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HomeMy WebLinkAbout05-17 PC Staff Report - February 2018REZONING APPLICATION #05-17 O-N MINERALS/dba CARMEUSE LIME & STONE Staff Report for the Planning Commission Prepared: February 5, 2018 Staff Contact: Candice E. Perkins, AICP, CZA, Assistant Director Reviewed Action Planning Commission: 11/15/17 Public Hearing Held; Tabled 90 Days Planning Commission: 02/21/18 Pending Board of Supervisors: 03/14/18 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. The Applicant is seeking to revise the proffers pertaining to viewshed plans, berms, landscaping and cemetery access. 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 & STAFF CONCLUSION FOR THE 02/21/18 PLANNING COMMISSION MEETING: The purpose of this application is to request a proffer amendment to Rezoning #03-06 for O-N Minerals (Chemstone) which was approved in 2008. Rezoning #03-06 rezoned 394.2+/- acres from the EM (Extractive Manufacturing) District with proffers. This amendment seeks to remove the previously proffered Overall Plan, Phasing I, II, III and IV Plans and the twelve viewshed plans which were all components of the General Development Plan (GDP). This rezoning seeks to eliminate these components and only utilize one GDP sheet and three viewshed plats. The proposed amendment also proposes to add a caveat that earthen berms and or fencing would be installed, this revision could possibly eliminate all berms in lieu of fencing. The amendment proposes revise the timing of the installation of the berms and seeks to removes the landscaping exhibit for the berms. The amendment also seeks to revises the entrance to one of the two cemeteries located on the site and removes the water supply and reclamation proffers. All other proffers remain generally consistent with the 2006 approved rezoning and proffer statement. Elements of the rezoning application have been identified that should be carefully evaluated to ensure that they fully address the impacts associated with this amendment. The Planning Commission should pay particular attention to the berm height and fencing allowance and the berm installation timing. Following the required public hearing, a recommendation regarding this rezoning application to the Board of Supervisors would be appropriate. The Applicant should be prepared to adequately address all concerns raised by the Planning Commission. Rezoning # 05-17 CARMEUSE LIME & STONE February 5, 2018 Page 2 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; Tabled 90 Days Planning Commission: 02/21/18 Pending Board of Supervisors: 03/14/18 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. The Applicant is seeking to revise the proffers pertaining to the to viewshed plans, berms, landscaping and cemetery access. 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 February 5, 2018 Page 3 REVIEW EVALUATIONS: Frederick County Attorney: Please see attached email from Roderick B. Williams, County Attorney, dated June 26, 2017. 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). The County’s agricultural zoning 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 Rezoning # 05-17 CARMEUSE LIME & STONE February 5, 2018 Page 4 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 Phase I Archeological Survey per proffer 3.2. 4) Proffer Statement – Dated June 13, 2005; revised January 31, 2018; revised February 14, 2018 Proposed revisions from the approved proffer statement (please see attached redline copy of the proffer statement): • Proffer Introduction: This proffer amendment proposes to remove the previously proffered Overall Plan, Phasing I, II, III and IV Plans and the twelve viewshed plans. The amended proffer proposes to utilize a Generalized Development Plan and three updated viewshed plats (Viewshed 1, 2 and 3). o The Phasing I, II, III and IV Plans of the GDP from the approved rezoning show a phasing sequence for the development of the property. While the phasing plans that were part of the proffered GDP are proposed to be removed with this amendment, the phasing text has been retained. o All viewshed plans south of Chapel Road are proposed to be eliminated with this amendment. Viewshed 7 from the approved plan included viewshed plans for the area north and south of Chapel Road. The berms along both sides of Chapel Road were proposed to be 10’ each. o The proposed viewshed plats show the existing proffered berms as well as the proposed berms. The berms proposed with the amendment are significantly lower than the proffered berms. The viewshed from the quarry to the adjacent subdivision (Westernview) was originally proffered at a 30’ height ad depicted on Viewshed 7 from the approved proffer but is proposed to be significantly reduced. Staff would note that the applicant shows the berm being moved closer to the quarry pit and further away from the residential. ▪ Staff comment – The reduction in berm heights and the elimination of the viewshed plan for the Chapel Road area could greatly impact the surrounding residential properties as well as the viewshed and appearance of the Chapel Road area. • Site Development – Proffer 2.2 - Berms- This proffer amendment proposes to change the text pertaining to the berms, revises the timing of the installation of the berms, removes the landscaping exhibit and changes the approval of the landscaping utilized on the berms. Rezoning # 05-17 CARMEUSE LIME & STONE February 5, 2018 Page 5 o Berms were proffered with a maximum height of 30 feet and a minimum height of 10 feet as depicted on the twelve viewshed plans. The proposed proffer includes three proposed viewshed plats and proposes a change to possibly eliminate the berms and provide only fencing. ▪ Staff comment – The proposed proffer now states that earthen berms “and/or” fencing shall be installed. The wording of this proffer would allow for the berms to be eliminated completely and only fencing provided. Staff has concern regarding the wording of this proffer as the elimination of the berms would greatly impact the residential properties. o Berm Installation - Berm A and Berm B were to be installed within 10 years of the approval of the proffer (2018) and Berm C and Berm D were to be installed no later than 10 years prior to the commencement of mining north of Chapel Road. The proffer now states that the berms will be installed after the permitting of the properties for mining and before any extraction of material for processing”. ▪ Staff comment – The approved proffer provided time for the plantings to become established on the berms prior to mining activities. This proffer revises the timing to incude one year prior to extraction of materials, which reduces the established timeline that would provide additional protection for adjacent properties. o The amendment removes Exhibit 3 which pertained to the description of the plants to be installed on the berms. The approved proffer statement requires the berm plantings to “a mix of deciduous and coniferous plantings placed in a random manner to be consistent with existing vegetation patterns” and would be subject to reasonable approval by the Zoning Administrator and the state forester. The proposed proffer states “plantings will include a seed mix recommended by the National Park Service that is currently in use at the adjacent Cedar Creek and Bell Grove National Historic Park”. • Historic Resources – Proffer 3.3 – This proposed amendment seeks to relocate the access for the second cemetery located on parcel 109. Access to this cemetery is currently provided via Marsh Book Lane which is a private right-of-way. The approved rezoning stated that the applicant would improve this right-of-way within 12 months of VDOT approval. o This proffer amendment seeks to eliminate the Marsh Brook Lane access and provide a new right-of-way that would provide access to the cemetery to Chapel Road. • Rights to Water Supply – Proffer 4. This proffer is proposed to be eliminated. Rezoning # 05-17 CARMEUSE LIME & STONE February 5, 2018 Page 6 • Reclamation – Proffer 10. This proffer is proposed to be eliminated. All other proffers remain generally consistent with the 2006 approved rezoning and proffer statement. 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 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 and 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 heights ranged from 10’ to 30’ as depicted on the viewshed plans. • 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. (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 Rezoning # 05-17 CARMEUSE LIME & STONE February 5, 2018 Page 7 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 reported it is the Applicant’s responsibility to make sure they are fulfilling their proffers; should it arise 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 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. Rezoning # 05-17 CARMEUSE LIME & STONE February 5, 2018 Page 8 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-blast surveys and well monitoring at the Applicant’s expense; some have taken 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. He 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. He 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 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) EXECUTIVE SUMMARY & STAFF CONCLUSION FOR THE 02/21/18 PLANNING COMMISSION MEETING: The purpose of this application is to request a proffer amendment to Rezoning #03-06 for O-N Minerals (Chemstone) which was approved in 2008. Rezoning #03-06 rezoned 394.2+/- acres from the EM (Extractive Manufacturing) District with proffers. Rezoning # 05-17 CARMEUSE LIME & STONE February 5, 2018 Page 9 This amendment seeks to remove the previously proffered Overall Plan, Phasing I, II, III and IV Plans and the twelve viewshed plans which were all components of the General Development Plan (GDP). This rezoning seeks to eliminate these components and only utilize one GDP sheet and three viewshed plats. The proposed amendment also proposes to add a caveat that earthen berms and or fencing would be installed, this revision could possibly eliminate all berms in lieu of fencing. The amendment proposes revise the timing of the installation of the berms and seeks to removes the landscaping exhibit for the berms. The amendment also seeks to revises the entrance to one of the two cemeteries located on the site and removes the water supply and reclamation proffers. All other proffers remain generally consistent with the 2006 approved rezoning and proffer statement. Elements of the rezoning application have been identified that should be carefully evaluated to ensure that they fully address the impacts associated with this amendment. The Planning Commission should pay particular attention to the berm height and fencing allowance and the berm installation timing. Following the required public hearing, a recommendation regarding this rezoning application to the Board of Supervisors would be appropriate. The Applicant should be prepared to adequately address all concerns raised by the Planning Commission.