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PC 02-21-18 Meeting MinutesMEETING MINUTES OF THE FREDERICK COUNTY PLANNING COMMISSION Held in the Board Room of the Frederick County Administration Building at 107 North Kent Street in Winchester, Virginia on February 21, 2018 PRESENT: Kevin Kenney, Chairman; Roger L. Thomas, Vice Chairman/Opequon District; Robert S. Molden, Opequon District; Gary R. Oates, Stonewall District; William H. Cline, Stonewall District; Greg L. Unger, Back Creek District; J. Rhodes Marston, Back Creek District; Lawrence R. Ambrogi, Shawnee District; H. Paige Manuel, Shawnee District; Charles E. Triplett, Gainesboro District; June M. Wilmot, Member at Large; Kathleen Dawson, Red Bud District; Roderick B. Williams, County Attorney. ABSENT: Christopher M. Mohn, Red Bud District STAFF PRESENT: Michael T. Ruddy, Director; Candice E. Perkins, Assistant Director; Mark A. Cheran, Zoning and Subdivision Administrator; Shannon L. Conner, Administrative Assistant. CALL TO ORDER Chairman Kenney called the February 21, 2018 meeting of the Frederick County Planning Commission to order at 7:00 p.m. Chairman Kenney commenced the meeting by inviting everyone to join in a moment of silence. ADOPTION OF AGENDA Upon motion made by Commissioner Oates and seconded by Commissioner Cline, the Planning Commission unanimously adopted the agenda for this evening's meeting. MINUTES Upon motion made by Commissioner Oates and seconded by Commissioner Thomas, the Planning Commission unanimously adopted the minutes from the January 17, 2018 meeting. Frederick County Planning Commission Page 3514 Minutes of February 21, 2018 COMMITTEE REPORTS Agricultural District Advisory Committee — Mtg. 01/23/18 Commissioner Cline reported the committee unanimously sent forward two (2) requests to add parcels to the South Frederick Agricultural and Forestal District. Frederick Water Commissioner Oates provided a synopsis: On February 12, 2018 the court struck two of the Town of Stephens City's experts and part of the proposal testimony of the third expert. The Court dismissed the portion of the Town's complaint regarding alleged "billing errors". On February 15, 2018, Frederick Water (then Frederick County Sanitation Authority) filed counterclaims against the Town of Stephens City, Virginia. The suit alleges that as of February 9, 2018, the Town owed Frederick Water over $5.7 million in unpaid invoices and penalties for water and wastewater services provided after the Town stopped paying in March 2015. The suit alleges that records produced by the Town appear to indicate that it does not have the cash reserves or the cash flow from operations that would enable the Town to pay the outstanding balance as alleged. The suit contains seven (7) counts, most notably the demand for $5.7 million allegedly owed, a request to the Court to suspend water service to the Town requiring them to buy water from another provider, the motion for the appointment of a special receiver to take charge of certain Town accounts, and request to declare the Town's water protection ordinance unconstitutional as applied to the Bartonsville Well. City of Winchester — 02/20/18 Commissioner Wolfe, Winchester City Planning Commission Liaison, reported the commission moved forward two (2) extended stay units, a site plan for a driveway on Linden Drive, and text amendment for short term rentals. CITIZEN COMMENTS Chairman Kenney called for citizen comments on any subject not currently on the Planning Commission's agenda or any item that is solely a discussion item for the Commission. No one came forward to speak and Chairman Kenney closed the citizen comments portion of the meeting. Frederick County Planning Commission Page 3515 Minutes of February 21, 2018 PUBLIC HEARING Rezoning #05-17 for O.N. Minerals (Chemstone) d/b/a Carmeuse Lime & Stone — submitted by Lawson and Silek, P.L.C., to amend the proffers for this property; rezoning 394.2 acres from the EM (Extractive Manufacturing) District with proffers to the EM (Extractive Manufacturing) District with revised proffers. The properties are situated generally 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). The properties are identified with Property Identification Numbers 83-A-109 and 90-A-23, in the Back Creek Magisterial District. Action — Recommend Denial Candice E. Perkins, Assistant Director, reported this is a request to amend the proffers associated with Rezoning #03-06 which was approved in 2008. She continued, this request was postponed for 90 days at the Planning Commission's November 15, 2017 meeting to provide the Applicant additional time to discuss the proposal with neighbors. Ms. Perkins explained the Applicant is seeking to revise the proffers pertaining to: Viewshed Plans; Berm heights and installation timing; Landscaping exhibit removal; and Cemetery access. Ms. Perkins compared the proffers that have been approved to the amended proffers, dated February 14, 2018: • The approved proffer required berms that ranged in height from 10' to 30' based on the 12 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 was proffered to be 30'. The revision proposes to reduce this berm to 15'. • Berm Heights — Berms C & D; removes the berm detail south of Chapel Road and the Northern berm is still shown at 10'. • 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 — Site Development: The November 2017 proffer stated, "a combination of landscaping, earthen berms and fencing shall be installed'; the February 2018 proffer states "earthen berms or fencing shall be installed". This language is ambiguous and appears to allow 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 Applicant would "improve" the ROW so it can be used for 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 Frederick County Planning Commission Page 3516 Minutes of February 21, 2018 ROW for access or just relocating the ROW. It was noted this also 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 proffers state "access via public secondary roads shall be limited to the quarry entrance on McCune Road". Staff has received a number of 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. Ms. Perkins 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 2017 meeting: have held two community meetings; had face to face meetings with residents; handled numerous phone calls from residents. He provided a presentation of the revised proffers and various maps. Commissioner Unger inquired if the open field on the combined comparison map will be mined in the future. Mr. Wilmoth noted there is no plan to mine the field at this time based on existing drilling; if they were to mine that area they would have to put in a screening berm. Commissioner Oates suggested possibly zoning this piece back to RA. Mr. Ty Lawson, representing the Applicant noted there is no intent to mine or rezone at this time. Commissioner Unger noted there are no provisions in place to provide screening should this get mined at a later date. Mr. Lawson explained the zoning goes to the property line and there are setbacks in the zoning ordinance and there are requirements of DMME that certain screening, fencing, or berms must be in place. Commissioner Thomas suggested, if the berms are behind the tree line, why not include or proffer a mining map that shows the perimeters where their going to mine and include no mining to take place without a revised proffer to be allowed outside of these areas. He noted there needs to be protection in place for residents regarding future mining. Mr. Lawson explained where mining will take place is where reserves are underground. Commissioner Thomas noted if the berms are moved behind the tree line then the extent of the mining has to be inside the berm; this needs to be shown and committed to. Mr. Lawson commented he would agree. Commissioner Thomas questioned the language in proffer 2.2. Mr. Lawson explained the reason for the language in proffer 2.2 is to maintain the existing tree line and fence line; will be a combination. He continued, there were two GDP's provided to show where the berms would be and the heights; there are no words of fencing on the GDP. Commissioner Thomas noted the text in the proffers and the GDP need to be the same. Chairman Kenney requested Mr. Lawson read the text in proffer 2.2, first three lines to provide some clarity for everyone. Mr. Lawson read, "A combination of landscaping earthen berms or fencing shall be installed around the properties and the areas depicted on the amended GDP. The berms shall have a maximum height of 30' and minimum height of 10' as depicted on the GDP attachment." Commissioner Thomas commented the "or" in between the berm and fencing can be misinterpreted. Commissioner Thomas asked Mr. Wilmoth, when the public meeting was held did the residents agree to the revised berm height and revised locations. Mr. Wilmoth responded that is correct; Frederick County Planning Commission Page 3517 Minutes of February 21, 2018 at the last community meeting the berm heights were provided by residents with the exception of Section 4 as there was some discrepancy so a minimum of 20' was put in place. Commissioner Marston asked what determines the various berm heights; he feels there should be a standard of 15' or 20'. Mr. Wilmoth explained that was proposed to residents; after speaking with multiple neighbors they were provide with various feedback and they are trying to accommodate as many neighbors as possible. Commissioner Unger inquired is the intent to plant trees on the new berms like what is on the existing berms. Mr. Wilmoth explained that is correct; there would be a planting scheme, a grass mix from the Park Service was received and any other landscaping that would be approved by the zoning administrator. Commissioner Unger commented, possibly remove the word "or" from the proffer and include something that is not so vague and also include something that protects the neighbors of Westernview from future mining. Mr. Wilmoth commented they will take that into consideration. Mr. George McKotch of Carmeuse came forward. Commissioner Unger reiterated, there are two things that need to happen: need better wording for the berms or fencing and if the large field is to possibly be mined in the future there needs to be provisions in place now. Mr. McKotch noted an agreement can be met in regard to the berm language; there is no intent to mine the open field and if language is needed to address this it can be done. Chairman Kenney reminded everyone that what is before us in the agenda is what has to be voted on tonight. Chairman Kenney called for anyone who wished to speak regarding this Public Hearing to come forward at this time. Mr. Kevin Barrington of 205 Westernview Drive came forward and shared his concerns and comments. He gathered the community and held two meetings; felt at the meeting the residents were forced to make quick decisions and their requests were not fully addressed. He concluded Carmeuse is making money while the residents are losing money on their home and properties. Mr. Richard Dye owns 65 acres that boarders the property. He noted the need to keep the berms at 30' and is concerned with the stream. Mr. John Owings of 374 Chimney Circle shared his concerns: the community meeting did not involve everyone; the elimination of the 30' berms is unacceptable; Chapel Road 15' berm is not high enough; who will monitor the growth of the vegetation on the berms; and is concerned Carmeuse is not following the truck limit on these roads. Mr. Kian Banks thanked the Planning Commission for the 90 -day postponement in November 2017. He feels Carmeuse enticed the residents at the community meetings. He agreed there was more communication between the residents and Carmeuse however it did not make it into the proffers; would like the Planning Commission to deny this request. Ms. Robin Young of Chimney Circle commented there has been negotiating and residents can continue to work with Carmeuse to reach an agreement. Frederick County Planning Commission Page 3518 Minutes of February 21, 2018 Mr. Bill Hunter of 151 Westernview Drive commented he felt the meetings at the local level were more productive. He continued, there is more negotiating that needs to be done and would like to have the language cleaned up. No one else came forward to speak and Chairman Kenney_ closed the public comment portion of the hearing. Commissioner Thomas noted, the Planning Commission's actions tonight are limited, and the Applicant can request a delay in moving to the Board of Supervisors. He strongly feels the item as presented is unacceptable and sees no reason to reduce the berm heights. Mr. Lawson stated the Applicant's mission after the November 2017 meeting was to meet with the neighbors and that was done; the berm height was the majority of the discussions and the Applicant received conflicting responses from the residents. Commissioner Thomas reiterated, Carmeuse can request a delay however the Planning Commission will need to vote on this. Mr. Lawson noted the need to move forward and they will not request a delay. Commissioner Oates stated he agrees with Commissioner Unger and Commissioner Thomas, the Applicant needs to change the proffer language and the Board of Supervisors will decide; he feels more should have been done. Upon motion made by Commissioner Marston and seconded by Commissioner Thomas BE IT RESOLVED, the Frederick County Planning Commission does hereby unanimously recommend denial of Rezoning #05-17 for O.N. Minerals (Chemstone) d/b/a Carmeuse Lime & Stone — submitted by Lawson and Silek, P.L.C., to amend the proffers for this property; rezoning 394.2 acres from the EM (Extractive Manufacturing) District with proffers to the EM (Extractive Manufacturing) District with revised proffers. The properties are situated generally 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). The properties are identified with Property Identification Numbers 83-A-109 and 90-A-23, in the Back Creek Magisterial District. (Note: Commissioner Mohn was absent from the meeting) Conditional Use Permit #09-17 for Gregory A. Bishop (Shenandoah Mobile, LLC) Commercial Telecommunication Facility — submitted to construct a wireless commercial telecommunication monopole tower with supporting equipment in a fenced compound. The property is located at 219 Round Hill Road, Winchester, Virginia and is identified with Property Identification Number 52-A- 254 in the Back Creek Magisterial District. Action — Recommend Approval Mark A. Cheran, Zoning and Subdivision Administrator, reported this application is submitted to construct a wireless commercial telecommunication monopole tower with supporting equipment in a fenced compound. He continued, the property is currently zoned RA (Rural Areas) District and the current land use is Automobile Salvage Yard; the proposed use is for a 138' Commercial Telecommunication Tower which is to be located on a 7 +/- acre property. Mr. Cheran noted, the Zoning Frederick County Planning Commission Page 3519 Minutes of February 21, 2018 Ordinance allows for commercial telecommunication facilities in the RA (Rural Areas) Zoning District with an approved Conditional Use Permit. Mr. Cheran reported the Applicant is requesting a waiver to reduce the required setbacks for the eastern and western property lines; this proposed tower is to be 134' from the eastern and western property lines; the required setback from the property line is 100'; the tower is 138' in height and the RA Zoning District height maximum is 35', (138' — 35' = 103'). Mr. Cheran explained the normal setback of 100' in the RA District when the adjoining parcel is over 6 acres or more; the normal setback of 100', plus one foot for every foot over the maximum height of the district (35'); the site plan notes this tower is placed 134' from the property line and the setbacks cannot be met, thus resulting in a computation of (203' — 134' = 69") resulting in a waiver request of the 69'. He noted the property adjacent to the setback waiver request is a utility sub -station. Mr. Cheran presented the following conditions recommended by Staff. 1. All review agency comments shall be complied with at all times. 2. The tower shall be available for collocating personal wireless services providers. 3. A minor site plan shall be approved by Frederick County. 4. The tower shall be removed by the Applicant or property owner within twelve (12) months of abandonment of operation. 5. In the event a telecommunications tower is not erected within twelve (12) months of the approval of this Conditional Use Permit, the CUP will be deemed invalid. 6. Any expansion or modification of this use will require a new Conditional Use Permit. Mr. Lynn Koerner, representing Shentel came forward and provided a brief overview of the proposal and the history of this property. Mr. Dan Turnbull of Diamond Communications came forward and noted he has been working on an adjacent site with AT & T that is about 100 yards from this proposed tower; and agreement has been met with First Energy. Chairman Kenney called for anyone who wished to speak regarding this Public Hearing to come forward at this time. No one came forward to speak and Chairman Kenney closed the public comment portion of the hearing. Upon motion made by Commissioner Unger and seconded by Commissioner Marston BE IT RESOLVED, the Frederick County Planning Commission does hereby recommend approval of Conditional Use Permit #09-17 for Gregory A. Bishop (Shenandoah Mobile, LLC) Commercial Telecommunication Facility — submitted to construct a wireless commercial telecommunication monopole tower with supporting equipment in a fenced compound and the approval for a waiver request. The property is located at 219 Round Hill Road, Winchester, Virginia and is identified with Property Identification Number 52-A-254 in the Back Creek Magisterial District. (Note: Commissioner Mohn was absent from the meeting) Frederick County Planning Commission Page 3520 Minutes of February 21, 2018 ADJOURNMENT No further business remained to be discussed and a motion was made by Commissioner Oates to adjourn the meeting. This motion was seconded by Commissioner Thomas and unanimously passed. The meeting adjourned at 8:25 p.m. Respectfully submitted, Kevin W. Kenney, lUhai � A i Michael T. Ruddy, Secretary Frederick County Planning Commission Page 3521 Minutes of February 21, 2018