven responded that, normally, the property owner would submit a rezoning application along with an amendment to the comprehensive plan. The Board would then evaluate the request at that time. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 M Upon a motion by Supervisor DeHaven, seconded by Supervisor Fisher, the Board approved the amendment to The Frederick County 2007 Comprehensive Policy Plan; Chapter 6, Land Use. WHEREAS, an amendment to The Frederick County 2007 Comprehensive Policy Plan, Chapter 6 Land Use, to update the Northeast Frederick Land Use Plan (NELUP), was considered. This amendment was reviewed by the Comprehensive Plans and Programs Subcommittee (CPPS), and the Planning Commission during their regularly scheduled meetings; and WHEREAS, the Comprehensive Plans and Programs Subcommittee (CPPS) recommended approval of this amendment on August 9, 2010; and WHEREAS, the Planning Commission held a public hearing on this Comprehensive Policy Plan amendment and recommended approval of this amendment on September 1, 2010; and WHEREAS, the Board of Supervisors held a public hearing on this Comprehensive Policy Plan Amendment on September 22, 2010; and WHEREAS, the Frederick County Board of Supervisors finds the adoption of this Comprehensive Policy Plan amendment to be in the best interest of the public health, safety, welfare, and in good planning practice. NOW, THEREFORE, BE IT ORDAINED by the Frederick County Board of Supervisors that the Frederick County 2007 Comprehensive Policy Plan, Chapter 6, Land Use, is amended to adjust the future land use, transportation, and community facility elements of the Plan and accordingly, update the text of the land use plan. In general, the plan continues to promote the economic development opportunities of the study area, recognizes the Developmentally Sensitive Areas, addresses community facility needs, and seeks to implement significant transportation improvements in support of the plan. No modification of the Urban Development Area or the Sewer and Water Service Area (SWSA) is proposed. The area is generally located north of the City of Winchester to the West Virginia State Line, generally east and west of Interstate 81, and Clarke County to the East. This is mostly within the Stonewall Magisterial District (maps attached). This amendment shall be in effect on the day of adoption. Passed this 22 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 Absent OTHER PLANNING ITEMS DISCUSSION — ORDINANCE AMENDMENT FOR TELECOMMUNICATIONS FACILITIES — (RESOLUTION #018 -10) - SENT FORWARD FOR PUBLIC NF. A RTNf_ Director of Planning and Development Eric Lawrence appeared before the Board regarding this item. He advised that staff had been directed to draft an amendment to the Zoning Ordinance to revise the waiver provision for lattice style communication facilities. Currently, Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 091. the Planning Commission is provided with an opportunity to waive the monopole -type construction requirement when the tower is located outside the Urban Development Area and is not adjacent to properties that are identified historic sites. The proposed amendment would allow the Board to waive the monopole requirement and would remove the Urban Development Area provision and would allow the Board, with a recommendation from the Planning Commission, to waive the monopole requirement when existing or planned residential areas will not be impacted and when the site is not adjacent to identified historic resources. The Planning Commission recommended leaving the ordinance as currently written, which would allow the Planning Commission to waive the monopole requirement when towers are located outside the Urban Development Area and are not adjacent to properties that are identified historic sites. Supervisor DeHaven expressed a preference to differentiate between guide towers and self - supporting lattice. Supervisor Fisher suggested allowing the applicants to bring in an application and the Board could evaluate it on its merits. He went on to note that more land was needed for guide wire towers. Supervisor DeHaven stated that he appreciated the Planning Commission and Development Review and Regulations Committee positions, but he preferred going ahead and advertising this ordinance amendment for public hearing to put the decision back into the hands of the Board of Supervisors. Upon a motion by Supervisor DeHaven, seconded by Supervisor Collins, the Board approved the resolution directing the Planning Commission to hold a public hearing regarding Chapter 165, Zoning, Article II Supplementary Use Regulations, Parking, Buffers, and Regulations for Specific Uses; Part 204 — Additional Regulations for Specific Uses; 165- 204.19 Telecommunication Facilities, Commercial. WHEREAS, the Frederick County Planning Department has been directed to prepare modifications to Chapter 165 Zoning, to revise the waiver provision for lattice style telecommunication facilities. WHEREAS, The Development Review and Regulations Committee (DRRC) recommended the ordinance amendment be forwarded to the Planning Commission for discussion on August 26, 2010; and WHEREAS, the Planning Commission discussed the draft ordinance on September 15, 2010 and recommended leaving the ordinance as currently written; 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 Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 092 revise the waiver provision for lattice style telecommunication facilities. 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 revise the waiver provision for lattice style telecommunication facilities. Passed this 22 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 Absent Chairman Shickle asked that the Public Works Committee investigate costs, etc. regarding the various types of towers and update the Board. ROAD RESOLUTION ( #019 -10) — APPLE GLEN ESTATES — APPROVED UNDER CONSENT AGENDA 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 a comprehensive stormwater detention which applies to this request for addition; and WHEREAS, this Board assumes total responsibility for all cost and expense incurred to correct faulty workmanship or materials identified by VDOT and associated with the construction of one or more of the roads and/or related drainage facilities described on the attached AM -4.3 form for a period of one calendar year after the date of the legal acceptance of the referenced roads into the secondary system of state highways. 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 resolution shall be in effect on the date of adoption. Passed this 22 day of September, 2010. This item was approved under the consent agenda. BOARD LIAISON REPORTS There were no citizen comments. Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10 0 1 CITIZEN COMMENTS Sortis Pappas, Gainesboro District, spoke regarding the Allegheny Power's re- filing of the application to construct the Potomac Appalachian Transmission Highline (PATH) through parts of Frederick County. He expressed a need to stop the construction of this line and asked if the Board could put height limitations on electric towers. He concluded by asking the Board if they had received any feedback from Governor McDonnell. BOARD OF SUPERVISORS COMMENTS Vice - Chairman Ewing announced the Board's fourth community forum will take place on Monday, October 11, 2010 from 7:00 -9:00 p.m. in the Community Room at Sherando High School. Chairman Shickle directed staff to send information regarding the County's position and actions taken to date regarding PATH to the Governor's office. 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. (8:37 P.M.) Richard C. Shickle n k. Ri ey, Jr. Chairman, Board of Supervisors Clerk, Board of Supervisors Minutes Prepared By: Jay El T' bs Deputy Clerk, Board of Supervisors Minute Book Number 36 Board of Supervisors Regular Meeting of 09/22/10