005-18 (RezoningO-NMinerals(ProfferAmendment))REZONING APPLICATION #05-17
O-N MINERALS/dba CARMEUSE LIME & STONE
Staff Report for the Board of Supervisors
Prepared: July 17, 2018
Staff Contact: Candice E. Perkins, AICP, CZA, Assistant Director
Reviewed Action
Planning Commission:
11/15/17 Public Hearing Held; Postponed for 90 Days
Planning Commission:
02/21/18 Public Hearing Held; Recommended Denial
Board of Supervisors:
03/14/18 Public Hearing Held; Postponed for 30 Days
Board of Supervisors:
04/25/18 Public Hearing Held; Postponed to May 23, 2018
Board of Supervisors:
05/23/18 Public Hearing Held; Postponed to June 13, 2018
Board of Supervisors:
06/13/18 Postponed to July 25, 2018
Board of Supervisors:
07/25/18 Pending
PROPOSAL:
To rezone 394.2+/- acres from the EM (Extractive Manufacturing) District with proffers
to the EM (Extractive Manufacturing) District with revised proffers. The Middletown site was
originally rezoned to the EM (Extractive Manufacturing) District with Rezoning #03-06 for O-N
Minerals (Chemstone) which was approved in 2008.
LOCATION:
The properties are located west of the Town of Middletown. Specifically, the Middle
Marsh Property is located east of Belle View Lane (Route 758), and west and adjacent to Hites Road
(Route 625) and is further traversed by Chapel Road (Route 627). The Northern Reserve is bounded to
the south by Cedar Creek and is west and adjacent to Meadow Mills Road (Route 624).
EXECUTIVE SUMMARY & CONCLUSION FOR THE 07/25/18 BOARD OF SUPERVISORS
MEETING:
The Planning Commission at their February 21, 2018 meeting unanimously recommended denial of this
application. The Board of Supervisors held a public hearing for this item on March 14, 2018 and
postponed the application until the April 25, 2018 meeting. The application was then postponed to the
rd
May 23 Board of Supervisors meeting to provide the Applicant additional time to work on the
application and was then postponed to the June 13, 2018 to allow additional time to review revised
proffers. At the June 13, 2018 meeting the application was postponed to the July 25, 2018 meeting.
With this revision, the Applicant is proposing an addendum to the approved proffers from Rezoning
#03-06 which was approved on May 28, 2008. Please note that the addendum proposes a format that
differs from past amendments. The proposed addendum includes the following:
Proffer Introduction
:
second opening paragraph is hereby replaced with the
Rezoning # 05-17 CARMEUSE LIME & STONE
July 17, 2018
Page 2
The Generalized Development Plan has been revised as of February 14, 2018. An additional
Plan Attac
All references in the original Proffer Statement to the GDP are hereby replaced with Amended
GDP. The Amended GDP is new Exhibit 1.
The following plats have been deleted from Exhibit 2: GDP, Overall Plan, Phase I Plan, Phase II
Plan, Phase III Plan, Phase IV Plan, Viewshed 4B, Viewshed 5B, Viewshed 6, Viewshed 7 and
Viewshed 8.
The following plats have been added to Exhibit 2: North Viewshed 1, North Viewshed 2 and
North Viewshed 3.
The following sentences are being added to the end of the second opening paragraph:
The Generalized Development Plan included in the Proffer Statement approved on May 28,
viewsheds. All other aspects of the GDP remain the same and in full force and effect.
Exhibit 4 shall now be known as Exhibit 3.
Exhibit 5 shall now be known as Exhibit 4.
Exhibits 6A and 6B shall now be known as Exhibits 5A and 5B respectively.
Revisions to Proffer 2.2
The language of Proffer 2.2 shall be replaced in its entirety with the following:
A combination of landscaping, earthen berms and fencing shall be either maintained or installed as
depicted and described on the Amended GDP around the Properties in the areas depicted on the
Amended GDP. Owner shall install berms in the areas where berms are depicted on said Amended
GDP. The berms for Berm D shall have a maximum height of 30 feet and a minimum height of 10 feet.
As depicted on the Amended GDP, the berms for Berm D shall be installed at specified heights. The
Amended GDP designates the berms for Berm D in four numbered sections. Section 1 shall be installed
to a height of 20 feet. Section 2 shall be installed to a height of 30 feet and not encroach on the
cemetery and/or stream. Section 3 shall be installed to a height of 10 feet. Section 4 shall be installed
to a minimum height of 20 feet. No spoil pile shall exceed the height of the highest berm north of
Chapel Road. Berm C which is located on the Property south of Chapel Road and north of Nieswander
Road shall be installed after permitting of the above-described Property for mining and at least two
years (24 calendar months) prior to the extraction of material for processing. The berms shall be
landscaped to minimize impacts to the viewshed of the surrounding community and shall be installed
after permitting of the Properties for mining and before any extraction of material for processing, and at
least two years (24 calendar months) prior to the extraction of material for processing and in the
Rezoning # 05-17 CARMEUSE LIME & STONE
July 17, 2018
Page 3
locations depicted on the Amended GDP. The landscaping shall have a mix of deciduous and
coniferous plantings placed in a random manner to be consistent with existing vegetation patterns.
Plantings will include a grass seed mix recommended by the National Park Service that is currently in
use at the adjacent Cedar Creek and Belle Grove National Historical Park. Owner shall adhere to the
screening requirements of the Frederick County Code. In addition to requirements of the Frederick
County Code, the Owner will take all appropriate measures to ensure survival of plantings. The
landscaping shall be subject to reasonable approval of the Zoning Administrator of Frederick County
and upon consultation with the State Forester. With respect to Berm A, located on Tax Parcel 90-A-2,
not owned by the Owner, the berm will be constructed by the Owner as the tenant under a 100-year
lease of Parcel 90-A-2, with authority under the lease to construct Berm A. There shall be no extraction
of material for processing outside the berms. The field between Berm D Section 1 and Westernview
shall not be used for parking or storage of mining equipment, and any vehicles and/or equipment shall
be staged in this area only while they are engaged in maintenance, monitoring and/or exploration
activities.
Staff Notes Berm Timing:
Berms A and Berm B (original Phase I) were to be installed within 10 years of the approval
o
of the proffer (2018).
Berms C and Berm D (original Phase II) were to be installed no later than 10 years prior to
o
the commencement of mining north of Chapel Road.
The proffer amendment removes the requirement that the berms be installed 10 years prior to
o
mining north of Chapel Road. The proposed amendment states that the berms would be
installed after permitting and two years prior to the extraction of material for processing.
Staff Notes Berm Heights:
Proffer 2.2 Berm D - Section 1 Berm Section 1 is the section south of the Westernview
o
Subdivision. The viewshed from the quarry to the adjacent Subdivision was originally
Proffer 2.2 Berm D - Section 2 This re
o
approved proffers. Proffer 2.2 Berm D - Section 3 The northern section of Chapel Road
Proffer 2.2 Berm D - Section 4 This revision p
o
approved proffers.
Staff Notes Berm Landscaping:
This proffer reduces the timing to include two years prior to extraction of materials, which
o
reduces the established timeline that would provide additional established landscaping
protection for adjacent properties.
New Proffer 2.4
Normal hours of operation for the portion of the Property north of Chapel Road shall be 6:00 a.m. to
10:00 p.m. Monday through Friday. No operations shall take place on any major holiday.
Rezoning # 05-17 CARMEUSE LIME & STONE
July 17, 2018
Page 4
Revision to Proffer 5.1
The following sentence shall be added to the end of Proffer 5.1:
In addition to the provisions set forth above, the Owner agrees to install at least one monitoring well
within six (6) months of the approval of this Amended Proffer Statement.
Revision to Proffer 7.1
The following paragraph shall be added to Proffer 7.1:
Provided Owner has received a written request from a property owner within fifteen hundred feet
r shall establish and maintain a notification
methodology that provides notice to the requesting property owner of any and all blasting that will
occur north of Chapel Road as part of the extraction of material for processing or site development.
Such methods may include, but not be limited to, telephone calls, text messages or emails.
Revision to Proffer 9.1:
The following sentences shall also be added to the end of Proffer 9.1:
A stationary seismograph reader shall be installed at a strategic location north of Chapel Road.
Such location shall be chosen in coordination with and at the direction of a licensed engineer well
versed in this function.
Revision to Proffer 12.1
The following sentence shall be added to the end of Proffer 12.1:
All lighting shall be turned off after working hours.
Revisions to Proffer 14.2
The following sentence shall be added to the end of Proffer 14.2:
The Owner also agrees that the existing fence line/tree line along Section 1 of Berm D will remain
and be maintained using best management and farm practices.
All other proffers remain generally consistent with the 2006 approved rezoning and proffer
statement.
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 5
Following the required public hearing, a decision regarding this rezoning application by the
Board of Supervisors would be appropriate. The Applicant should be prepared to adequately
address all concerns raised by the Board of Supervisors.
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 6
This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in making a decision on this
application. It may also be useful to others interested in this zoning matter. Unresolved issues
concerning this application are noted by Staff where relevant throughout this staff report.
Reviewed Action
Planning Commission:
11/15/17 Public Hearing Held; Postponed for 90 Days
Planning Commission:
02/21/18 Public Hearing Held; Recommended Denial
Board of Supervisors:
03/14/18 Public Hearing Held; Postponed for 30 Days
Board of Supervisors:
04/25/18 Public Hearing Postponed to May 23, 2018
Board of Supervisors:
05/23/18 Public Hearing Held; Postponed to June 13, 2018
Board of Supervisors:
06/13/18 Public Hearing Held; Postponed to July 25, 2018
Board of Supervisors:
07/25/18 Pending
PROPOSAL:
To rezone 394.2+/- acres from the EM (Extractive Manufacturing) District with proffers to
the EM (Extractive Manufacturing) District with revised proffers. The Middletown site was originally
rezoned to the EM (Extractive Manufacturing) District with Rezoning #03-06 for O-N Minerals
(Chemstone) which was approved in 2008.
MAGISTERIAL DISTRICT:
Back Creek
PROPERTY ID NUMBERS:
83-A-109 and 90-A-23 (portions of)
PROPERTY ZONING
: EM (Extractive Manufacturing) District
PRESENT USE:
Quarry and Undeveloped
ADJOINING PROPERTY ZONING & PRESENT USE:
North: RA (Rural Areas) Use: Residential
South: EM (Extractive Manufacturing) Use: Shenandoah County
East: RA (Rural Areas) Use: Residential/Agricultural
West: RA (Rural Areas) Use: Residential/Agricultural
PROPOSED USES:
Quarry
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 7
REVIEW EVALUATIONS:
Planning & Zoning:
1)Site History:
The original Frederick County zoning map (U.S.G.S. Middletown Quadrangle) identifies the
subject parcels as being zoned A-2 (Agricultural General).
districts were subsequently combined to form the RA (Rural Areas) District upon adoption of an
amendment to the Frederick County Zoning Ordinance on May 10, 1989. The corresponding
revision of the zoning map resulted in the re-mapping of the subject property and all other A-1
and A-2 zoned land to the RA District. The subject properties were rezoned to the EM
(Extractive Manufacturing) District with the approval of Rezoning #03-06 on May 28, 2008 (see
attached original proffers).
2)Comprehensive Plan:
The 2035 Comprehensive Plan is the guide for the future growth of Frederick County.
The 2035 Comprehensive Plan is an official public document that serves as the Community's
guide for making decisions regarding development, preservation, public facilities and other key
components of Community life. The primary goal of this plan is to protect and improve the
living environment within Frederick County. It is in essence a composition of policies used to
plan for the future physical development of Frederick County.
The Area Plans, Appendix I of the 2035 Comprehensive Plan, are the primary implementation
tool and will be instrumental to the future planning efforts of the County.
Land Use
The subject properties are located within the Rural Areas of Frederick County and are outside of
the limits of the Urban Development Area (UDA) and the Sewer and Water Service Area
(SWSA). The Rural Areas land use designation is defined in the Comprehensive Plan as all
areas outside of the designated Urban Development Area. The primary land uses in the Rural
Areas are agriculture and forests. The primary growth pattern consisting of widely scattered,
large lot residential development.
Transportation and Access
The Eastern Road Plan of the Comprehensive Policy Plan does not cover this portion of the
County. Per the 2006 rezoning, site access continues to be via the existing quarry entrance on
McCune Road (Route 757) See proffer 2.1
3)Historic:
The Historic Resources Advisory Board (HRAB) reviewed the original 2006 rezoning
application on December 20, 2005. This rezoning does not increase the historic impacts from
the original rezoning application. Staff would note that the Applicant has completed the 8-acre
land dedication to the Cedar Creek Battlefield Foundation as stated in proffer 3.1, as well as, the
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 8
Phase I Archeological Survey per proffer 3.2.
4)Proffer Statement Dated June 13, 2005; revised and approved May 28, 2008:
With this revision, the Applicant is proposing the addendum to the proffers:
Proffer Introduction
:
reby replaced with
The Generalized Development Plan has been revised as of February 14, 2018. An additional
sheet has been added to the
All references in the original Proffer Statement to the GDP are hereby replaced with Amended
GDP. The Amended GDP is new Exhibit 1.
The following plats have been deleted from Exhibit 2: GDP, Overall Plan, Phase I Plan, Phase II
Plan, Phase III Plan, Phase IV Plan, Viewshed 4B, Viewshed 5B, Viewshed 6, Viewshed 7 and
Viewshed 8.
The following plats have been added to Exhibit 2: North Viewshed 1, North Viewshed 2 and
North Viewshed 3.
The following sentences are being added to the end of the second opening paragraph:
The Generalized Development Plan included in the Proffer Statement approved on May 28,
viewsheds. All other aspects of the GDP remain the same and in full force and effect.
Exhibit 4 shall now be known as Exhibit 3.
Exhibit 5 shall now be known as Exhibit 4.
Exhibits 6A and 6B shall now be known as Exhibits 5A and 5B respectively.
Revisions to Proffer 2.2
The language of Proffer 2.2 shall be replaced in its entirety with the following:
A combination of landscaping, earthen berms and fencing shall be either maintained or installed as
Rezoning # 05-17 CARMEUSE LIME & STONE
July 17, 2018
Page 9
depicted and described on the Amended GDP around the Properties in the areas depicted on the Amended
GDP. Owner shall install berms in the areas where berms are depicted on said Amended GDP. The
berms for Berm D shall have a maximum height of 30 feet and a minimum height of 10 feet. As depicted
on the Amended GDP, the berms for Berm D shall be installed at specified heights. The Amended GDP
designates the berms for Berm D in four numbered sections. Section 1 shall be installed to a height of 20
feet. Section 2 shall be installed to a height of 30 feet and not encroach on the cemetery and/or stream.
Section 3 shall be installed to a height of 10 feet. Section 4 shall be installed to a minimum height of 20
feet. No spoil pile shall exceed the height of the highest berm north of Chapel Road. Berm C which is
located on the Property south of Chapel Road and north of Nieswander Road shall be installed after
permitting of the above-described Property for mining and at least two years (24 calendar months) prior
to the extraction of material for processing. The berms shall be landscaped to minimize impacts to the
viewshed of the surrounding community and shall be installed after permitting of the Properties for
mining and before any extraction of material for processing, and at least two years (24 calendar months)
prior to the extraction of material for processing and in the locations depicted on the Amended GDP. The
landscaping shall have a mix of deciduous and coniferous plantings placed in a random manner to be
consistent with existing vegetation patterns. Plantings will include a grass seed mix recommended by the
National Park Service that is currently in use at the adjacent Cedar Creek and Belle Grove National
Historical Park. Owner shall adhere to the screening requirements of the Frederick County Code. In
addition to requirements of the Frederick County Code, Owner will take all appropriate measures to
ensure survival of plantings. The landscaping shall be subject to reasonable approval of the Zoning
Administrator of Frederick County and upon consultation with the State Forester. With respect to Berm
A, located on Tax Parcel 90-A-2, not owned by the Owner, the berm will be constructed by the Owner as
the tenant under a 100-year lease of Parcel 90-A-2, with authority under the lease to construct Berm A.
There shall be no extraction of material for processing outside the berms. The field between Berm D
Section 1 and Westernview shall not be used for parking or storage of mining equipment, and any
vehicles and/or equipment shall be staged in this area only while they are engaged in maintenance,
monitoring and/or exploration activities.
Staff Notes Berm Timing:
Berms A and Berm B (original Phase I) were to be installed within 10 years of the approval
o
of the proffer (2018).
Berms C and Berm D (original Phase II) were to be installed no later than 10 years prior to
o
the commencement of mining north of Chapel Road.
The proffer amendment removes the requirement that the berms be installed 10 years prior to
o
mining north of Chapel Road. The proposed amendment states that the berms would be
installed after permitting and two years prior to the extraction of material for processing.
Staff Notes Berm Heights:
Proffer 2.2 Berm D - Section 1 Berm Section 1 is the section south of the Westernview
o
Subdivision. The viewshed from the quarry to the adjacent Subdivision was originally
Proffer 2.2 Berm D - Section 2
o
approved proffers. Proffer 2.2 Berm D - Section 3 The northern section of Chapel Road
e approved proffer.
Proffer 2.2 Berm D - Section 4
o
approved proffers.
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 10
Staff Notes Berm Landscaping:
This proffer reduces the timing to include two years prior to extraction of materials, which
o
reduces the established timeline that would provide additional established landscaping
protection for adjacent properties.
New Proffer 2.4
Normal hours of operation for the portion of the Property north of Chapel Road shall be 6:00 a.m. to
10:00 p.m. Monday through Friday. No operations shall take place on any major holiday.
Revision to Proffer 5.1
The following sentence shall be added to the end of Proffer 5.1:
In addition to the provisions set forth above, the Owner agrees to install at least one monitoring well
within six (6) months of the approval of this Amended Proffer Statement.
Revision to Proffer 7.1
The following paragraph shall be added to Proffer 7.1:
Provided Owner has received a written request from a property owner within fifteen hundred feet
methodology that provides notice to the requesting property owner of any and all blasting that will
occur north of Chapel Road as part of the extraction of material for processing or site development.
Such methods may include, but not be limited to, telephone calls, text messages or emails.
Revision to Proffer 9.1:
shall be replaced with
The following sentences shall also be added to the end of Proffer 9.1:
A stationary seismograph reader shall be installed at a strategic location north of Chapel Road. Such
location shall be chosen in coordination with and at the direction of a licensed engineer well versed in
this function.
Revision to Proffer 12.1
The following sentence shall be added to the end of Proffer 12.1:
All lighting shall be turned off after working hours.
Rezoning # 05-17 CARMEUSE LIME & STONE
July 17, 2018
Page 11
Revisions to Proffer 14.2
The following sentence shall be added to the end of Proffer 14.2:
The Owner also agrees that the existing fence line/tree line along Section 1 of Berm D will remain
and be maintained using best management and farm practices.
All other proffers remain generally consistent with the 2006 approved rezoning and proffer
statement.
Following the required public hearing, a decision regarding this rezoning application by the
Board of Supervisors would be appropriate. The Applicant should be prepared to adequately
address all concerns raised by the Board of Supervisors.
PLANNING COMMISSION SUMMARY AND ACTION FROM THE 11/15/17 MEETING:
Staff reported this is a request to amend the proffers associated with Rezoning #03-06 which was
approved in 2008. Staff continued, at that time 394.2+/-acres was rezoned from RA (Rural Areas)
District to EM (Extractive Manufacturing) District. Staff noted the Applicant is seeking to revise the
proffers pertaining to: Viewshed Plans, berm heights, installation timing, landscaping exhibit removal,
and cemetery access. A location map of the property was presented. Staff reported the amendment
seeks to remove the previously proffered Overall Plan, Phasing I, II, III and IV Plans, and the twelve
(12) Viewshed Plans which were all components of the General Development Plan (GDP). This
amendment seeks to eliminate these components and only utilize one (1) GDP. Staff presented the
GDP which is generally consistent with the outline of the previously approved GDP in regard to the
Berm locations on the properties. Staff reviewed the proffer revisions:
Viewshed Plans, Berm Heights, and Berm Installation Timing:
The viewshed plans from the approved rezoning depicted the proposed berm heights
that would provide screening and protection for surrounding properties.
Berm timing Berms A and B were to be installed within 10 years of rezoning
approval (installation by 2018). Berms C and D were to be installed no later than 10
years before the commencement of mining north of Chapel Road.
This amendment removes all minimum/maximum heights and timing is now prior to
the commencement of any extraction of materials.
Cemetery Access:
Amendment seeks to eliminate the Marsh Brook Lane access and provide a new right-
of-way that would provide access to the cemetery via Chapel Road.
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 12
(the approved rezoning stated that the Applicant would improve the
Marsh Brook Lane access within 12 months of completion of the
cemetery restoration)
The proposed amendment does not contain a timeline for the installation of this
accessway and does not contain a backup if agency approval cannot be obtained for the
new access point on Chapel Road.
Staff noted it appears this proposed proffer amendment will have a great impact on the surrounding
residential properties and the Applicant has not provided justification that the berm revisions and the
changes requested would mitigate the impacts on the surrounding properties.
A Commissioner inquired about the rights to water supply in paragraph 4.1 of the proffers. Staff
explained that a proffer amendment was received from Mr. Ty Lawson prior to the meeting. Staff and
the County Attorney were not able to review these prior to this meeting and cannot comment on them at
this time. A Commissioner asked how long the Applicant has been working with Staff on these
revisions. Staff noted in June 2017 comments were provided to the Applicant. A Commissioner
inquired, in the original proffers there were commitments as far as pre-blast surveys of the properties
surrounding the quarry; who was responsible in making sure the Applicant performed those
commitments that were agreed to in the original rezoning; is the County involved in that, specifically
the surveys concerning property conditions, water well conditions, and seismic monitoring. Staff
that those proffers are not being fulfilled or there is a complaint, that proffer compliance would be
investigated and determined if the proffers are being met or not. A Commissioner asked if Staff had
received comments from residents that the proffers were not implemented as originally agreed to. Staff
commented no, not at this time. A Commissioner commented that if the proposed amendment were
approved, that the height of the berms would be up to the Applicant. Staff stated that is correct, under
the proposed amendment the berm height would be at the Applicants discretion and they eliminated the
landscaping detail. The Commissioner commented the current approval offers more to work with; the
new proposal has no specificity. A Commissioner commented for clarity and should ignore what was
submitted just a few hours ago and focus on what is in the agenda. A Commissioner asked how close
the berms on the north end are from the residential strip of community housing there. Staff deferred this
question to the Applicant as to if they have an exact distance planned for the old and new proffers.
Mr. Thomas (Ty) Moore Lawson, P.C. with Lawson & Silek, P.L.C representing the Applicant came
forward. Mr. Lawson reported this proffer amendment is to specifically address the berms; on the north
end of the property. In response to a Commissioner, Mr. Lawson noted when this exercise was started it
was written in a way to just focus on things they wanted to change, as things developed it was pointed
out with this rezoning being relatively old that a lot has been completed, therefore what has been
accomplished should be considered. Mr. Lawson continued, 36+ acres has been conveyed to the Cedar
Creek Battlefield and Article 4 references two old agreements that existed with the Sanitation Authority
in 2005; those agreements were terminated, and a new agreement was put in place. Mr. Lawson
reviewed the proffer update that was sent to Staff just prior to this meeting: 8-acre historical reserve
grew to 36-acres; Phase I archeological study; Two (2) cemeteries were restored; ground water labeled
as completed but under way; pre-blast surveys are ongoing (have contacted 105 families); noise
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 13
requirements are the same; well monitoring is ongoing; phasing of berms A and B are complete.
Regarding the berms Mr. Lawson explained the intent now is to have irregular berms in height and
different vegetation. Mr. Lawson provided photos of existing berms and of new proposed berms
placing berms behind vegetation. Mr. Lawson addressed the question of timing for the berms; the
existing proffers states the berms be installed ten (10) years prior to mining activities, this has been
removed and replaced with commencement and behind the tree lines so there is less disturbance. Mr.
Lawson provided photos of the viewshed and the GDP. A Commissioner inquired why the berms are
being located behind the vegetation. Mr. Lawson commented the Applicant has a better idea where
most of the stone is underground therefore the point is to be able to install the berms 100 ft. off the
property line in turn making the impacts less severe. The Commissioner commented, to simplify;
relocating the berms now depends on where the high-quality mineral is to be mined. Mr. Lawson stated
that is partially correct; the other part is a fresh set of eyes reviewed this and determined relocation
would be better for neighbors. The Commissioner noted relocating the berms have no bearing on the
height of the berms. Mr. Lawson explained there was not a requirement to make the berms 30 ft., but
somehow became part of the public process; this is not something the company wanted, and the intent is
to vary the berm sizes.
A Commissioner requested clarification that the 85 property owners within the property boundary have
been contacted regarding pre-blast surveys. Mr. Lawson noted the Applicant contacted all property
owners, also offered pre-
advantage of this and others have not. The Commissioner asked if someone comes forth years down the
road with problems on their property or structure, how would Chemstone defend this. Mr. Lawson
explained the property owners should take advantage of these offers in advance therefore having
something to go by. Mr. Lawson noted the existing proffers do not change obligations to one another.
Complaints and questions are addressed by the company at all times. The Commissioner asked how
often seismic waves are monitored for the 85 properties. Mr. Lawson stated the monitoring is ongoing.
Mr. Mark Basel, Site Production Manager at the Middletown, Virginia operation came forward and
reported the operation at Chemstone monitors every blast. They have permanent seismic graphs at three
(3) different residences toward the southern end of the property. Mr. Basel noted currently there are no
monitors at the northern end where there is no mining yet; they do place mobile units if necessary. A
Commissioner inquired has there been any reported impacts/damages from blasting. Mr. Basel
commented to his knowledge they have not been out of compliance; they do get calls if the blast is felt
stronger than normal. He reiterated, they do monitor all blasts.
There were nine (9) citizens that spoke in opposition of this rezoning. The concerns shared were
similar: delay action on this item, no contact from the Applicant regarding well and pre-blast surveys,
berms would not provide enough protection and language in the proffers very ambiguous.
Mr. Lawson responded to comments: the drawings/maps are scaled, it is approximately 100 feet from
the property line under the existing proffers, the Applicant has copies of notifications/letters that were
sent to property owners for pre-blast surveys and well monitoring.
A Commissioner reminded everyone this item is not about the current land use which was previously
approved; it pertains to the proffers being amended. He commented, he is agreeable to a delay on this
and noted community engagement is extremely important. A Commissioner commented, this item must
Rezoning # 05-17 CARMEUSE LIME & STONE
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Page 14
be acted on in a timely manner and cannot be moved to Spring 2018; he agrees to a postponement. The
Commissioner continued, he urges the citizens to take advantage of the offer made by Carmeuse for
pre-blast surveys and well monitoring so there can be a base starting point down the road. He
concluded, the language is very ambiguous and vague, the Applicant needs to put back in the drawings
and examples and put things in writing so that it is very clear.
A motion was made, seconded, and unanimously passed to recommend postponement for 90 days.
(Note: Commissioners Unger and Cline were absent from the meeting)
PLANNING COMMISSION SUMMARY AND ACTION FROM THE 02/21/18 MEETING:
Staff reported this is a request to amend the proffers associated with Rezoning #03-06 which was
approved in 2008. Ms. Perkins continued, this request was postponed for 90 days at the Planning
proposal with neighbors. Staff explained the Applicant is seeking to revise the proffers pertaining to:
Viewshed Plan, berm heights, installation timing, Landscaping exhibit removal and Cemetery access.
Staff compared the proffers that have been approved to the amended proffers, dated February 14, 2018:
The appr
proffered viewshed plans. The revision includes 3 viewshed plats that only show proposed
berm details north of Chapel Road.
Berm Heights Berm D (north of Chapel Road); berm adjacent to the Westernview Subdivision
Berm Heights Berms C & D; removes the berm detail south of Chapel Road and the Northern
Berm Timing Berms C & D were proffered to be installed no later than 10 years prior to the
commencement of mining north of Chapel Road. The revision proposes Berms C & D to be
installed after the permitting process of the properties for mining and before any extraction of
material for processing.
Proffer 2.2
for the complete elimination of all berms and only fencing provided.
Cemetery Access: Seeks to relocate the Marsh Brook Lane access to Chapel Road. The
approved proffer stated that the Applica
access and that the Applicant would provide continued maintenance. The proposed proffer
states that the owner would relocate the ROW; this proffer is ambiguous as to whether the
Applicant will be building a ROW for access or just relocating the ROW. It was noted this also
Rezoning # 05-17 CARMEUSE LIME & STONE
July 17, 2018
Page 15
removes the timeline (12 months from cemetery restoration) therefore this is no trigger for the
completion of this relocation.
Site Access Clarification: Staff noted the approved proff
questions regarding site access directly via Chapel Road; Proffer 2.1 prohibits access to Chapel
Road for quarry operations. The proffered GDP indicates a proposed tunnel under Chapel
Road.
Staff concluded it appears this proposed proffer amendment will have a great impact on the surrounding
residential properties and the Applicant has not provided justification that the berm revisions and the
changes requested would mitigate the impacts on the surrounding properties.
Mr. Michael Wilmoth from Carmeuse presented a brief overview of what has transpired since the
November meeting: held two community meetings; had face to face meetings with residents; handled
numerous phone calls. He provided a presentation of the revised proffers and various mapping.
A Commission Member inquired if the open field on the combined comparison will be mined in the
future. Mr. Wilmoth stated not at this time. A Commission Member suggested possibly zoning this
piece back to RA. Mr. Ty Lawson, representing the Applicant noted there is no intent at this time.
A Commission Member suggested, if the berms are behind the tree line, why not include map or
and could be include in proffer 2.2. The
Commissioner noted the wording in proffer 2.2 can be easily misinterpreted. A Commission Member
suggested the wording be changed to offer protection to residents in the future. Mr. George McKotch of
Carmeuse came forward and provided information pertaining to the berms and future mining. A
Commission Member reminded everyone that is what is presented in the agenda is what is to be voted
on this evening.
The Public Hearing was opened and six (6) residents came forward and shared their opposition to this
rezoning citing concerns such as: requests not fully addressed by Carmeuse; community meetings did
not involve everyone, truck traffic on roads, all berms to be 30 feet and residents losing property value.
A Commission Member commented the items presented tonight are not acceptable, he sees no reason to
reduce the height of the berms and the residents are not satisfied with any of the changes. Mr. Lawson
noted the mission was to meet with neighbors; the berm height was the majority of the discussion and
they received conflicting requests from neighbors. Mr. Lawson concluded this item needs to move
forward and there is no time for a delay request.
A motion was made to deny this request, seconded, and unanimously recommended for denial.
(Commissioner Mohn was absent from the meeting)
BOARD OF SUPERVIORS SUMMARY AND ACTION FROM THE 03/14/18 MEETING:
Staff provided an overview of the application and the revisions requested by the Applicant. Thomas
Moore Lawson, representing Carmeuse, introduced Michael Wilmoth of Carmeuse who provided an
overview of the request. Mr. Wilmoth said the company met with the neighbors of the property in
question and the consensus was that moving the berm and changing the berm timeline were good
Rezoning # 05-17 CARMEUSE LIME & STONE
July 17, 2018
Page 16
things. He discussed a list of 11 items that were requested by the neighbors saying Carmeuse has been
able to agree to eight of them. Mr. Lawson proceed to provide additional information and an overview
of their request. Dr. Clarence R. Geier then discussed the Phase I Archeological Survey which was
conducted on the property.
Thirteen citizens spoke during the public hearing. Mr. Lawson responded to the public hearing
comments and
there have been seven amendments to the proffers and highlighted the proposed changes.
The item was postponed to the April 25, 2018 meeting with a continued public hearing.
BOARD OF SUPERVIORS SUMMARY AND ACTION FROM THE 04/25/18 MEETING:
The item was postponed to the May 23, 2018 meeting with a continued public hearing.
BOARD OF SUPERVIORS SUMMARY AND ACTION FROM THE 05/23/18 MEETING:
Staff provided an overview of the application and the revisions requested by the Applicant. The
Applicant provided a presentation and provided an overview of the revised proffers presented to the
Board at the meeting. The Board of Supervisors requested clarification on the hours of operation; the
Applicant agreed to modify the hours of operation to remove the allowance for changes due to demand.
Six citizens spoke during the public hearing. The item was postponed to the June 13, 2018 meeting
with a continued public hearing to allow additional time to review the revised proffers present to the
Board of Supervisors at their May 23, 2018 meeting.
BOARD OF SUPERVIORS SUMMARY AND ACTION FROM THE 06/13/18 MEETING:
The item was postponed to the July 25, 2018 meeting with a continued public hearing.
Following the required public hearing, a decision regarding this rezoning application by the
Board of Supervisors would be appropriate. The Applicant should be prepared to adequately
address all concerns raised by the Board of Supervisors.
ST 627
REZ # 05 - 17
O-N Minerals (Chemstone) Co.
PINs:
ST
ST
627
83 - A - 109, 90 - A - 23
759
ST
625
Rezoning from EM to EM
Zoning Map
ST
622
ST
REZ #05-17
633
83 A 109
ST
627
ST
625
REZ #05-17
83 A 109
83 A 109
ST
627
ST
ST
625
T-627
ST
REZ #05-17
ST
757
842
Middletown
90 A 23
ST
624
ST
625
SHENANDOAH
ST
ST
COUNTY
624
627
VIRGINIA
ST
624
§
¨¦
81
§
¨¦
01
81
ST
11
ST
842
727
Applications
Sewer and Water Service Area
Parcels
B1 (Neighborhood Business District)
B2 (General Business District)
B3 (Industrial Transition District)
EM (Extractive Manufacturing District)
§
¨¦
WARREN
81
HE (Higher Education District)
COUNTY
M1 (Light Industrial District)
REZ # 05 - 17
Note:
M2 (Industrial General District)
Frederick County Dept of
O-N Minerals
MH1 (Mobile Home Community District)
Planning & Development
I
MS (Medical Support District)
(Chemstone) Co.
107 N Kent St
Suite 202
OM (Office - Manufacturing Park)
PINs:
Winchester, VA 22601
R4 (Residential Planned Community District)
83 - A - 109, 90 - A - 23
540 - 665 - 5651
Rezoning from EM to EM
R5 (Residential Recreational Community District)
Map Created: October 18, 2017
Zoning Map
RA (Rural Areas District)
Staff: cperkins
RP (Residential Performance District)
01,6003,2006,400Feet
ST 627
REZ # 05 - 17
O-N Minerals (Chemstone) Co.
PINs:
ST
ST
627
83 - A - 109, 90 - A - 23
759
ST
625
Rezoning from EM to EM
Location Map
ST
622
ST
REZ #05-17
633
83 A 109
ST
627
ST
625
REZ #05-17
83 A 109
83 A 109
ST
627
ST
ST
625
T-627
ST
REZ #05-17
ST
757
842
Middletown
90 A 23
ST
624
ST
625
SHENANDOAH
ST
ST
COUNTY
624
627
VIRGINIA
ST
624
§
¨¦
81
§
¨¦
01
81
ST
11
ST
842
727
§
¨¦
WARREN
81
COUNTY
REZ # 05 - 17
Note:
Frederick County Dept of
O-N Minerals
Planning & Development
I
(Chemstone) Co.
107 N Kent St
Suite 202
PINs:
Winchester, VA 22601
83 - A - 109, 90 - A - 23
540 - 665 - 5651
Rezoning from EM to EM
Applications
Map Created: October 18, 2017
Location Map
Sewer and Water Service Area
Staff: cperkins
Parcels
01,6003,2006,400Feet
ST
ST
REZ # 05 - 17
638
622
O-N Minerals (Chemstone) Co.
PINs:ST
627
ST
83 - A - 109, 90 - A - 23
ST
625
759
Rezoning from EM to EM
Long Range Land Use Map
ST
622
REZ #05-17
ST
633
83 A 109
ST
627
ST
625
REZ #05-17
83 A 109
83 A 109
ST
627
Applications
ST
ST
Sewer and Water Service Area
625
T-627
ST
ST
REZ #05-17
Parcels
842
757
ST
90 A 23 Middletown
Long Range Land Use
624
Residential
SHENANDOAH ST
625
COUNTY
Neighborhood Village
ST
VIRGINIA
624 ST
Urban Center
627
Mobile Home Community ST
624
§
¨¦
Business
81
§
¨¦
01
Highway Commercial
81
ST
11
Mixed-Use
ST
842
727
Mixed Use Commercial/Office
Mixed Use Industrial/Office
Industrial
Warehouse
Heavy Industrial
Extractive Mining
Commercial Rec
Rural Community Center
Fire & Rescue
Sensitive Natural Areas
Institutional
WARREN
Planned Unit Development
COUNTY
VIRGINIA
Park
Recreation
School
Employment
§
¨¦
81
Airport Support Area
B2 / B3
REZ # 05 - 17
Note:
Residential, 4 u/a
Frederick County Dept of
O-N Minerals
High-Density Residential, 6 u/a
Planning & Development
I
High-Density Residential, 12-16 u/a
(Chemstone) Co.
107 N Kent St
Suite 202
Rural Area
PINs:
Winchester, VA 22601
Interstate Buffer
83 - A - 109, 90 - A - 23
540 - 665 - 5651
Rezoning from EM to EM
Landfill Support Area
Map Created: October 18, 2017
Long Range Land Use Map
Natural Resources & Recreation
Staff: cperkins
Environmental & Recreational Resources
02,0004,0008,000Feet
FIRST AMENDMENT TO PROFFER STATEMENT
(amendment dated July __, 2018)
REZONING: RZ# 03-06
Rural Areas (RA) to Extractive Manufacturing (EM)
PROPERTY: 394.2 Acres +/-;
Portions of Tax Map Parcels 83-A--A-23
RECORD OWNER: O-N Minerals (Chemstone) Company
APPLICANT: O-N Minerals (Chemstone) Company
PROJECT NAME: Chemstone-Middletown
ORIGINAL DATE
OF PROFFERS: May 22, 2008
The undersigned Owner hereby submits its First Amendment to Proffer Statement which states
that the following conditions, which to the extent amended, shall supersede all other proffers on
the Properties that may have been made prior hereto. In the event that the above-referenced First
Amendment to Proffer Statement is not granted as applied for by the Owner, this First Amendment
to Proffer Statement shall be deemed withdrawn and shall be null and void.
The following sections of the Proffer Statement dated May 22, 2008 are amended as follows:
All rthroughout the Proffer Statement are hereby replaced with
with
to
The Generalized Development Plan has been revised as of February 14, 2018. An
Plan and the Generalized Development Plan Attachment are collectively referred to as the
replaced with Amended GDP. The Amended GDP is new Exhibit 1.
The following plats have been deleted from Exhibit 2: GDP, Overall Plan, Phase I Plan,
Phase II Plan, Phase III Plan, Phase IV Plan, Viewshed 4B, Viewshed 5B, Viewshed 6,
Viewshed 7 and Viewshed 8.
The following plats have been added to Exhibit 2 and are attached: North Viewshed 1,
North Viewshed 2 and North Viewshed 3.
The following sentences are being added to the end of the second opening paragraph:
The Generalized Development Plan included in the Proffer Statement approved on May
and
viewsheds. All other aspects of the GDP remain the same and in full force and effect.
Exhibit 4 shall now be known as Exhibit 3.
Exhibit 5 shall now be known as Exhibit 4.
Exhibits 6A and 6B shall now be known as Exhibits 5A and 5B respectively.
Revisions to Proffer 2.2
The language of Proffer 2.2 is replaced in its entirety with the following:
A combination of landscaping, earthen berms and fencing shall be either maintained or
installed as depicted and described on the Amended GDP around the Properties in the areas
depicted on the Amended GDP. Owner shall install berms in the areas where berms are depicted
on said Amended GDP. The berms for Berm D shall have a maximum height of 30 feet and a
minimum height of 10 feet. As depicted on the Amended GDP, the berms for Berm D shall be
installed at specified heights. The Amended GDP designates the berms for Berm D in four
numbered sections. Section 1 shall be installed to a height of 20 feet. Section 2 shall be installed
to a height of 30 feet and not encroach on the cemetery and/or stream. Section 3 shall be installed
to a height of 10 feet. Section 4 shall be installed to a minimum height of 20 feet. No spoil pile
shall exceed the height of the highest berm north of Chapel Road. Berm C which is located on the
Property south of Chapel Road and north of Nieswander Road shall be installed after permitting
of the above-described Property for mining and at least two years (24 calendar months) prior to
the extraction of material for processing. The berms shall be landscaped to minimize impacts to
the viewshed of the surrounding community and shall be installed after permitting of the Properties
for mining at least two years (24 calendar months) prior to the extraction of material for processing
and in the locations depicted on the Amended GDP. The landscaping shall have a mix of deciduous
and coniferous plantings placed in a random manner to be consistent with existing vegetation
patterns. Plantings will include a grass seed mix recommended by the National Park Service that
is currently in use at the adjacent Cedar Creek and Belle Grove National Historical Park. Owner
shall adhere to the screening requirements of the Frederick County Code. In addition to
requirements of the Frederick County Code, Owner will take all appropriate measures to ensure
survival of plantings. The landscaping shall be subject to reasonable approval of the Zoning
Administrator of Frederick County and upon consultation with the State Forester. With respect to
Berm A, located on Tax Parcel 90-A-2, not owned by the Owner, the berm will be constructed by
the Owner as the tenant under a 100-year lease of Parcel 90-A-2, with authority under the lease to
construct Berm A. There shall be no extraction of material for processing outside the berms. The
field between Berm D Section 1 and Westernview shall not be used for parking or storage of
2
mining equipment, and any vehicles and/or equipment shall be staged in this area only while they
are engaged in maintenance, monitoring and/or exploration activities.
New Proffer 2.4
Normal hours of operation for the portion of the Property north of Chapel Road shall be
6:00 a.m. to 10:00 p.m. Monday through Friday. No operations shall take place on any major
holiday.
Revision to Proffer 5.1
The following sentence is added to the end of Proffer 5.1:
In addition to the provisions set forth above, the Owner agrees to install at least one
monitoring well within six (6) months of the approval of this Amended Proffer Statement.
Revision to Proffer 7.1
The following paragraph is added to Proffer 7.1:
Provided Owner has received a written request from a property owner within fifteen
lish and maintain a
notification methodology that provides notice to the requesting property owner of any and all
blasting that will occur north of Chapel Road as part of the extraction of material for processing
or site development. Such methods may include, but not be limited to, telephone calls, text
messages or emails.
Revision to Proffer 9.1:
is replaced
The following sentences are added to the end of Proffer 9.1:
A stationary seismograph reader shall be installed at a strategic location north of Chapel
Road. Such location shall be chosen in coordination with and at the direction of a licensed engineer
well versed in this function.
Revision to Proffer 12.1
The following sentence is added to the end of Proffer 12.1:
All lighting shall be turned off after working hours.
Revisions to Proffer 14.2
3
The following sentence is added to the end of Proffer 14.2:
The Owner also agrees that the existing fence line/tree line along Section 1 of Berm D will
remain and be maintained using best management and farm practices.
Respectfully submitted,
O-N MINERALS (CHEMSTONE) COMPANY
By: Ian Karkaria
Its: Director of Operations, Eastern Region
______________________________________
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To-wit:
The foregoing instrument was acknowledged before me this _____ day of ___________,
2018, by Ian Karkaria, Director of Operations, Eastern Region of O-N Minerals (Chemstone)
Company.
____________________________________
NOTARY PUBLIC
My commission expires: ______________________
Registration number:
4