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HomeMy WebLinkAboutSeptember 28 2011 Regular Meeting Minutes070 A Regular Meeting of the Frederick County Board of Supervisors was held on Wednesday, September 28, 2011, 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; Charles S. DeHaven, Jr.; Gene E. Fisher; Gary A. Lofton; and Ross P. Spicer. ABSENT Christopher E. Collins (Arrived 7:20 p.m.) CALL TO ORDER Chairman Shickle called the meeting to order. INVOCATION Supervisor Fisher 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 that he had no changes to the agenda. Upon a motion by Supervisor Lofton, seconded by Supervisor Spicer, the Board approved the agenda by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Absent Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye CONSENT AGENDA - APPROVED Administrator Riley offered the following item for the Board's consideration under the consent agenda: - Resolution in Memoriam of Robert Thomas "Tom" Malcolm, Jr. — Tab B. Upon a motion by Supervisor DeHaven, seconded by Supervisor Fisher, the Board approved the consent agenda by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Absent Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 071 Ross P. Spicer Aye CITIZEN COMMENTS Mark Berg, Back Creek District, spoke regarding the proposed amendments to the Landscape Ordinance. He stated the proposed amendment was supposed to make the ordinance easier to understand and implement; however, he cited ordinance language and the various requirements within the ordinance and advised he did not see how this makes it easier to understand and implement. He asked who decides about the diverse mixture of plant species required in the ordinance. He went on to say there were plenty of questions to be raised and he would appreciate it if the board took a further look at the ordinance. John Good, Stonewall District, spoke regarding the proposed landscape ordinance. He noted the landscaping requirements would apply to the expansion of existing site plans and he believed it was unnecessary. He asked what the various terms meant. He went on to say this ordinance was legislating beauty that was "in the eye of the beholder ". He suggested taking the entire landscape ordinance off of the books. He stated that paying tax dollars to have staff check on dead or dying vegetation was not a good use of resources. He concluded by saying this ordinance points out the difficulties of legislating beauty. Dody Stottlemyer, Shawnee District, spoke regarding the landscape ordinance. She seconded the comments made by the previous speakers and noted there were problems within the ordinance that needed to be addressed. She noted she had difficulty copying the ordinance off of the website. She concluded by saying that legislating to personal homeowners was going too far and the regulations should be taken off. (Supervisor Collins arrived.) BOARD OF SUPERVISORS COMMENTS There were no Board of Supervisors' comments. MINUTES - APPROVED Upon a motion by Supervisor DeHaven, seconded by Vice- Chairman Ewing, the Board approved the minutes from the September 14, 2011 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 Gene E. Fisher Aye Gary A. Lofton Aye Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 072 Ross P. Spicer Aye COUNTY OFFICIALS RESOLUTION 0016 -11) IN MEMORIAM OF ROBERT THOMAS "TOM" MALCOLM, JR. - APPROVED UNDER CONSENT AGENDA WHEREAS, Robert Thomas "Tom" Malcolm, Jr. served the citizens of Frederick County, Virginia, for six (6) years, from January 1976 through December 1981, as a member of the Board of Supervisors; and WHEREAS, Mr. Malcolm was an employee of Frederick County Public Schools for 33 years and served as superintendent of Frederick County Public Schools from 1989 to 1998; and WHEREAS, Mr. Malcolm served the citizens of Frederick County with dignity, dedication, and wisdom; and WHEREAS, Mr. Malcolm will be long remembered, by those who served with him and the employees of Frederick County Public Schools that worked for him, as dedicated, able, and visionary in all facets of his professional and public life. NOW, THEREFORE BE IT RESOLVED, that the Frederick County Board of Supervisors extends it deepest sympathy to the family of Robert Thomas "Tom" Malcolm, Jr., a dedicated family man and a friend to all who knew him. 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 citizen legislator and public servant and that a true copy of this resolution be presented to his wife and family. ADOPTED this 28th day of September, 2011. COMMITTEE APPOINTMENTS APPOINTMENT OF SUSAN W. MARSH AS STONEWALL DISTRICT REPRESENTATIVE TO THE SOCIAL SERVICES BOARD - APPROVED Upon a motion by Supervisor DeHaven, seconded by Supervisor Fisher, the Board appointed Susan W. Marsh to serve as Stonewall District representative to the Social Services Board. This is a four year appointment, said term to expire September 28, 2015. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye JAMES I. BRUMBACK NOMINATED FOR REAPPOINTMENT TO THE BOARD OF EQUALIZATION - APPROVED Upon a motion by Supervisor Lofton, seconded by Vice - Chairman Ewing, the Board nominated James I. Brumback for reappointment to the Board of Equalization. This is a three year appointment, term to expire December 31, 2014. Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 073' 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye ERIC F. LOWMAN NOMINATED FOR REAPPOINTMENT AS RED BUD DISTRICT REPRESENTATIVE TO THE BOARD OF ZONING APPEALS - APPROVED Upon a motion by Supervisor Collins, seconded by Supervisor DeHaven, the Board nominated Eric F. Lowman for reappointment as Red Bud District representative to the Board of Zoning Appeals. This is a five year appointment, said term to expire December 31, 2016. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye JAMES W. GIVENS NOMINATED FOR REAPPOINTEMENT AS BACK CREEK DISTRICT REPRESENTATIVE TO THE BOARD OF ZONING APPEALS - APPROVED Upon a motion by Supervisor Lofton, seconded by Supervisor Spicer, the Board nominated James W. Givens for reappointment as Back Creek District representative to the Board of Zoning Appeals. This is a five year appointment, said term to expire December 31, 2016. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye ROBERT W. WELLS NOMINATED FOR REAPPOINTMENT AS MEMBER - AT -LARGE TO THE BOARD OF ZONING APPEALS - APPROVED Upon a motion by Supervisor Lofton, seconded by Supervisor Fisher, the Board nominated Robert W. Wells for reappointment as Member -At -Large to the Board of Zoning Appeals. This is a five year appointment, said term to expire December 31, 2016. The above motion was approved by the following recorded vote: Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 0 Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye REQUEST FROM THE COMMISSIONER OF THE REVENUE FOR REFUND - APPROVED Administrator Riley advised this was a request from the Commissioner of the Revenue to authorize the Treasurer to refund Ryder Truck Rental LT the amount of $13,949.28, for the normal proration of leased commercial vehicles for 2009, 2010, and 2011. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye MEMORANDUM AND RESOLUTION ( #017 -11) RE: STEPHENS CITY LITIGATION - APPROVED Administrator Riley advised that on September 13, 2011, the Stephens City Town Council adopted revised proffer statements for the two rezonings that are the subject of the County's litigation against the Town. The provisions for the proffer statements serve to mitigate fully the impact of the rezonings and, therefore, the objective of the County's litigation is met. Staff was seeking Board action on a resolution authorizing counsel to perform such actions necessary for an appropriate dismissal of the litigation as settled. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the Resolution Approving Settlement of Litigation with the Town of Stephens City. WHEREAS, there is currently pending in the Circuit Court of the County of Frederick, Virginia, before a Special Three -Judge Court, Consolidated Case No. CL09 -622, a Declaratory Judgment Action to enforce a Voluntary Settlement Agreement dated April 26, 2005 (the "Voluntary Settlement Agreement "), between the Town of Stephens City (the "Town ") and the County of Frederick (the "County "), growing out of the Town's rezoning of two tracts of land, the Russell- Stephens City Property and the Davis Property, in the Phase I Annexation Area provided for in the Voluntary Settlement Agreement; and WHEREAS, on September 13, 2011, the Town Council of the Town of Stephens City approved an Amended Proffer Statement, dated September 8, 2011, for the Russell- Stephens City Property (the "Amended Russell Proffer Statement ") and an Amended Proffer Statement, date September 6, 2011, for the Davis Property (the "Amended Davis Proffer Statement "), the Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 075 provisions of both which proffer statements fully mitigate the impacts of the rezonings of the Russell- Stephens City Property and the Davis Property; and WHEREAS, such action by the Town Council of the Town of Stephens City resolves the issues at dispute in the Declaratory Judgment Action, Consolidated Case No. CL09 -622; NOW, THEREFORE, BE IT RESOLVED by the Frederick County Board of Supervisors that it does hereby approve and accept the action of the Town in adopting the Amended Russell Proffer Statement and the Amended Davis Proffer Statement; and BE IT FURTHER RESOLVED that the County Attorney and Special Counsel shall perform all actions necessary to see that Consolidated Case No. CL09 -622 is, on appropriate terms, dismissed as settled between the Town and County. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye COMMITTEE REPORTS FINANCE COMMITTEE REPORT - APPROVED The Finance Committee met in the First Floor Conference Room at 107 North Kent Street on Wednesday, September 21, 2011 at 8:00 a.m. All members were present. Items 2 and 3 were approved on consent agenda. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the consent agenda by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye 1. The AARP Tax Aide Program requests a General Fund supplemental appropriation in the amount of $2,100 in order to continue the program in the 2012 tax season. Local funds required. See letter, p. 1. The committee recommends approval; however, additional information is requested from AARP Tax Aide to include total budget and citizens served information. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above request. Supervisor Lofton expressed concern about our contribution relative to those of other localities and would be voting no. The above motion was approved by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 0761 Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Nay Ross P. Spicer Aye 2. The Sheriff requests a General Fund supplemental appropriation in the amount of $275 This amount represents DARE donations. No local funds required. See attached memo, p. 2. — Approved Under Consent Agenda. I The Sheriff requests a General Fund supplemental appropriation in the amount of $11,599.70 This amount represents (2) auto insurance claim reimbursements. No local funds required. See attached memos, p. 3 -4. — Approved Under Consent Agenda. 4. The Zoning Administrator requests a General Fund and a Development Projects Fund supplemental appropriations in the amount of $1,896,55 This amount represents funds needed to complete the Whitacre Farms subdivision road project. See attached memo, p. 5 -8. The committee recommends approval. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Spicer, the Board approved the above request. Supervisor Fisher asked if this amount was in addition to the $5,653 carry - forward amount. Administrator Riley responded yes. Supervisor Lofton stated there were other projects out there that are not funded to the extent this one was. He could not support setting a precedent of using General Fund dollars for these projects. 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 Gene E. Fisher Aye Gary A. Lofton Nay Ross P. Spicer Aye 5. The Assistant County Administrator provides an LHSD Tax Collection Status Report. See attached information, p. 9 -10. No action required. 6. The Finance Director makes the FY 2011 Year End Presentation. See attached information, p. 11 -26. No action required. 7. The School Finance Director provides the Year End Financial Reports for FY 2011 and is available for discussion. See attached information, p. 27 -52. No action required. 8. The School Finance Director requests a General Fund and School Operating Fund supplemental appropriations in the amount of $8,631.40 This amount represents the balance in the eRate telecommunications program. See attached memo, p. 53. 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: Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 077 Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye 9. The School Finance Director requests a School Operating Fund supplemental appropriation in the amount of $1,130,419.07 This amount represents un- budgeted portion of the remaining grant balances for federal programs. See attached memo, p. 53. The committee recommends approval. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye 10. The School Finance Director requests a General Fund and School Capital Fund supplemental appropriations in the amount of $297,115.55 This amount represents unspent FYI School Operating Funds to be used for maintenance and repair projects. These funds were returned to the General Fund as unreserved fund balance at year end. Local funds are required. See attached memo, p. 53. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye 11. The School Finance Director requests a Special Grants Fund (new fund) supplemental appropriation in the amount of $1,432,735.68 This amount represents remaining Building Bridges grant and the Regional Adult Education Program funds. See attached memo, p. 54. The committee recommends approval. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Fisher, the Board approved the above request by the following recorded vote: 12. The School Finance Director requests a General Fund and Special Grants Fund supplemental appropriation in the amount of $41,449.19 This amount represents FYI Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye 12. The School Finance Director requests a General Fund and Special Grants Fund supplemental appropriation in the amount of $41,449.19 This amount represents FYI Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 DO Regional Adult Education Program funds that were received in the School Operating Fund. See attached memo, p. 54. The committee recommends approval. — Approved. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the above request by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye 13. The Stephens City Fire & Rescue Company President requests a General Fund supplemental appropriation in the amount of $58,809.17 This amount represents available proffer funds to be used for repairs and a building addition at the Stephens City fire station. See attached information, p. 55 -59. The committee recommends approval. — Approved. Upon a motion by Vice- Chairman Ewing, seconded by Supervisor DeHaven, the Board approved the above request. Supervisor Fisher asked if the use of proffers for these repairs was appropriate. Administrator Riley responded it was. He noted the repairs and upgrades would be to the living quarters for the 24/7 staff. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye 14. The IT Director will give the committee a tour of the server room. No action required. ** *Information Only * ** 1. The Northern Virginia 4 -H Educational & Conference Center sends a thank you letter for FYI funding. See attached letter, p. 60. 2. The Bluemont Concert Series sends a letter of thanks for the use of the Old Courthouse lawn for their summer series. See attached letter, p. 61. 3. The Assistant County Administrator provides a report on the use of funds for SVBF. See attached information, p. 62 -65. 66 -67. 4. The Finance Director provides a Fund 10 Transfer report for FY12. See attached p. PUBLIC HEARING PUBLIC HEARING - OUTDOOR FESTIVAL PERMIT REQUEST OF CEDAR CREEK BATTLEFIELD FOUNDATION — REENACTMENT OF THE BATTLE OF CEDAR CREEK. PURSUANT TO THE FREDERICK COUNTY CODE, Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 079 CHAPTER 86, FESTIVALS; SECTION 86 -3, PERMIT REQUIRED; APPLICATION; ISSUANCE OR DENIAL; FEE; FOR AN OUTDOOR FESTIVAL PERMIT. FESTIVAL TO BE HELD ON SATURDAY, OCTOBER 15, 2011, FROM 10:00 A.M. — 5:30 P.M. AND SUNDAY, OCTOBER 16, 2011, FROM 10:00 A.M. TO 4:00 P.M., 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 a request from the Cedar Creek Battlefield Foundation for the reenactment of the battle of Cedar Creek. The event will take place October 15 & 16, 2011 from 10:00 a.m. - 5:30 p.m. on Saturday and 10:00 a.m. — 4:00 p.m. on Sunday, on the grounds of Cedar Creek Battlefield. Chairman Shickle convened the public hearing. Tim Stowe, President of Cedar Creek Battlefield Foundation, stated this was the 20 year for this event. He concluded by saying he appreciated the board's past support of this event. There being no further public comments, Chairman Shickle closed the public hearing. Upon a motion by Supervisor Lofton, seconded by Supervisor Spicer, the Board approved the outdoor festival permit request of Cedar Creek Battlefield Foundation. The above motion was approved by the following recorded vote: PUBLIC HEARING - OUTDOOR FESTIVAL PERMIT REOUEST OF BELLE GROVE PLANTATON — BELLE GROVE WINE FESTIVAL AND ANTIQUES APPRAISAL FAIR. 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, NOVEMBER 5 AND 6, 2011, FROM 10:00 A.M. TO 4:00 P.M. EACH DAY, ON THE GROUNDS OF BELLE GROVE PLANTATION, 336 BELLE GROVE ROAD, MIDDLETOWN, VIRGINIA. PROPERTY OWNED BY THE NATIONAL TRUST FOR HISTORIC PRESERVATION. - APPROVED Administrator Riley advised this was a request for an outdoor festival permit by Belle Grove Plantation for the Belle Grove Wine Festival and Antiques Appraisal Fair. The event will be held on Saturday and Sunday, November 5 and 6, 2011 from 10:00 a.m. — 4:00 p.m. each day. Elizabeth McClung, President of Belle Grove, Inc., appeared before the Board regarding this item. She noted this was the inaugural year of the wine festival and it was being added to the antiques weekend. She advised the same management policies were used as with the beer Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye PUBLIC HEARING - OUTDOOR FESTIVAL PERMIT REOUEST OF BELLE GROVE PLANTATON — BELLE GROVE WINE FESTIVAL AND ANTIQUES APPRAISAL FAIR. 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, NOVEMBER 5 AND 6, 2011, FROM 10:00 A.M. TO 4:00 P.M. EACH DAY, ON THE GROUNDS OF BELLE GROVE PLANTATION, 336 BELLE GROVE ROAD, MIDDLETOWN, VIRGINIA. PROPERTY OWNED BY THE NATIONAL TRUST FOR HISTORIC PRESERVATION. - APPROVED Administrator Riley advised this was a request for an outdoor festival permit by Belle Grove Plantation for the Belle Grove Wine Festival and Antiques Appraisal Fair. The event will be held on Saturday and Sunday, November 5 and 6, 2011 from 10:00 a.m. — 4:00 p.m. each day. Elizabeth McClung, President of Belle Grove, Inc., appeared before the Board regarding this item. She noted this was the inaugural year of the wine festival and it was being added to the antiques weekend. She advised the same management policies were used as with the beer Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 festival. She stated there was an error in the application relative to the time and she would like to amend it to be from10:00 a.m. to 5:00 p.m. each day. The Board asked the county attorney for direction regarding the requested time change. County Attorney Rod Williams advised the time was beyond what had been advertised and there was not sufficient time to readvertise the public hearing. Mrs. McClung stated that the beer fest normally went until 6:00 p.m. Supervisor Fisher stated that past events of a similar nature had been held past 4:00 p.m. and there had been no issues. He also noted the applicant mentioned the time had been listed as 4:00 p.m. in error. He further mentioned that that Belle Grove's history with events had been outstanding. County Attorney Williams stated that based upon Supervisor Fisher's suggestion that the applicant's intent was there and for the sake of one hour each day the board could proceed. Chairman Shickle convened the public hearing. There were no public comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor Lofton, seconded by Supervisor Fisher, the Board approved the outdoor festival permit request for Belle Grove Plantation with the amended hours of 10:00 a.m. to 5:00 p.m. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye PLANNING COMMISSION BUSINESS: PUBLIC HEARINGS PUBLIC HEARING - CONDITIONAL USE PERMIT #08 -11 OF SMITHFIELD PROPERTIES TO RE- ESTABLISH A DISCONTINUED NON - CONFORMING USE IN ORDER TO ENABLE CONSTRUCTION OF A SINGLE FAMILY DWELLING THE PROPERTY IS LOCATED AT 417 FROG HOLLOW ROAD, AND IS IDENTIFIED WITH PROPERTY IDENTIFICATION NUMBER 22 -A -20 IN THE GAINESBORO MAGISTERIAL DISTRICT. - DENIED Planning Director Eric Lawrence appeared before the Board regarding this item. He advised this was a request for a conditional use permit to re- establish a non - conforming use to enable a single - family dwelling with reduced setbacks. The property is located at 417 Frog Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 us N o t Hollow Road in the Gainesboro Magisterial District. Director Lawrence stated that staff had documentation of the previous structure from the court records, the Commissioner of the Revenue, and Health Department records. He explained that the applicant was seeking to re- establish a dwelling. He noted this was a unique situation because there is no building footprint available due to the lot size. He went on to say that staff believes this request meets the intent of Zoning Ordinance section 901.03. He concluded by saying the Planning Commission recommended approval. Supervisor Lofton asked if this conditional use permit would be issued in perpetuity. Director Lawrence responded yes. Supervisor Fisher asked about the age of the drainfield. Director Lawrence responded that the permit was issued in 1967 and the Health Department believes it is the same drainfield. He went on to say the Health Department did not believe there was any indication it had failed. Supervisor Spicer stated that a conditional use permit implies the prior use was legally non - conforming. If the structure was previously encroaching on the property was that legal. Director Lawrence responded that prior to 1996 the county did not require surveys for house placements and it was not unusual to find a house that was across a property line. Supervisor Spicer noted there was a separate statute that applied to the destruction of structures versus abandonment of structures and he was not sure whether this structure would be classified as abandonment or destruction. He went on to say under this section there was no provision to re- establish a non - conforming use. Director Lawrence responded that if a structure burns down the owner has 12 months to notify staff of their intent to replace the structure; however, if they fail to satisfy this requirement, an owner can go the legislative route with a conditional use permit. Supervisor Collins asked if the county became aware of the encroachment when it received the 2007 survey. He went on to ask when the adjoining property owners were made aware of the encroachment. Director Lawrence responded that he did not know. He went on to say that the county's tax records did not pick up this parcel for a number of years. Supervisor Collins stated he was concerned that by this legislative action the Board would be taking property from one person and giving it to another. Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 W ITO O VI Director Lawrence responded that the applicant could re- establish the use with a five -foot set back. Chairman Shickle convened the public hearing. Mark Berg, Back Creek District, stated the applicant should have seen this property would not accommodate the proposed structure and the application should not be approved. Earl Nicholson, Gainesboro District, spoke against the application. He stated the double -wide was not put there legally. The structure sits on the property line and approval of the application would devalue his property. He went on to say the proposed trailer was sitting on fill dirt that could wash out. He showed pictures that illustrated where the old trailer was located and where the new one would be located. He advised that the drainfield had not been used in eight years and that years ago sewer water stood ankle deep on the property. There being no further comments, Chairman Shickle closed the public hearing. Supervisor Spicer stated that he had visited with Mr. Nicholson to look at the property. The proposed structure is far too close to the existing structure and he had several other legal concerns that were addressed in his questions to staff. Upon a motion by Supervisor Spicer, seconded by Supervisor Fisher, the Board denied Conditional Use Permit #08 -11. Chairman Shickle stated that he had known all of the parties that lived in and around this property and the end result is not something that should happen. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye PUBLIC HEARING - RELIANCE ROAD AREA PLAN — AN AMENDMENT TO THE 2030 COMPREHENSIVE PLAN, APPENDIX I, TO INCLUDE A NEW AREA PLAN FOR THE RELIANCE ROAD AREA OF THE COUNTY. THE AREA PLAN INTRODUCES FUTURE COMMERCIAL AND TECHNOLOGY LAND USE DESIGNATIONS TO AN AREA TOTALING APPROXIMATELY 311 ACRES. THE AREA PLAN INCLUDES PROVISIONS FOR TRANSPORTATION IMPROVEMENTS TO ACCOMMODATE THE LAND USE DESIGNATIONS. AT THIS TIME, THE AREA PLAN DOES NOT INCLUDE AN EXPANSION OF THE SEWER AND WATER SERVICE AREA (SWSA). THE AREA IS GENERALLY EAST OF I -81 AND THE TOWN OF MIDDLETOWN, ALONG RELIANCE ROAD. — ACTION POSTPONED UNTIL FIRST MEETING IN DECEMBER 2011 AND REFERRED BACK TO THE COMMITTEE FOR REVIEW OF TRANSPORTATION ISSUES Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 1so Planning Director Eric Lawrence appeared before the Board regarding this item. He advised that the Town of Middletown approached the county seeking a boundary line adjustment between the two jurisdictions. The county evaluated the request and created a steering committee. The committee identified three steps in the process, which must be completed before a boundary line adjustment could occur: 1. Develop /adopt a land use plan for the area in question; 2. Identify provisions for water and sewer service; and 3. Determine if the boundary line adjustment would be appropriate. He went on to say that the Board was considering only the land use plan at this meeting. The area in question contains approximately 311 acres. The future land use plan proposes 44 acres zoned for business uses and approximately 259 acres zoned for technology uses. He noted that no residential uses were proposed under this plan. Director Lawrence went on to explain that under the proposed land use plan: - Buckton Road would be relocated and utilized to access the land bays; - Continue the boulevard and manage the access along Reliance Road; - Utilize the town's water and sewer; - Property owners would still have to go through the rezoning process. Director Lawrence went on to say that key factors surrounding implementation of this plan include: - Property owner interest; - Water availability; - Transportation network; - Fiscal impact; and - Public support. He noted the Planning Commission was not supportive of a sewer and water service area expansion until adequate water could be identified. He concluded by saying the Planning Commission recommended approval. Fred Wharton, Zoning Administrator for the Town of Middletown, advised that the steering committee had worked for a year and a half on this study and made progress. He believed the land use plan is excellent. He advised that the provision of water would be the town's problem and would have to be solved before a boundary line adjustment could occur. Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 Ai Supervisor DeHaven stated that to be prudent, the residents along Huttle Road should be warned that something will be happening there as this plan starts to be implemented. He stated the plan did not notate that the road has to be re- routed, cul -de- sacked or moved, but the residents should be put on notice. Chairman Shickle stated he had a problem with the transportation network shown in the land use plan. He was concerned about it being presumptive and what would happen if the plan did not work. He went on to say that he was not sure how the county determines this is what needs to happen there. Director Lawrence responded that property owners would have to go through the rezoning process and do traffic impact analyses. Chairman Shickle stated this plan comes across as a transportation plan. Director Lawrence responded that it was a guide. Chairman Shickle stated he was very apprehensive about labeling this transportation plan as the ideal. He asked how the board should proceed if there was support for the land use plan, but not the transportation component. Director Lawrence responded "cautiously ". He advised the Board to be careful approving a plan that does not address VDOT's plan. He went on to say that if the Board did not like the whole product then the committee should probably go back to work on it. Vice - Chairman Ewing stated that he appreciated the concerns. He noted that he was looking at the plan as a land use plan with the transportation component as a guide. He went on to say he had no problem delaying action in order to get concerns cleared up. Supervisor Lofton agreed with Vice - Chairman Ewing. He too was looking for a document that would guide. He stated that he understood Chairman Shickle's concerns and they should be given thought if that is how the plan is perceived. Chairman Shickle convened the public hearing. Mark Davis, Middletown Town Council member and Planning Commission liaison, spoke as a representative of the Middletown Planning Commission. He stated the commission generally approved of the plan. He approved of the land uses and parcels identified. He noted there was some verbiage that made them uncomfortable. He went on to say they would like to keep discussions open with the county when the boundary line adjustment occurs. Mr. Davis stated the plan implies development first and the boundary line adjustment later and he would Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 085 prefer to have that reversed. He noted the Planning Commission was working on a highway commercial zoning ordinance for this area that may come into town in the future. He concluded by saying he did not recognize this plan as a transportation plan. Branson Miller, Back Creek District, reiterated that Middletown would like to see the boundary line adjustment occur before development and he agreed the transportation plan should — I I be included in this. Mark Berg, Back Creek District, asked if the circles on Reliance Road were roundabouts or intersections. He stated transportation should be addressed. He concluded by saying if there were roundabouts they should not be in the commercial area. There being no further public comments, Chairman Shickle closed the public hearing. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board postponed this item until the first meeting in December and returned the plan to the steering committee to review the transportation issues and to bring it back to the Board of Supervisors. Supervisor Fisher' noted everyone should be aware of the water issue, in particular looking at regional water impacts. There being no further discussion, the 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye PUBLIC HEARING - AMENDMENT TO THE FREDERICK COUNTY CODE CHAPTER 165, ZONING, ARTICLE VI, BUSINESS AND INDUSTRIAL ZONING DISTRICTS, PART 606, M1 LIGHT INDUSTRIAL DISTRICT, SECTION 165- 606.02, ALLOWED USES, AND ARTICLE II SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS AND REGULATIONS FOR SPECIFIC USES, PART 204, ADDITIONAL REGULATIONS FOR SPECIFIC USES, SECTION 165- 204.12, MOTOR VEHICLE SERVICES USES AND PUBLIC GARAGES – REVISION TO ALLOW AUTOMOTIVE REPAIR SHOPS AS A PERMITTED USE IN THE M1 (LIGHT INDUSTRIAL) ZONING DISTRICT AND REVISIONS TO THE REGULATIONS FOR SPECIFIC USES. - APPROVED Senior Planner Candice Perkins appeared before the Board regarding this item. She advised that staff had received numerous requests to permit automobile repair shops in the M1 (Light Industrial) Zoning District. She noted that automobile repair is currently permitted in the B3 (Industrial Transition) and the M2 (Industrial General) Zoning Districts. The proposed Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 �i• amendment would permit SIC 752 as a permitted use in the Ml Zoning District along with additional supplemental use regulations for the use. Should the Board adopt the proposed amendment, the following uses would be permitted: - Top, Body and Upholstery Repair Shops and Paint Shops; - Automotive Exhaust System Repairs Shops; - Tire Retreading and Repair Shops (currently permitted in the M1); - Automotive Glass Replacement Shops; - Automotive Transmission Repair Shops; - General Automotive Repair Shops; and - Automotive Repair Shops, Not Elsewhere Classified. She concluded by saying the Planning Commission reviewed this proposed amendment and recommended approval. Supervisor Spicer asked where the six foot high fence requirement came from. Senior Planner Perkins responded that it was standard under the ordinance for outdoor storage uses. Supervisor DeHaven asked if it was consistent across all zoning districts. Senior Planner Perkins responded yes. Chairman Shickle convened the public hearing. There were no citizen comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor DeHaven, seconded by Supervisor Spicer, the Board approved the ordinance amending Chapter 165 Zoning, Article VI Business and Industrial Zoning Districts, Part 606 M1 Light Industrial District, 165- 606.02 Allowed Uses; Article II Supplementary Use Regulations, Parking, Buffers, and Regulations for Specific Uses Part 204 Additional Regulations for Specific Uses 165- 204.12 Motor Vehicle Service Uses and Public Garages. WHEREAS, an ordinance to amend Chapter 165, Zoning to permit repair shops in the M1 Zoning District was considered. WHEREAS, The Planning Commission held a public hearing on this ordinance on September 7, 2011; and WHEREAS, The Board of Supervisors held a public hearing on this ordinance on September 28, 2011; and WHEREAS, the Frederick County Board of Supervisors finds that the adoption of this Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 ordinance to be in the best interest of public health, safety, welfare, and in good zoning practice; and NOW, THEREFORE, BE IT ORDAINED, by the Frederick County Board of Supervisors that CHAPTER 165, ZONING, ARTICLE VI, BUSINESS AND INDUSTRIAL ZONING DISTRICTS, PART 606, M1 LIGHT INDUSTRIAL DISTRICT, SECTION 165- 606.02, ALLOWED USES; AND ARTICLE II, SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS AND REGULATIONS FOR SPECIFIC USES, PART 204, ADDITIONAL REGULATIONS FOR SPECIFIC USES, SECTION 165- 204.12, MOTOR VEHICLE SERVICES USES AND PUBLIC GARAGES are revised to permit automobile repair shops in the M1 (Light Industrial) District. Article VI BUSINESS AND INDUSTRIAL ZONING DISTRICTS Part 606 — M1 Light Industrial District 165- 606.02. Allowed Uses Standard Industrial Classification (SIC) Automotive Repair Shops 753 Tie retreading 75- 4 Article II SUPPLEMENTARY USE REGULATIONS, PARKING, BUFFERS, AND REGULATIONS SPECIFIC USES Part 204 — Additional Regulations for Specific Uses § 165- 204.12 Motor vehicle service uses, automotive repair shops, and public garages. All motor vehicle service uses, automotive repair shops and public garages shall meet the following requirements. A. All repair shall take place entirely within an enclosed structure. B. All exterior storage of parts and equipment shall be screened from view of surrounding properties by an opaque fence or screen at least six €rve feet in height. This fence or screen shall be adequately maintained. C. Inoperable motor vehicles must be stored within a totally enclosed building or screened on all sides by a six foot opaque element such as a fence, wall or berm. D. In the RA, M1 and M2 Zoning Districts, the sale of automobiles shall not be permitted as an accessory or secondary use to any automotive repair shop. 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 Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye PUBLIC HEARING - THE NORTHERN SHENANDOAH VALLEY REGIONAL WATER SUPPLY PLAN AND THE FREDERICK COUNTY DROUGHT RESPONSE AND CONTINGENCY PLAN ORDINANCE. A PUBLIC HEARING WILL BE HELD TO PRESENT INFORMATION AND SEEK PUBLIC COMMENT ON THE NORTHERN SHENANDOAH VALLEY REGIONAL WATER SUPPLY PLAN AND THE FREDERICK COUNTY RESPONSE AND CONTINGENCY PLAN ORDINANCE (RESOLUTION #'S 018 -11 AND 020 -11). Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 r� FULL TEXT OF THE REGIONAL WATER SUPPLY PLAN WHICH COMPLIES WITH 9 VAC 25 -780 IS AVAILABLE AT THE NORTHERN SHENANDOAH VALLEY REGIONAL COMMISSION OFFICE AND WEBSITE (WWW NSVRC VIRGINIA GOV) AND IS POSTED ON THE FREDER COUNTY WEBSITE (WWW FREDERICKCOUNTYVA.GOV). FULL TEX OF THE FREDERICK COUNTY DROUGHT RESPONSE AND CONTINGENCY PLAN ORDINANCE IS AVAILABLE IN THE FREDERICK COUNTY ADMINISTRATOR'S OFFICE AND IS POSTED ON THE FREDERICK COUNTY WEBSITE (WWW FREDERICKCOUNTYVA.GOV). THIS WILL BE A JOINT PUBLIC HEARING OF THE WATER SUPPLY PLAN AND THE DROUGHT RESPONSE AND CONTINGENCY PLAN ORDINANCE. — THE NSVRC WILL SUBMIT THE REGIONAL WATER SUPPLY PLAN TO THE STATE WATER CONTROL BOARD ON BEHALF OF THE JURISDICTIONS WITHIN THE PLANNING REGION INCLUDING THE CITY OF WINCHESTER, THE FIVE COUNTIES OF CLARKE, FREDERICK, PAGE, SHENANDOAH AND WARREN AND THE FOURTEEN TOWNS THEREIN. THE REGIONAL WATER SUPPLY PLAN SUMMARIZES EXISTING WATER SOURCES AND USE AND FUTURE DEMANDS TO 2040 TO IDENTIFY THE SUITABILITY OF EXISTING SUPPLIES TO MEET FUTURE WATER DEMANDS. THE DROUGHT RESPONSE AND CONTINGENCY PLAN ORDINANCE IS PREPARED IN RESPONSE TO SECTION 120 OF 9 VAC 25- 780 AND OUTLINES THE DROUGHT STAGES, VOLUNTARY AND MANDATORY WATER CONSERVATION MEASURES AND THE ENFORCEMENT PROCEDURES FOR VIOLATIONS OF THE DROUGHT ORDINANCE. COMMENTS ON ISSUES RELATED TO THE WATER SUPPLY PLAN AND THE DROUGHT ORDINANCE MAY BE MADE DURING THE PUBLIC HEARING AND WILL BE SUBMITTED WITH A RESPONSE IN THE APPLICATION TO THE STATE WATER CONTROL BOARD. – APPROVED REGIONAL WATER SUPPLY PLAN AND APPROVED DROUGHT ORDINANCE AS AMENDED Senior Planner Candice Perkins appeared before the Board regarding these items. She advised the Board would conduct two separate public hearings. Hearing one would be on the proposed Regional Water Supply Plan. Hearing two would be on the proposed Local Drought Ordinance. She then introduced Ms. Jill Keihn, Natural Resources Program Manager with the Northern Shenandoah Valley Regional Commission to go over the water supply plan. Ms. Keihn gave the board a brief overview of the plan and the timeline of plan development. She noted the plan had been adopted by the Frederick County Sanitation Authority at its August 2011 meeting. Chairman Shickle convened the public hearing. There were no public comments. Chairman Shickle closed the public hearing. Upon a motion by Supervisor Fisher, seconded by Supervisor Lofton, the Board approved the Resolution ( #018 -11) Approving the Northern Shenandoah Regional Water Supply Plan. WHEREAS, Virginia State Water Control Board Regulation 9 VAC 25 -780, Local and Regional Water Supply Planning requires all counties, cities, and towns in the Commonwealth of Virginia to prepare and submit a water supply plan to the Department of Environmental Quality (DEQ); and Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 WHEREAS, Frederick County is a participant in the Northern Shenandoah Valley Regional Water Supply Planning Group comprised of twenty jurisdictions including the City of Winchester, the five Counties of Clarke, Frederick, Page, Shenandoah, and Warren; and the fourteen Towns of Berryville, Boyce, Edinburg, Front Royal, Luray, Middletown, Mount Jackson, New Market, Shenandoah, Stanley, Strasburg, Stephens City, Toms Brook, and Woodstock; and WHEREAS, on August 30, 2011, the Board of Supervisors held a work session to discuss the Regional Water Supply Plan; and WHEREAS, on September 28, 2011, the Board of Supervisors held a public hearing to accept public comment on the Regional Water Supply Plan; and WHEREAS, the adopted Regional Water Supply Plan must be submitted to the DEQ on or before November 2, 2011; NOW, THEREFORE, BE IT RESOLVED that the Frederick County Board of Supervisors hereby adopts the Regional Water Supply Plan as it pertains to Frederick County. Approval and adoption of this regional plan indicates support for and general agreement with the regional planning approach, but does not indicate approval or disapproval of conclusions and recommendations presented in the plan as they pertain to other localities. Frederick County reserves the right to comment on specific water supply alternatives in the future even though such alternatives may be recommended in this adopted plan. Frederick County will not be limited to specific water supply alternatives in this adopted plan and reserves the right to recommend additional alternatives for consideration in the future. BE IT FURTHER RESOLVED that the Frederick County Board of Supervisors intends that the Regional Water Supply Plan shall be revised to reflect changes in relevant data at least once every five years and resubmitted to Virginia Department of Environmental Quality every ten years in accordance with the regulation and sound planning practice. Passed this 28 day of September, 2011 by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye Supervisor DeHaven stated that he worried when the State mandates that we have to adopt a plan. Senior Planner Perkins appeared before the Board regarding the proposed Local Drought Ordinance. She advised that part of the regional Water Supply Plan mandate included preparation of a Local Drought Response and Contingency Plan Ordinance. She stated this local ordinance would outline the drought stages, the voluntary and mandatory water conservation measures, and the enforcement procedures for violations. The local ordinance must also be adopted by November 2, 2011. She went on to say these measures would apply to those on public water service only. She advised that since the August 30, 2011 work session, staff had revised the ordinance to reference the Code of Virginia when declaring a drought emergency and Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 specified the "non- commercial washing of privately owned automobiles" under the various drought stages. Vice - Chairman Ewing asked about the mandatory rate increase because he noticed it had not been taken out of the ordinance. Supervisor Spicer stated the Sheriff had expressed concerns about costs and enforcement. Senior Planner Perkins advised that the proposed ordinance lays out the various layers involved in enforcement, but does not get into the minutiae of how it will be enforced. Supervisor Collins asked where the fines paid for violations would go. Administrator Riley responded they would be put into the General Fund. Chairman Shickle convened the public hearing. There were no public comments. Chairman Shickle closed the public hearing. Vice - Chairman Ewing stated he could not support the ordinance if the rate increase remains. Supervisor Collins suggested amending paragraph 4 of that section. Supervisor Spicer stated he was comfortable with the language as it was written. Supervisor Collins moved to amend paragraph 4 to read "Implementation of conservation water rates .... could be increased by action of the Board of Supervisors to a maximum of 20% over existing rates." Vice - Chairman Ewing seconded that motion. The Board and representatives from the Frederick County Sanitation Authority discussed the possible implementation of these emergency rates. Supervisor Lofton questioned if the Board of Supervisors had any authority relative to the rates or if that was up to the Sanitation Authority. After further discussion, County Attorney Rod Williams suggested the following verbiage for paragraph 4: The implementation of conservation water rates could be approved by the Board of Supervisors for the duration of the drought emergency stage to a maximum increase of 20% above the existing rate. This drought conservation rate is a temporary fee imposed during the current water supply shortage and is not a cost -based rate. The Conservation rate will be terminated at such time as the Drought Emergency status is lifted. Supervisor Collins amended his motion to amend paragraph 4 to reflect the language of the county attorney. Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 091 Vice - Chairman Ewing seconded the amended motion. Supervisor Fisher stated he could not support the amended language, as there needed to be some incentive for citizens to conserve during drought emergencies. 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. Nay Gene E. Fisher Nay Gary A. Lofton Aye Ross P. Spicer Nay Chairman Shickle then called for a vote on the amended ordinance. (Resolution #020 -11) WHEREAS, Virginia State Water Control Board Regulation 9 VAC 25- 780 -10 et seq., Local and Regional Water Supply Planning, requires all counties, cities and towns in the Commonwealth of Virginia to prepare and submit a water supply plan to the Department of Environmental Quality (DEQ); and WHEREAS, Preparation of a local drought ordinance is consistent with the Local and Regional Water Supply Planning requirement. The Drought Response and Contingency Plan Ordinance is prepared in response to section 120 of 9 VAC 25 -780 and outlines the drought stages, voluntary and mandatory water conservation measures and the enforcement procedures for violations of the Drought Response and Contingency Plan Ordinance. WHEREAS, on August 30, 2011, the Board of Supervisors held a work session to discuss the Drought Response and Contingency Plan Ordinance; and WHEREAS, on September 28, 2011, the Board of Supervisors held a public hearing to accept public comment on the Drought Response and Contingency Plan Ordinance; and WHEREAS, the Frederick County Board of Supervisors finds that adoption of this ordinance to be in the best interest of the public health, safety, and welfare; and NOW, THEREFORE, BE IT RESOLVED that the Frederick County Board of Supervisors hereby adopts the Chapter 75 of the Code of Frederick County — Drought Response and Contingency Plan Ordinance. Drought Response and Contingency Plan Ordinance Chapter 75 of the Code of Frederick County §75 -1. Definitions. The following words and phrases, when used in this ordinance, shall have the meaning ascribed to them below, except in those instances when the context clearly indicates a different meaning: Established landscaping: Landscaping plantings or lawns existing in an area after such period of time as to accomplish an establishment and maintenance of growth. Fountain: A water display where water is sprayed strictly for ornamental purposes. New landscaping: Any landscaping or lawns made up of plants or seeds planted in or transplanted to an area within such period of time as to accomplish a reasonable establishment and maintenance of growth. This does not include aeration and seeding, dethatching and seeding, or power overseeding of established lawns. Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 0921 Person: Any individual, corporation, partnership, association, company, business, trust, joint venture or other legal entity. Swimming pool: Any structure, basin, chamber, or tank including hot tubs, containing an artificial body of water for swimming, diving or recreational bathing and having a depth of two feet or more at any point. Vegetable garden: Any "non- commercial" vegetable garden planted primarily for household use; "noncommercial" includes incidental direct selling of produce from such a vegetable garden to the public. —" X75 -2. Drought/Low Water Supply Response Plan. The County of Frederick adopts by reference the current version of the Northern Shenandoah Valley Regional Commission (NSVRC) Drought/Low Water Supply Response Plan. The adoption of this plan, or a substitution plan authorized by the County of Frederick, is pursuant to, and authorized by, applicable sections of the Virginia Code (as required by 9VAC 25- 780 -120; and as authorized by Code of Virginia 15.2 -923 (ii) – Local Water- Saving Ordinances, and 15.2- 924 - Water Supply Emergency Ordinances). X75 -3. Authority granted to local jurisdictions by the Code of Virginia. Section 15.2 -924 of the Code of Virginia states that localities have the power to declare water supply emergency, and to restrict citizens' water use for the prevention of or the duration of a water supply emergency. When such restrictions are put into place, any local water supply system may apply to the State Water Control Board for assistance if they are able to provide evidence that they have exhausted their available means. Water can be bought from one water supplier for the benefit of another to alleviate local water shortages; in such cases, water will be paid for at an agreed upon rate of the supplier. §75 -4. Conditions for the declaration of potential shortage of water; applicable restrictions. A. The Drought Contingency and Response Plan for Frederick County provides guidance for evaluating the potential for, or existence of, drought conditions and implementation of response and contingency activities for persons utilizing the public water system. The provisions of this section apply only to persons utilizing the public water system, but persons served by private wells are also encouraged to implement voluntary reductions during drought stages. Frederick County is authorized to take special measures of prudent management to prevent a critical water shortage when a potential shortage and /or emergency condition exists as outlined in this chapter and in the Frederick County Sanitation Authority's Drought Management Plan, in the water system(s), and to declare Drought Watch, Drought Warning or Drought Emergency conditions within the jurisdiction. The County Administrator in consultation with the Executive Director of the Sanitation Authority will evaluate the conditions and make the determination which stage of drought is occurring. Upon a determination of the existence of the following conditions, the County Administrator or his designee shall, in accordance with Section 44- 146.21 of the Code of Virginia, declare a Drought Watch, Drought Warning, or Drought Emergency, as appropriate. Said declaration shall be subject to confirmation by the Board of Supervisors at its next regularly scheduled meeting or at a special meeting within fourteen days of the declaration, whichever occurs first. (1) Drought Watch. The Drought Watch stage applies when dry weather conditions persist or worsen and the water demand or usage remains steady or increased which creates questions as to the sustainability of the water resource supplies. Drought Watch target is to increase public awareness and reduce water consumption by 10% for residential users and 15% for non- residential users through voluntary water conservation. Required actions include monitoring of drought conditions, notifying the public of incipient drought via local media, public service announcement, County website, notices with water bills, and requesting voluntary reduction in nonessential water use, including: • Reduce outdoor water use including the watering of lawns and landscaping; Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 093 • Use washing machines and dishwashers only when loads are full; • Reduce water use when performing personal hygiene; • Install water savings devices in the home including faucet aerators and low flow toilets; • Install rain barrels for watering plants, washing vehicles and general cleanup; and • Check faucets and toilets for potential leaks. (2) Drought Warning. The Drought Warning stage applies when dry conditions are severely affecting the reliability of the water resources and the ability of the Frederick County Sanitation Authority to adequately supply and meet future demands or usage of its clients. Drought Warning target is to increase public awareness and reduce water consumption by 15% for residential users and 20% for non - residential users through voluntary and mandatory water conservation. Required actions include monitoring of drought conditions, notifying public of the Drought Warning via local media, public service announcement, County website, notices with water bills, requesting voluntary water conservation measures, and implementing mandatory reduction in nonessential water use as follows: 1) Voluntary reductions of overall water use by all customers of the FCSA, as set forth above for the Drought Watch stage, and, in addition: a. Customers not served drinking water in restaurants unless requested; b. Ceasing installation of new irrigation taps on the FCSA system; c. Ceasing water service to customers who have been given a 5 day notice to repair one or more leaks and have failed to do so; d. Limiting expanding new irrigated land in production or planting or landscaping that is required by site design review process; and e. Reducing watering of shrubbery, trees, lawns, grass, plants, and other established landscaping by implementing an alternate -day use schedules based on last digit of residential or commercial address: odd - number addresses - Tuesday, Thursday and Saturday; even number addresses - Wednesday, Friday and Sunday, with no watering to occur between 10:00 AM and 6:00 PM. 2) Specifically prohibited activities using water are: a. Washing down of streets, sidewalks, walkways, driveways, parking lots, service station aprons, tennis courts, other hard surfaced areas, buildings, and structures, except as required for safety concerns; b. Non - commercial washing of privately owned automobiles, trucks, trailers, boats, and any other types of mobile equipment, except where required to meet air quality standards; c. Using water to maintain fountains, reflective ponds and decorative water bodies for aesthetic or scenic purposes, except where necessary to support aquatic life; d. Obtaining water from fire hydrants for construction purposes, fire drills or any other purpose other than fire suppression or other public emergency; e. Using water to fill or refill public or private swimming pools; and f. Bulk water sales (haulers). 3) Intensification of maintenance efforts to identify and correct water leaks in the distribution system. (3) Drought Emergency. The Drought Emergency stage applies when extreme water shortage or drought conditions have caused significant adverse impacts to the reliability of water resources and the ability of the Frederick County Sanitation Authority to adequately supply and meet future demands or usage requirements of its clients and the public health and safety are at risk. Drought Emergency target is to increase public awareness and reduce water withdrawals by 20% for residential users and 25% for non - residential users through voluntary and mandatory water conservation. Required actions include monitoring of drought conditions, notifying public of the Drought Emergency via local media, public service announcement, County website, notices with water bills, and requesting voluntary water conservation measures, and implementing mandatory reduction in nonessential Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 '094 water use as follows: 1) Voluntary reductions of overall water use by all customers of the FCSA, as set forth above for the Drought Watch and Drought Warning stages, except that irrigation of established and new landscaping is prohibited, and not voluntary; . 2) Specifically prohibited activities using water are: a. Washing down of streets, sidewalks, walkways, driveways, parking lots, service station aprons, tennis courts, other hard surfaced areas, buildings, and structures, except as required for safety concerns; b. Non - commercial washing of privately owned automobiles, trucks, trailers, boats, and any other types of mobile equipment, except where required to meet air quality standards; c. Using water to maintain fountains, reflective ponds and decorative water bodies for aesthetic or scenic purposes, except where necessary to support aquatic life; d. Obtaining Water from fire hydrants for construction purposes, fire drills or any other purpose other than fire suppression or other public emergency; e. Using water to fill or refill public or private swimming pools; £ Watering of all shrubbery, trees, lawns, grass, plants, and other established or new landscaping; g. Watering of vegetable gardens; h. Bulk water sales (haulers). 3) A moratorium on the issuance of all new water service connections. As part of the public information process, notices will be provided to developers on the moratorium. 4) The implementation of conservation water rates could be approved by the Board of Supervisors for the duration of the drought emergency stage to a maximum increase of 20% above the existing rate. This drought conservation rate is a temporary fee imposed during the current water supply shortage and is not a cost -based rate. The Conservation rate will be terminated at such time as the Drought Emergency status is lifted. 5) Intensification of maintenance efforts to identify and correct water leaks in the distribution system. B. Frederick County shall choose their local data sources, establish their local trigger points for the varying declarations, and evaluate various information sources prior to enabling or rescinding any noted declaration. C. During extreme drought emergency situations, Frederick County shall be permitted to reduce the water system pressure and to further ration the water supply, as needed. D. Drought Emergency conditions may also be declared by the jurisdiction in certain circumstances which are listed in this chapter, and in the event of equipment failure, contamination or other non - drought related event that prevents short-term provision of adequate water supplies. §75 -5. Notice. Notice of these public water use restrictions shall be published in the local media for a period of one day per week each week during which the restrictions are in effect and on the County website while the restrictions are in effect. §75 -6. Violation. It shall be a violation of this ordinance for any person to use water, or allow or cause the use of water, in violation of the provisions of this ordinance after the first publication required by 75 -05 of this ordinance. X75 -7. Penalty. Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 095 A. Violations of this chapter shall constitute civil violations as outlined herein. The Frederick County Sheriffs Department, the Frederick County Fire Marshal and the Frederick County Sanitation Authority are hereby authorized to enforce this chapter and all rules, regulations and penalties herein related to all drought stages. The Sheriffs Department, Fire Marshal or Sanitation Authority may provide a citation for a civil violation to any individual who has violated any provision of this chapter. 1. Any person who violates any provision of this ordinance after publication of notice pursuant to 75 -05 above shall be subject to the following civil penalties: i. Drought Warning Stage: a. For the first violation of a Drought Warning Stage, violators shall be fined $50.00. b. For the second violation of a Drought Warning Stage, violators shall be fined $100.00. c. For the third violation, violators shall be fined $150.00 and will immediately be disconnected from the Frederick County Sanitation Authority's water system for the duration of the drought warning stage. Such service shall not be restored until the fine, the reconnection fee, along with any other charges are paid. ii. Drought Emergency Stage: a. For the first violation of a Drought Emergency Stage, violators shall be fined $100.00. b. For the second violation of a Drought Emergency Stage, violators shall be fined $150.00 and will be immediately disconnected from the Frederick County Sanitation Authority's water system for the duration of the drought emergency. Such service shall not be restored until the fine, the reconnection fee, along with any other charges are paid. c. For each violation of water theft during a Drought Emergency Stage from any hydrants shall result in $300.00 fine and confiscation of all equipment. Said offender or company shall be prohibited from accessing any Frederick County water source. iii. Each violation by a person shall be counted as a separate violation by that person, irrespective of the location at which the violation occurs. 2. The Executive Director of the Sanitation Authority may waive the penalty if he determines that the violation occurred due to no fault of the person. 3. Any person issued a citation for a civil violation may make an appearance in person or in writing by mail to the Treasurer of Frederick County, Virginia prior to the date fixed for trial in court. Any person so appearing may enter a waiver of trial, admit liability, and pay the civil penalty established for the violation charged. If a person charged with a violation under this Chapter does not elect to enter a waiver of trial and admit liability, the violation shall be tried in the general district court in the same manner and with the same right of appeal as provided for by law. In any trial for a violation under this Chapter, the locality shall have the burden of proving by a preponderance of the evidence the liability of the alleged violator. An admission of liability or finding of liability under this section shall not be deemed an admission at a criminal proceeding. B. The declaration of a Drought Watch, Drought Warning, or Drought Emergency under this Ordinance shall take effect immediately and be deemed adopted on an emergency basis pursuant to Virginia Code §15.2-1427(F), provided, however, the declaration shall not be enforced for more than 60 days unless readopted with prior notice and a public hearing pursuant to that Virginia Code section. C. During the implementation of this ordinance, the temporary repeal of other inconsistent ordinances within the Code of Frederick County may be authorized by the Board of Supervisors. Such temporary repeals shall last the duration of the decision in effect by the Board, provided, however, that such temporary repeals shall also not remain in effect for more than 60 days unless ratified with prior notice and a public hearing pursuant to Virginia Code §15.2-1427(F). Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 M o ro X75 -8. Appeals and Exceptions Upon implementation of a Drought Emergency stage (above), the County Administrator shall appoint an appeals board consisting of three (3) representatives from the jurisdiction administration and Frederick County Sanitation Authority. The County Attorney or designee shall serve as legal counsel to the appeals board. The appeals board shall be empowered to review customer applications for exemptions from the provisions of the mandatory conservation on a case -by -case basis and, if warranted, to make equitable adjustments to such provisions. The board shall also be empowered to establish regulations governing the granting of temporary exemptions applicable to all or some of the uses of the water supply as set forth. The board shall, in deciding applications, balance economic and other hardships to the applicant resulting from the imposition of water use restrictions or allocations against the person and cumulative impacts to the water supply resulting from the granting of exemptions. Individual applications shall be decided by the board within two (2) weeks of receipt of an application in proper form and containing all necessary information. §75 -9. Rescinding orders. Upon determining that conditions necessitating a declaration of a particular drought stage have alleviated, the County Administrator shall reduce to a lower stage or rescind the declaration under this chapter, as appropriate. In addition, nothing in this section shall be construed to prohibit the County Administrator from rescinding any orders issued hereunder when the conditions creating the need for such orders have abated. Passed this 28 day of September, 2011 by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye OTHER PLANNING ITEMS DISCUSSION OF PROPOSED ORDINANCE AMENDMENT — CHAPTER 165, LANDSCAPING REQUIREMENTS. — REFERRED BACK TO STAFF FOR MORE WORK Senior Planner Perkins appeared before the Board regarding this item. She advised that concerns had been expressed to staff over the allowable plant types, maintenance of plants, enforcement and bonding, residential separation buffers and road efficiency buffers. In an effort to address these concerns and make the ordinance easier to understand and implement, staff drafted proposed changes to the requirements contained within the Zoning Ordinance. She went on to say the draft ordinance proposed the following revisions: - Types of landscaping — Revisions to include new plant types, removal of certain plants and /or elimination of plants for specific landscaping uses. - Provisions for the condition, planting procedures and maintenance of landscaping. - Provisions for -the replacement of dead or dying plants and a requirement that plants removed be replaced with a larger plant size, and a requirement that fences and walls be maintained. Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 - Revisions to the allowances for tree credits and provisions for the replacement of trees utilized for tree credits. - Enforcement and Guarantees — Expanded section regarding bonding of landscaping to receive occupancy permits. - Revised buffer and screening text, including revisions to the distance buffer text to outline what is permissible within inactive and active buffer areas. - Residential Separation Buffers — Complete revision to the required separation buffers between various housing types. - Road efficiency Buffers — Complete revision to the required buffers between residential uses and roadways. She went on to say that a majority of this ordinance is implemented at the development stage for a subdivision or commercial or industrial development. An engineer or landscape architect would develop the plan. She noted this ordinance was not intended to cover individual residential lots. She advised that violations would be handled on a complaint basis. She noted the revision process began in 2009. She concluded by saying the Planning Commission forwarded this item to the Board for further discussion. Supervisor Spicer asked if there was language in the ordinance that made it clear that it did not apply to individual lots. Senior Planner Perkins responded the language needed to be clarified. Supervisor Spicer asked about the rationale for diversity of the plantings. Senior Planner Perkins responded if the plants got a disease or blight it could kill all of the plants if they were not diversified. She noted the diversity requirement was not previously in the ordinance. Chairman Shickle stated that he feared this ordinance missed the mark. Supervisor Fisher stated that he found the descriptions of plant materials totally unacceptable. He did not like the replacement policy at all. He went on to say the ordinance needed to be re- worked and there was too much leeway for the zoning administrator. Supervisor Collins stated the maintenance provision put a lot of onus on the members of homeowners' associations, if there was an active homeowners' association. Supervisor DeHaven stated this ordinance has always been difficult and there were any number of sections that needed attention. The Board referred this ordinance back to staff for more work. DISCUSSION OF PROPOSED ORDINANCE AMENDMENT — ADDITIONS TO THE PERMITTED USES IN THE RA (RURAL AREAS) AND RP Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 ,�. (RESIDENTIAL PERFORMANCE) ZONING DISTRICTS. — (RESOLUTION #019 -11) - FORWARDED TO PUBLIC HEARING AS AMENDED Senior Planner Candice Perkins appeared before the Board regarding this item. She advised this was an amendment to Chapter 165 to include additional permitted uses in the RA (Rural Areas) and RP (Residential Performance) Zoning Districts. The proposed amendment would add "public buildings" as a permitted use in the RA and RP Districts, "libraries" as a permitted use in the RA District, and "museums" as a permitted use in the RP District. Supervisor DeHaven noted that libraries and museums might not always be a public operation. Senior Planner Perkins suggested if there were concerns, public buildings could remain as a permitted use, while libraries and museums could be conditional uses. Supervisor DeHaven stated he liked the conditional use permit approach. Vice- Chairman Ewing supported all three uses being by conditional use permit. Supervisor Spicer agreed and stated there was no harm in giving the Board more control. Supervisor DeHaven stated the conditional use permit requirement could significantly impact those who attract industry to the community because of the extra steps involved. He went on to say he would prefer the public buildings be left as a permitted use and the others as conditional uses. Supervisor Fisher stated the approach seemed reasonable to him. Supervisor Collins agreed with libraries and museums as a conditional use. Upon a motion by Vice - Chairman Ewing, seconded by Supervisor Lofton, the Board approved the consideration of all three uses as a conditional use permit. WHEREAS, the Frederick County Planning Department has been directed to prepare modifications to Chapter 165, Zoning to include additional conditional uses in the RA and RP zoning districts. WHEREAS, The Development Review and Regulations Committee (DRRC) recommended approval of this amendment on July 27, 2011; and WHEREAS, the Planning Commission discussed the draft ordinance on September 7, 2011 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 additional conditional uses in the RA and RP zoning districts. 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 including additional conditional uses to Chapter 165 Zoning, Article IV Agricultural and Residential Districts, Part 401 RA Rural Area District, 165- 401.03 Conditional Uses; Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11 099 and Article IV Agricultural and Residential Districts, Part 402 RP Residential Performance District, 165-402.03 Conditional Uses. Passed this 28th day of September, 2011 by the following recorded vote: Richard C. Shickle Aye Bill M. Ewing Aye Christopher E. Collins Aye Charles S. DeHaven, Jr. Aye Gene E. Fisher Aye Gary A. Lofton Aye Ross P. Spicer Aye BOARD LIAISON REPORTS There were no Board of Supervisors comments. CITIZEN COMMENTS Dody Stottlemyer, Shawnee District, spoke regarding the difficulty she had trying to print some of the ordinances off of the website. She hoped the information could be made easier to access. Dave Stegmaier, Director of Community Outreach for Congressman Wolf, introduced himself to the Board and expressed his appreciation for their thoughtful and sensible decision making. BOARD OF SUPERVISORS COMMENTS Supervisor Lofton spoke about volunteering at the Blue Ridge Area Food Bank. He stated that he had the opportunity to speak with staff and was made aware of their needs. He advised the food bank was in need of donations of food and money. ADJOURN UPON A MOTION BY VICE - CHAIRMAN EWING, SECONDED BY SUPERVISOR FISHER, THERE BEING NO FURTHER BUSINESS TO COME BEFORE THIS BOARD, THIS MEETING IS HEREBY ADJOURNED. (9:50 P.M.) Richard C. Shickle Jo iley Jr. Chairman, Board of Supervisors erk, Board of Supervisors Minutes Prepared By: E Jay E/Ti6bs Deputy Clerk, Board of Supervisors Minute Book Number 37 Board of Supervisors Regular Meeting of 09/28/11