PC 10-16-19 Meeting Agenda
1
AGENDA
FREDERICK COUNTY PLANNING COMMISSION
The Board Room
Frederick County Administration Building
Winchester, Virginia
October 16, 2019
7:00 P.M. CALL TO ORDER TAB
1) Adoption of Agenda: Pursuant to established procedures, the Planning Commission
should adopt the Agenda for the meeting ................................................................ (no tab)
2) September 4, 2019 Meeting Minutes ............................................................................... (A)
3) Committee Reports .................................................................................................. (no tab)
4) Citizen Comments ................................................................................................... (no tab)
PUBLIC HEARING
5) Rezoning #03-19 for Berlin Steel and Dennis Ridings, submitted by Painter-Lewis,
P.L.C., to rezone 15.3933+/- acres from the RA (Rural Areas) District to the M1 (Light
Industrial) District with proffers. The properties are on the eastern side of Ridings Lane,
which intersects with Route 277 in the Opequon Magisterial District and are identified by
Property Identification Numbers 86-A-179C and 87-A-12.
Ms. Perkins ...................................................................................................................... (B)
6) Conditional Use Permit #07-19 for Middletown Firearms, submitted for establishment of
a commercial shooting range outdoors in the RA (Rural Areas) Zoning District. The
property is located at 6519 Valley Pike, Middletown, Virginia and is identified with
Property Identification Number 85-A-10 in the Back Creek Magisterial District.
Mr. Klein .......................................................................................................................... (C)
7) Ordinance Amendment to the Frederick County Code – Chapter 165 Zoning,
ARTICLE I GENERAL PROVISIONS; AMENDMENTS; AND CONDITIONAL
USE PERMITS, Part 101-General Provisions - §165-101.02 Definitions and Word
Usage; ARTICLE II SUPPLEMENTARY USE REGULATIONS; PARKING;
BUFFERS; AND REGULATIONS FOR SPECIFIC USES, Part 204 – Additional
Regulations for Specific Uses; §165-204.26 Public Utilities; ARTICLE IV
AGRICULTURAL AND RESIDENTIAL DISTRICTS, Part 401 – RA Rural Areas
District - §165-401.02. Permitted Uses; Part 402 – RP Residential Performance District
§165-402.02. Permitted Uses; Part 403 – Mobile Home Community District - §165-
2
403.02. Permitted Uses; ARTICLE V PLANNED DEVELOPMENT DISTRICTS, Part
502 - R5 Residential Recreation Community District - §165-502.04. Permitted Uses;
ARTICLE VI BUSINESS AND INDUSTRIAL ZONING DISTRICTS, Part 602 – B1
Neighborhood Business District - §165-602.02. Allowed Uses; Part 603 – B2 General
Business District - §165-603.02. Allowed Uses; Part 604 – B3 Industrial Transition
District - §165-604.02. Allowed Uses; Part 606 – M1 Light Industrial District - §165-
606.02. Allowed Uses; Part 608 – EM Extractive Manufacturing District - §165-608.02
Permitted Uses; Part 609 – HE Higher Education District - §165-609.02 Permitted
Uses. Revision to the Frederick County Zoning Ordinance to include a definition for Public
Utilities that includes utility-scale solar power generating facilities and amendments to the
supplemental use regulation for public utilities.
Mr. Klein .......................................................................................................................... (D)
8) Ordinance Amendment to the Frederick County Code – Chapter 165 Zoning,
ARTICLE I GENERAL PROVISION; AMENDMENTS; AND CONDITIONAL USE
PERMITS; Part 101 – General Provisions, §165-101.02 Definitions and Word Usage,
Part 103 - Conditional Use Permits, §165-103.03 Conditions; ARTICLE II
SUPPLEMENTARY USE REGULATIONS; PARKING; BUFFER and
REGULATIONS FOR SPECIFIC USES, Part 204 – Additional Regulations for
Specific Uses, §165-204.32 Country General Store Without Fuel Sales; ARTICLE IV
AGRICULTURAL AND RESIDENTIAL DISTRICTS, Part 401 – RA Rural Areas
District, §165-401.02 Permitted Uses, §165-401.03 Conditional Uses; Revision to the
Frederick County Zoning Ordinance that the Conditional Use in the RA District is that the
uses, and scale of the uses, are appropriate for the zoning district in which they are
identified.
Mr. Klein .......................................................................................................................... (E)
Other
Adjourn
Commonly Used Planning Agenda Terms
Meeting format
Citizen Comments – The portion of the meeting agenda offering an opportunity for the public to provide
comment to the Planning Commission on any items not scheduled as public hearing items.
Public Hearing– A specific type of agenda item, required by State law, which incorporates public comment as
a part of that item prior to Planning Commission or Board of Supervisors action. Public hearings are held for
items such as: Comprehensive Plan policies and amendments; Zoning and Subdivision Ordinance amendments;
and Rezoning and Conditional Use Permit applications. Following the Public Hearing, the Planning
Commission will take action on the item (see below).
Action Item–There are both public hearing and non-public hearing items on which the Planning Commission
takes action. Depending on the actual item, the Planning Commission may approve, deny, table, or forward a
recommendation to the Board of Supervisors regarding the agenda item. No public comment is accepted during
the Action Item portion of the agenda.
Information/Discussion Item– The portion of the meeting agenda where items are presented to the Planning
Commission for information and discussion. The Planning Commission may offer comments and suggestions,
but does not take action on the agenda item. No public comment is accepted during the Information/Discussion
Item portion of the agenda.
Planning Terminology
Urban Development Area or UDA – The UDA is the county’s urban growth boundary identified in the
Comprehensive Plan in which more intensive forms of residential development will occur. The UDA is an area
of the county where community facilities and public services are more readily available and are provided more
economically.
Sewer and Water Service Area or SWSA – The SWSA is the boundary identified in the Comprehensive Plan
in which public water and sewer is or can be provided. The SWSA is consistent with the UDA in many
locations; however the SWSA may extend beyond the UDA to promote commercial, industrial, and institutional
land uses in area where residential land uses are not desirable.
Land Use – Land Use is the nomenclature which refers to the type of activity which may occur on an area of
land. Common land use categories include: agricultural, residential, commercial, and industrial.
Zoning District - Zoning district refers to a specific geographic area that is subject to land use standards.
Frederick County designates these areas, and establishes policies and ordinances over types of land uses,
density, and lot requirements in each zone. Zoning is the main planning tool of local government to manage the
future development of a community, protect neighborhoods, concentrate retail business and industry, and
channel traffic.
Rezoning – Rezoning is the process by which a property owner seeks to implement or modify the permitted
land use activities on their land. A rezoning changes the permitted land use activities within the categories
listed above under Land Use.
Conditional Use Permit or CUP - A CUP allows special land uses which may be desirable, but are not always
appropriate based on a location and surrounding land uses. The CUP requested use, which is not allowed as a
matter of right within a zoning district, is considered through a public hearing process and usually contains
conditions to minimize any impacts on surrounding properties.
Ordinance Amendment – The process by which the County Code is revised. Often the revisions are the result
of a citizen request with substantial justification supporting the change. Amendments ultimately proceed
through a public hearing prior to the PC forwarding a recommendation to the Board of Supervisors.
County Bodies Involved
Board of Supervisors or BOS - Frederick County is governed by an elected Board of Supervisors composed of
seven members, one from each magisterial district, and one chairman-at-large. The Board of Supervisors is the
policy-making body of the county. Functions of the Board of Supervisors related to planning include making
land use decisions, and establishing growth and development policies.
Planning Commission or PC - The PC is composed of 13 members, two from each magisterial districts and one
at-large, appointed by the Board of Supervisors. The Planning Commission serves in an advisory capacity to the
Board of Supervisors which then takes final action on all planning, zoning, and land use matters.
Comprehensive Plans and Programs Committee or CPPC – The CPPC is a major committee of the PC whose
primary responsibility is to formulate land use policies that shape the location and timing of development
throughout the County. Included in the work are studies of specific areas to develop guidelines for future land
use within those areas. The CPPC also considers requests for amendments to the Comprehensive Plan.
Decisions by CPPC are then forwarded to the PC for consideration.
Development Review and Regulations Committee or DRRC – The DRRC is the second major committee of the
PC whose primary responsibilities involve the implementation of the Comprehensive Plan in the form of
Zoning and Subdivision ordinance requirements. Requests to amend the ordinances to the DRRC are made by
the Board of Supervisors, Planning Commission, local citizens, businesses, or organizations. DRRC decisions
are also forwarded to the PC for consideration.
A
Frederick County Planning Commission Page 3652
Minutes of September 4, 2019
MEETING 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 September 4, 2019.
PRESENT: Kevin Kenney, Chairman; Robert S. Molden, Opequon District; Gary R. Oates,
Stonewall District; Lawrence R. Ambrogi, Shawnee District; Greg L. Unger, Back Creek District; Rhodes
Marston, Back Creek District; Charles E. Triplett, Gainesboro District; Alan L. Morrison, Member at
Large; Christopher M. Mohn, Red Bud District; Kathleen Dawson, Red Bud District; Roderick B.
Williams, County Attorney .
ABSENT: Roger L. Thomas, Vice Chairman/Opequon District; William H. Cline, Stonewall District; H.
Paige Manuel, Shawnee District.
STAFF PRESENT: Michael T. Ruddy, Director; Mark R. Cheran, Zoning & Subdivision
Administrator; M. Tyler Klein, Senior Planner; Shannon L. Conner, Administrative Assistant.
CALL TO ORDER
Chairman Kenney called the September 4, 2019 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 Marston, the
Planning Commission unanimously adopted the agenda for this evening’s meeting.
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Frederick County Planning Commission Page 3653
Minutes of September 4, 2019
COMMITTEE REPORTS
Transportation Committee – Mtg. 08/26/19
Commissioner Oates reported, the Committee did not approve the following: a truck
restriction request for Brucetown Road; and a speed limit reduction request for Armel Road. He
concluded, the Transportation Forum was discussed, and a date was set for October 8th at 6:00 p.m.; and a
County project update was given.
Frederick Water – Mtg. 08/20/19
Commissioner Unger reported, the Frederick Water Board of Directors authorized its
Executive Director to enter a sewer service agreement with the Town of Middletown and Shaffer’s BBQ
which would result in Shaffer’s BBQ & Market having access to public sewer. The Shaffer’s Market is
presently served by an undersized drain field, so public sewer was being sought; since the Shaffer’s BBQ
property is not located within the Town of Middletown nor within the County’s Sewer and Water Service
Area (SWSA), the Board of Supervisors entertained and granted a requested SWSA exception in March
2018, enabling Frederick Water to provide sewer service to Shaffer’s BBQ. He continued, Frederick
Water does not presently have sewer service available in this area of the County; the sewer service
agreement enables Frederick Water to purchase sewer service fr om the Town of Middletown, and to
service the daily sewer requirements for Shaffer’s BBQ. Commissioner Unger reported the following
projects are on schedule: construction of the Stonewall Ballpark in Stephenson; construction of the Route
37 Water Main; Construction of the Lake Frederick Water Tank. He noted, the Opequon Water Supply
Plan will be put out for construction bid this fall; the 8 million gallon per day water treatment plant will
be operational in Summer 2021. Commissioner Unger shared the operations report for July: customer
base is over 16,409 connections; monthly water production averages 6.915 mgd; all quarries continue to
remain full and in excellent shape.
Comprehensive Plans and Programs Committee – Mtg. 08/12/19
Commissioner Mohn reported, the Committee recommended to move forward CPPA
#02-19 for Woodside Business Park. He noted a joint work session was discussed to be held with the
Board of Supervisors.
Development Review and Regulations Committee – Mtg. 08/22/19
Commissioner Unger reported, the Committee discussed the items which are on the
Planning Commission Agenda this evening: Public Utilities including utility -scale solar power
generating facilities; Evaluation of Conditional uses in the Ra Zoning District; Landscaping, buffer and
screening, off-street parking, and requirements for certain uses.
City of Winchester – Mtg. 09/03/19
Commissioner Ray, Winchester City Planning Commission Liaison reported the
commission discussed the editing of the Comprehensive Plan and a zoning request.
Frederick County Planning Commission Page 3654
Minutes of September 4, 2019
Board of Supervisors – Mtg. 08/14/19
Board of Supervisors’ Liaison, Supervisor Trout reported the Board approved CUP #04-
19 Jonathan DeHaven and denied CUP #05-18 for Waveland Farm LLC. She noted a SWSA exception
was granted for Orchard View Elementary and West Oak Farm Market.
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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 public comments portion of the meeting.
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INFORMATION / DISCUSSION
Public Utilities including utility-scale solar power generating facilities – Discussion of a request by
County Staff to include a definition for “Public Utilities” that also includes utility-scale solar power
generating facilities and solar power generating facility decommissioning requirements in the
Frederick County Zoning Ordinance Supplemental Use Regulations as required under the Code of
Virginia.
M. Tyler Klein, Senior Planner, reported this is a proposed amendment to Chapter 165 –
Zoning Ordinance to provide: A definition for “Public Utilities” that includes utility-scale solar power
energy generating facilities; and additional regulations for specific uses that requires utility-scale solar
generating energy facilities to make arrangements, including financial security, for decommissioning
consistent with/as required by the Code of Virginia, and site plan review/approval only for utility-scale
solar power generating facilities. Mr. Klein noted, the changes to the additional regulations for specific
uses section does not affect current public utilities, including water/sewer treatment and distribution
facilities. Mr. Klein presented the definition of Public Utilities: power generating facilities, booster or
relay stations, transformer substations, transmission lines and towers, pipes, meters and other facilities
(including utility-scale solar power generating facilities), and sewer and water treatment facilities
including sewer and water transmission lines; such facilities may be owned by public utilities, public
agencies, or those operators with a “Certificate of Public Convenience.”
Mr. Klein reported, the intent of this text amendment is to codify a determination that
“utility-scale solar power generating facilities” would be considered a “public utility” and to codify recent
changes to the Code of Virginia to include the decommissioning of solar energy facilities. He continued,
the text amendment also cleans up terminology for “public utilities” throughout the Zoning Ordinance;
the text amendment does not amend requirements for other types of public utilities, including those
facilities owned/operated by Frederick Water. Mr. Klein concluded, the DRRC discussed this item at
their June 27th, July 25th, and August 22nd regular meetings and supported the proposed changes.
Commissioner Unger recommended this item move forward to the Board of Supervisors for further
discussion.
Frederick County Planning Commission Page 3655
Minutes of September 4, 2019
Conditional uses in the RA (Rural Areas) District – Discussion of Conditional uses in the RA
District to redefine the conditional use “country general store” to exclude all fuel sales and cap the
square footage allowed at 3,500 square feet uses, providing additional regulations for specific uses
(country general store), eliminate, combine and refine certain c onditional uses and codify certain
Zoning Determination relating to “home occupations”, “cottage occupations”, and “kennels”.
M. Tyler Klein, Senior Planner, reported the purpose of the proposed amendment is to:
add clarity to specific uses where the intensity of a given use is important in considering its
appropriateness for a CUP; and to provide consistency in allowance and implementation of certain uses.
He continued, the Board of Supervisors directed the Planning Commission to evaluate the CUP process
and those listed conditional uses to ensure that the uses, and scale of the uses, are appropriate for the
zoning district in which they are allowed. Mr. Klein noted, this is a proposed amendment to Chapter 165
– Zoning Ordinance to:
1. Further define the conditional use country general store to exclude all fuel
sales and cap the square footage allowed at 3,500 square feet (SF).
2. Provide additional regulations for specific uses (country general store).
3. Eliminate, combine, and refine certain conditional uses.
4. Codify Zoning Determinations relating to home occupations, cottage
occupations, and kennels to reduce the number of Conditional Use Permit
(CUP) applications.
Mr. Klein provided the definition of Country General Store: a retail business, without
accessory fuel sales, not to exceed 3,500 square feet gross retail floor area, allowed where specified in the
rural zoning districts which sells groceries along with a variety of other retail goods. Mr. Klein
concluded, the DRRC discussed this item at their August 22nd regular meeting; the DRRC supported the
proposed changes and suggested further evaluation of “special event facilities” if directed by the Board of
Supervisors. Chairman Kenney inquired if the definition was based on any other localities. Mr. Klein
noted it was not. Commissioner Oates asked if in excess of 3,500 SF no matter where located they will
need to rezone. Mr. Klein stated that is correct.
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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 Marston and unanimously
passed. The meeting adjourned at 7:20 p.m.
Respectfully submitted,
____________________________
Kevin W. Kenney, Chairman
____________________________
Michael T. Ruddy, Secretary
B
REZONING APPLICATION #03-19
BERLIN STEEL ESTATE INC.
Staff Report for the Planning Commission
Prepared: October 4, 2019
Staff Contact: Candice E. Perkins, AICP, CZA, Assistant Director
Reviewed Action
Planning Commission: 10/16/19 Pending
Board of Supervisors: 11/13/19 Pending
PROPOSAL: To rezone 15.3933+/- acres from the RA (Rural Areas) District to the M1 (Light
Industrial) District with proffers.
LOCATION: The subject property is located at 280 Ridings Lane which intersects with Route 277.
EXECUTIVE SUMMARY & STAFF CONCLUSION FOR THE 10/16/19 PLANNING
COMMISSION MEETING:
This is an application to rezone 15.3933+/- acres from the RA (Rural Areas) District to the M1 (Light
Industrial) District with proffers. The site is located within the limits of the Southern Frederick Land
Use Plan of the 2035 Comprehensive Plan and depicts the subject properties with an industrial land use
designation. The proposed M1 Zoning is generally consistent with the Southern Frederick Land Use
Plan as it relates to this area. These properties are not located within the limits of the Sewer and Water
Service Area (SWSA). The Comprehensive Plan states that it is expected that the land uses within the
UDA and SWSA will be served by public water and sewer. However, as this site is contiguous to
existing M1 Zoning and is intended to facilitate an expansion to an existing business (Berlin Steel), this
request to rezone property outside of the SWSA may be appropriate.
The proffers associated with this rezoning request are as follows; Staff has provided comments
regarding concerns associated with this request:
Proffer Statement – Dated May 16, 2019:
1. The land and any improvements thereto will be expressly used for a metal fabrication business
as permitted under the M1 Zoning.
2. Monetary Contribution – The owner will donate $1,000 for impacts to fire and rescue services.
Staff Comments:
• The Applicant has not addressed VDOT’s comment for a turn lane.
• Staff would note that the Southern Frederick Land Use Plan shows a new minor
collector roadway planned through this site. It is noted that this is a planned roadway
and not designed at this time and the location may be subject to future modifications.
The Applicant has not addressed this roadway in their rezoning application.
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 #03-19 Berlin Steel Estate Inc.
October 4, 2019
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: 10/16/19 Pending
Board of Supervisors: 11/13/19 Pending
PROPOSAL: To rezone 15.3933+/- acres from the RA (Rural Areas) District to the M1 (Light
Industrial) District with proffers.
LOCATION: The subject property is located at 280 Ridings Lane which intersects with Route 277.
MAGISTERIAL DISTRICT: Opequon
PROPERTY ID NUMBERS: 86-A-179C and 87-A-12
PROPERTY ZONING: RA (Rural Areas) District
PRESENT USE: Vacant
ADJOINING PROPERTY ZONING & PRESENT USE:
North: M1 (Light Industrial) Use: Berlin Steel – Industrial
East: RA (Rural Areas) Use: Residential/Agricultural
East: RA (Rural Areas) Use: Residential/Agricultural
West: RA (Rural Areas) Use: Vacant/Agricultural
Rezoning #03-19 Berlin Steel Estate Inc.
October 4, 2019
Page 3
REVIEW EVALUATIONS:
Virginia Dept. of Transportation: We have reviewed the rezoning application for Berlin Steel and
Ridings to rezone a total of 15.3933 acres from RA to M1 for the use of metal fabrication business. We
have also reviewed a turn lane warrant analysis associated with this rezoning. The turn lane analysis
indicated needs for turn lane in the future, however, the proffer statement does not include mitigation to
offset future turn lane and intersection needs.
Frederick County Transportation:
County Staff concurs with VDOT regarding the need for a turn lane at the entrance per the requested
expanded use in the rezoning, however I would note that the proffer statement does not include
accommodation for this expected impact on the transportation network.
Frederick-Winchester Health Department: The Frederick County Health Department has no
objection to the proposed zoning changes from RA to M1 since this change does not affect any
proposed or existing wells or septic systems on the properties.
Frederick Water: Please see letter from Eric R. Lawrence, AICP, Executive Director dated May 15,
2019.
Frederick County Department of Public Works: In the Impact Analysis Statement, Section F-
Drainage also reference Chapter 143 of County Code – Stormwater/Erosion and Sediment Control
Ordinance comprehensive review will occur at the time of site plan submission.
Frederick County Fire Marshall: Plan approved.
County of Frederick Attorney: Please see email from Roderick B. Williams, County Attorney dated
August 28, 2019.
Planning & Zoning:
1) Site History
The original Frederick County Zoning Map (U.S.G.S. Stephens City Quadrangle) depicts the
zoning for both parcels as A-2 (Agricultural General) District. The A-2 (Agricultural General)
District zoning classification was modified to RA (Rural Areas) District on February 14, 1990
during the comprehensive amendment to the County’s Zoning Ordinance.
*The adjacent Berlin Steel property was rezoned in 1983 and 2001.
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
Rezoning #03-19 Berlin Steel Estate Inc.
October 4, 2019
Page 4
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 site is located within the limits of the Southern Frederick Land Use Plan of the 2035
Comprehensive Plan and depicts the subject properties with an industrial land use designation.
The proposed M1 Zoning is generally consistent with the Southern Frederick Land Use Plan as
it relates to this area. Staff would note that these properties are not located within the limits of
the Sewer and Water Service Area (SWSA).
Transportation
The site is accessed via an existing commercial entrance (Ridings Lane) that intersects with
Fairfax Pike (Route 277). No improvements are proposed by the Applicant. VDOT stated in
their comment that the turn lane analysis indicated needs for a turn lane in the future, however,
the proffer statement does include mitigation to offset future turn lane and intersection needs.
County transportation Staff notes that they concur with the need for the turn lane, and further
notes that the Applicant has not addressed this impact of the rezoning in their proffer statement.
Staff would note that the Southern Frederick Land Use Plan shows a new minor collector
roadway planned through this site. It is noted that this is a planned roadway and not designed at
this time and the location may be subject to future modifications. The Applicant has not
addressed this roadway in their rezoning application.
Environmental
Parcel 86-A-179C contains an approximately three-acre pond, there are no floodplains or
wetlands as stated in the Applicant’s impact statement. The site does contain some steep slopes
that are identified eastern portion of the site. Woodlands generally cover parcel 87-A-12 and
the southern and eastern portion of 86-A-179C. The Applicant proposes to clear much of the
woodlands with the development of the site.
This site is not within the limits of the Sewer and Water Service Area (SWSA) and therefore is
served via a private onsite sewage disposal system. This system is monitored by the Virginia
Department of Environmental Quality.
Rezoning #03-19 Berlin Steel Estate Inc.
October 4, 2019
Page 5
3) Proffer Statement – Dated May 16, 2019:
1. The land and any improvements thereto will be expressly used for a metal fabrication business
as permitted under the M1 Zoning.
2. Monetary Contribution – The owner will donate $1,000 for impacts to fire and rescue services.
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.
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REZ # 03 - 19: Berlin Steel Real Estate, Inc.PINs: 86 - A - 179C, 87 - A - 12Rezoning from RA to M1Zoning Map
REZ #03-19
REZ #03-19
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Ramp
Roundabout
Trails
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Neighborhood Village
Urban Center
Mobile Home Community
Business
Highway Commercial
Mixed-Use
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Mixed Use Industrial/Office
Industrial
Warehouse
Heavy Industrial
Extractive Mining
Commercial Rec
Rural Community Center
Fire & Rescue
Sensitive Natural Areas
Institutional
Planned Unit Development
Park
Recreation
School
Employment
Airport Support Area
B2 / B3
Residential, 4 u/a
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High-Density Residential, 12-16 u/a
Rural Area
Interstate Buffer
Landfill Support Area
Natural Resources & Recreation
Environmental & Recreational Resources µ
Frederick County Planning & Development107 N Kent StWinchester, VA 22601540 - 665 - 5651Map Created: September 16, 2019
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CONDITIONAL USE PERMIT #07-19
Middletown Firearms (Travis Dodson) – Commercial Shooting
Range, Outdoors
Staff Report for the Planning Commission
Prepared: October 8, 2019
Staff Contact: M. Tyler Klein, AICP, Senior Planner
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
request. It may also be useful to others interested in this zoning matter.
Reviewed Action
Planning Commission: 10/16/19 Pending
Board of Supervisors: 11/13/19 Pending
EXECUTIVE SUMMARY:
This is a request for a Conditional Use Permit (CUP) for a commercial outdoor shooting range in the
RA (Rural Areas) Zoning District. Should the Planning Commission find this application to be
appropriate, Staff recommends that the following conditions be attached to the CUP:
1. All review agency comments shall be complied with at all times.
2. An engineered site plan, in accordance with the requirements of Article VIII of the Fredrick
County Zoning Ordinance, shall be submitted to and subject to approval by Frederick County
prior to the establishment of the use. The site plan shall address additional regulations for
specific uses outlined in §165-204.15 of the Frederick County Zoning Ordinance.
3. The hours of operation for shooting range activities shall be limited to:
a. Monday through Saturday – 10 a.m. to 7 p.m.
b. Sunday – 1 p.m. to 6 p.m.
4. Shooting activities shall be supervised by qualified personnel at all times.
5. One (1) monument style sign with a maximum sign area not to exceed 50 square feet (SF)
and not to exceed 10 feet (FT) in height is permitted.
6. Any expansion or modification of this use will require the approval of a new CUP.
Following this public hearing, it would be appropriate for the Planning Commission to offer a
recommendation concerning this application to the Board of Supervisors.
Page 2
CUP #07-19, Middletown Firearms – Commercial Shooting Range, Outdoors
October 8, 2019
LOCATION: The subject property is 6519 Valley Pike (Route 11), Middletown; immediately
southeast of the intersection of Valley Pike and Vaucluse Road. The property is located
approximately 2-miles north of the Town of Middletown.
MAGISTERIAL DISTRICT: Back Creek
PROPERTY ID NUMBER: 85-A-10
PROPERTY ZONING & PRESENT USE: Zoned: RA (Rural Areas)
Land Use: Residential/Vacant
ADJOINING PROPERTY ZONING & PRESENT USE:
North: RA (Rural Areas) Use: Residential/Agricultural
South: RA Use: Agricultural
East: Highway Use: Interstate-81
West: RA Use: Residential
PROPOSED USE:
This is a request for a Conditional Use Permit (CUP) to enable the establishment of a
commercial outdoor shooting range on a 35-acre property.
REVIEW EVALUATIONS:
Virginia Department of Transportation:
We have reviewed the Conditional Use Permit Application for Travis Dodson/Middletown Firearms
to develop an outdoor shooting range/club with classroom and bathroom space at 6519 Valley Pike in
Frederick County, Virginia. While we have no overall objection to this application , we offer the
following comments. The existing private entrance to the facility is not adequate for the proposed
commercial use. We request as a condition of this CUP; the Applicant submit and Engineered
Commercial Entrance Site Plan to this office for review. I have attached our standard commercial
entrance checklist to assist the Applicant and their engineer.
The existing private driveway location also does not meet minimum intersection sight distance (SDL-
sight distance left) for a commercial entrance. In my field inspection, I was not able to identify the
property corners, but it appears there should be sufficient frontage to work with. Sight distance
profiles and a grading plan are part of the Commercial Entrance Sight Plan requirements to be
submitted by the engineer.
We appreciate the opportunity to provide comments on this Conditional Use Permit Application
Should you have any questions, please feel free to contact me.
See original email from Timothy Rhodes, Land Development Engineer dated August 23, 2019.
Page 3
CUP #07-19, Middletown Firearms – Commercial Shooting Range, Outdoors
October 8, 2019
Winchester-Frederick County Health Department:
Request for Comments for a Conditional Use Permit for a shooting range, classroom space and
bathroom facility at 6519 Valley Pike, Middletown, VA 22645 (Frederick County Tax Map #85-A-
10).
I have reviewed your request and this office would have no objections to the proposed shooting
range, classroom space and bathroom facility provided an onsite sewage system can be approved.
In addition, if the proposed structures are to be served by an existing private well, water must not be
made available for consumption by the public.
If you have any questions, contact me at 540-722-3480.
See original comment letter from Jim Davis, REHS, Environmental Health Supervisors dated August
5, 2019.
Frederick County Inspections:
Conditional Use Permit for use of existing R-5 Residential one and two-family dwelling and
associated buildings/property as A-3 Assembly Use, Recreational activity occupancy (Shooting
Range). Buildings and structures shall comply with 2015 The Virginia Uniform Statewide Building
Code and Section 303-A, Assembly Use Group of the International Building Code/2015. Other Code
that apply is the ICC/ANSI A117.1-09 Accessible and Usable Buildings and Facilities, Virginia
Energy Code 2015, Virginia Plumbing Code 2015, and International Fire Code 2015.
A full site plan is required. Site plan shall be specific on the location of the buildings and their use.
Associated building requires permits. Open structures require a design by a Registered Design
Professional licensed in the State of Virginia.
Restroom facilities provided onsite. A family room may be required if combined fixture
requirements per T2901 exceed 6 male and female water closets are required. Restroom shall meet
ANSI A117.1-09 and shall be located on an accessible route.
Door approach and landings shall comply with ANSI A117.1-2009. Travel distance to restrooms
shall not exceed 500’.
An accessible route shall be provided to the all buildings and the shooting range. Accessible parking
and unloading shall be provided. Quantity of Accessible spaces pr ovided shall meet Table 1106.1.1
Handicap parking shall comply with ANSI A117.1-09. Van accessible parking/unloading shall have
a minimum of 11’ width with 5’ unloading area or a minimum of an 8’ unloading area with an 8’
width. Max slope of parking and unloading area is 1:48 IBC 1106.6 requires HC parking to be
located on the shortest accessible route of travel from adjacent parking to the shooting range.
Walkways shall not exceed 5% (1” in 20”) slope.
Page 4
CUP #07-19, Middletown Firearms – Commercial Shooting Range, Outdoors
October 8, 2019
Shooting range and berms shall be designed by the recognized governing standard (US Dept. of
Energy) for open air shooting ranges.
Reuse of an existing accessory structure will require a change of use. Alteration to existing dwelling
and/or accessory building will require an asbestos inspection. If asbestos is found, an asbestos
abatement will be required.
Please note the requirements in Chapter 17 of IBC for special inspection requirements on the type of
structure. (Soils, concrete etc.).
See original comment letter from Mark Fleet, Building Official dated August 28, 2019.
Frederick County Fire Marshall:
Approve. Approved provided that site plan be submitted for review.
See original comment letter from Kenneth Scott, Jr., dated August 22, 2019.
Frederick Water:
Property is not served by Frederick water. No additional comments at this time.
See original comment letter from Earl Wiley, dated August 6, 2019.
Historic Resources Advisory Board:
The Study of Civil War Sites in the Shenandoah Valley, published by the National Park Service, does
not identify the proposed site or the surrounding areas as being part of a battlefield. The Rural
Landmarks Survey Report for Frederick County, Virginia, identifies four structures located within
the vicinity of the proposed Conditional Use Permit, one of those (Stickley House) is located on the
subject property. The Stickley House, along with two other mapped adjacent properties are listed as
potentially significant. One of adjoining properties, Indian Springs, is potentially eligible for the
State Register of Historic Places.
After reviewing this information and the Applicant’s materials and proposals, the Historic Resources
Advisory Board (HRAB) did not support the approval of the Conditional Use Permit as presented.
The HRAB expressed concern with the visual and noise impact this would have on the historic
adjoining and surrounding properties. It was further noted that this area has a relatively intact
collection of historic structures and could potentially qualify as a rural historic community.
See original comment letter from Candice E. Perkins, AICP, CZA, Assistant Director, dated
September 18, 2019.
Planning and Zoning:
This application for a Conditional Use Permit (CUP) to permit the establishment of a commercial
outdoor shooting range in the RA (Rural Areas) Zoning District. Commercial outdoor shooting
Page 5
CUP #07-19, Middletown Firearms – Commercial Shooting Range, Outdoors
October 8, 2019
ranges are permitted in the RA Zoning District through an approved CUP. Additionally, commercial
shooting ranges shall follow the Additional Regulations for Specific Uses outlined in §165-204.15 of
the Frederick County Zoning Ordinance, specifically:
a. Zoning district separation buffers and screens, Category C, shall be provided in relation to
surrounding properties containing residential uses;
b. In no case, shall a shooting range be located within 1,000 feet (FT) of any residence located
on surrounding parcels of land; and
c. Applications for a CUP shall include plans for appropriate site layout and design to protect
the safety of the public. Such plans shall include berms and other protective features.
The Applicant, Middletown Firearms (Travis Dodson) proposes a commercial outdoor shooting
range at 6519 Valley Pike with the following facilities:
• Four (4) separate gun ranges with covered shooting bays:
o A 25-yard range (enclosed) with eight (8) shooting lanes & a concrete floor for
tactical training;
o A 25-yard range with eight (8) shooting lanes;
o A 50-yard range with six (6) shooting lanes; and
o A 100-yard range with six (6) shooting lanes.
• Each range will have side berms 8-feet (FT) in height and 6-FT wide, and a rear berm 16-FT
in height.
• Range support buildings including: a classroom & storage building, restrooms and/or a small
check-in area with ammunition, targets, and cleaning supplies for sale.
The Applicant has also included a “Shooting Range Standard Operation Procedure” manual which
specifies their shooting range operations and safety. The commercial shooting range will always be
supervised by qualified firearms personnel and will serve gun club members, firearm owners, firearm
safety classes and local law enforcement personnel.
The Applicant does not intend to use the existing home on the property as a residence; however, the
application notes it may be used in the future as classroom space or storage (and would require
review under a new CUP). The property is also heavily wooded with mature trees and vegetation,
creating a natural screen from the adjacent property to the north of the site (residential/agricultural
use) and from the east of the site along Interstate 81 (southbound lanes). Site access will be from the
existing driveway from US Route 11 (Valley Pike), which will need to be improved to meet the
Virginia Department of Transportation (VDOT) commercial entrance standard.
Page 6
CUP #07-19, Middletown Firearms – Commercial Shooting Range, Outdoors
October 8, 2019
Aerial View – Looking East from Route 11 (Valley Pike)
Approximate Location of Commercial Outdoor Shooting Range
The property is surrounded by other RA (Rural Areas) zoned property, which includes open space,
agricultural/forestal uses, and single-family detached residences north of the property and across
Valley Pike. The 2035 Comprehensive Policy Plan of Frederick County (Comprehensive Plan)
identifies this area of the County as “rural” and is to remain rural/agricultural in nature and is not part
of any land use study.
STAFF CONCLUSIONS FOR THE 10/16/19 PLANNING COMMISSION MEETING:
This is a request for a Conditional Use Permit (CUP) for a commercial outdoor shooting range in the
RA (Rural Areas) Zoning District. Should the Planning Commission find this application to be
appropriate, Staff recommends that the following conditions be attached to the CUP:
1. All review agency comments shall be complied with at all times.
2. An engineered site plan, in accordance with the requirements of Article VIII of the Fredrick
County Zoning Ordinance, shall be submitted to and subject to approval by Frederick County
prior to the establishment of the use. The site plan shall address additional regulations for
specific uses outlined in §165-204.15 of the Frederick County Zoning Ordinance.
Page 7
CUP #07-19, Middletown Firearms – Commercial Shooting Range, Outdoors
October 8, 2019
3. The hours of operation for shooting range activities shall be limited to:
a. Monday through Saturday – 10 a.m. to 7 p.m.
b. Sunday – 1 p.m. to 6 p.m.
4. Shooting activities shall be supervised by qualified personnel at all times.
5. One (1) monument style sign with a maximum sign area not to exceed 50 square feet (SF)
and not to exceed 10 feet (FT) in height is permitted.
6. Any expansion or modification of this use will require the approval of a new CUP.
Following this public hearing, it would be appropriate for the Planning Commission to offer a
recommendation concerning this application to the Board of Supervisors.
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Parcels µ
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CUP # 07 - 19: Middletown FirearmsPIN: 85 - A - 10Shooting RangeZoning Map
CUP #07-19
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COUNTY of FREDERICK
Department of Planning and Development
540/ 665-5651
Fax: 540/ 665-6395
MEMORANDUM
TO: Frederick County Planning Commission
FROM: M. Tyler Klein, AICP, Senior Planner
SUBJECT: Ordinance Amendment – Public Utilities including utility-scale solar power
generating facilities – Public Hearing
DATE: October 8, 2019
This is a proposed amendment to Chapter 165 – Zoning Ordinance to provide:
1. A definition for “Public Utilities” that includes utility-scale solar power energy generating
facilities;
2. A definition for “decommissioning” and “utility-scale solar power generating facilities,”
consistent with the Code of Virginia; and
3. Additional regulations for specific uses that requires utility-scale solar generating energy
facilities to make arrangements, including financial security, for decommissioning
consistent with/as required by the Code of Virginia, and site plan review/approval only for
utility-scale solar power generating facilities.
The above changes to the additional regulations for specific uses section does not affect current
public utilities, including water/sewer treatment and distribution facilities.
The General Assembly amended the Code of Virginia (§15.2-22.41.2) to include decommissioning
of solar energy facilities effective July 1, 2019. Previously, the County Attorney and Staff
provided a determination that was shared with the Board of Supervisors on July 2018, stating that
utility-scale solar power generating energy facilities would qualify as a “public utility” type-
facility and would otherwise be allowed by-right in the County’s RA (Rural Areas) Zoning District
(and other zoning districts where public utilities are permitted by-right).
This item was proposed by the County Attorney and Staff and discussed by the DRRC at their
June 27th, July 25th, and August 22nd regular meetings. The DRRC agreed with the proposed
changes from August 22nd, and the item was forwarded to the Planning Commission for discussion.
The Planning Commission discussed this item on September 4th and the Board of Supervisors
discussed this item on September 25th. During their discussion, the Board directed Staff to also
provide a definition for “decommissioning” and “utility-scale solar power energy generating
facilities” and the item was sent forward, with requested amendments, for public hearing.
The attached document shows the existing ordinance with the proposed changes (with bold italic
for text added). This proposed amendment is being presented to the Planning Commission as
a public hearing item. Staff is seeking a recommendation from the Planning Commission.
The recommendation from the Planning Commission will be forwarded to the Board of
Supervisors.
Attachments: 1. Revised ordinance with additions shown in bold underlined italics.
2. Code of Virginia §15.2-2241.2
3. Memo to the Board of Supervisors, July 26, 2018
MTK/pd
Revised 9/26/19
ARTICLE I
General Provisions; Amendments; and Conditional Use Permits
Part 101
General Provisions
§ 165-101.02 Definitions and word usage.
Decommissioning
The removal and proper disposal of solar energy equipment, facilities, or devices on real property that
has been determined by the County to be subject to § 15.2-2232 of the Code of Virginia and therefore
subject to § 15.2-2241.2 of the Code of Virginia. "Decommission" includes the reasonable restoration
of the real property upon which such solar equipment, facilities, or devices are located, including (i)
soil stabilization and (ii) revegetation of the ground cover of the real property disturbed by the
installation of such equipment, facilities, or devices.
Public Utilities
Power generating facilities, booster or relay stations, transformer substations, transmission lines and
towers, pipes, meters and other facilities (including utility-scale solar power generating facilities), and
sewer and water treatment facilities including sewer and water transmission lines. Such facilities may
be owned by public utilities, public agencies, those operators with a Certificate of Public Convenience,
or those that are operating under a Permit by Rule (PBR).
Utility-Scale Solar Power Generating Facilities
Any personal property designed and used primarily for the purpose of collecting, generating, or
transferring electric energy from sunlight. Any such facility primarily designed or intended to offset
personal energy consumption by the owner of the facility does not constitute a utility-scale solar power
generating facility.
Revised 9/26/19
ARTICLE II
Supplementary Use Regulations; Parking; Buffers; and Regulations for Specific Uses
Part 204
Additional Regulations for Specific Uses
§ 165-204.26. Public Utilities
1. Public utilities. Lot requirements for lots used by political subdivisions, municipal corporations, the
Virginia Department of Transportation, the Frederick-Winchester Service Authority, or the Frederick
Water County Sanitation Authority for public utility purposes shall be as follows:
A. In all zoning districts, the Zoning Administrator shall have the authority to determine the
minimum lot size necessary for such public utilities and the appropriate setbacks for such lots
used for public utility purposes.
B. Such lots shall be exempt from the individual on-site sewage disposal system requirements.
C. Such lots may be accessed by private access easements; any such easement shall be a minimum
of 15 feet in width.
D. For Public Utilities – Utility-Scale Solar Power Generating Facilities a site plan, in accordance
with Article VIII, shall be submitted to and approved by Frederick County, prior to the
establishment of the use.
2. Public Utilities - Utility-Scale Solar Power Generating Facilities. Any owner, lessee, or developer of
real property for the purposes of solar power energy generation shall enter into a written agreement,
prior to site plan approval, with Frederick County to decommission solar energy equipment, facilities,
or devices pursuant to the terms and conditions of § 15.2-2241.2(B) of the Code of Virginia.
Revised 9/26/19
ARTICLE IV
Agricultural and Residential Districts
Part 401
RA Rural Areas District
§ 165-401.02. Permitted Uses
Q. Public utility generating, booster, or relay stations, transformer substations, transmission lines and
towers, pipes, meters and other facilities, railroad facilities and sewer and water facilities, and lines
owned by public facilities, railroad companies or public agencies. Public Utilities
Part 402
RP Residential Performance District
§ 165-402.02. Permitted Uses
B. Structures and land shall be used for one of the following uses:
(6) Utility distribution facilities necessary to serve residential uses, including, but not limited to, poles,
lines, distribution transformers, pipes, and meters. Public Utilities excluding energy generating facilities.
Part 403
MH1 Mobile Home Community District
§ 165-403.02. Permitted Uses
H. Public utilities including poles, lines, distribution transformers, pipes and meters, water and sewer
facilities and lines. Public Utilities excluding energy generating facilities.
Revised 9/26/19
ARTICLE V
Planned Development Districts
Part 502
R5 Residential Recreational Community District
§165-502.04. Permitted uses.
P. Public sewer and water facilities and lines. Public Utilities excluding energy generating facilities.
Revised 9/26/19
ARTICLE VI
Business and Industrial Districts
Part 602
B1 Neighborhood Business District
§165-602.02. Allowed Uses.
Public utility distribution facility Public Utilities excluding energy generating facilities.
Part 603
B2 General Business District
§165-603.02. Allowed Uses.
Public utility distribution facility Public Utilities excluding energy generating facilities.
Part 604
B3 Industrial Transition District
§165-604.02. Allowed Uses.
Public utility distribution facility Public Utilities
Part 606
M1 Light Industrial District
§165-606.02. Allowed Uses.
Public utility distribution facility Public Utilities
Part 608
EM Extractive Manufacturing District
§165-608.02. Permitted Uses.
K. Public utilities, including poles, lines, distribution transformers, pipes, meters, and sewer facilities.
Public Utilities.
Part 609
HE Higher Education District
§165-609.02. Permitted uses.
B. Utilities necessary to serve allowed uses, including poles, lines, distribution transformers, pipes and
meters. Public Utilities excluding energy generating facilities.
CHAPTER 743
An Act to amend the Code of Virginia by adding a section numbered 15.2-2241.2, relating to rezoning and site plan
approval; decommissioning solar energy equipment, facilities, or devices. [H 2621] Approved March 21, 2019
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding a section numbered 15.2-2241.2 as follows:
§15.2-2241.2. Bonding provisions for decommissioning of solar energy equipment, facilities, or devices.
A. As used in this section, unless the context requires a different meaning:
"Decommission" means the removal and proper disposal of solar energy equipment, facilities, or devices on real
property that has been determined by the locality to be subject to §15.2-2232 and therefore subject to this section.
"Decommission" includes the reasonable restoration of the real property upon which such solar equipment, facilities,
or devices are located, including (i) soil stabilization and (ii) revegetation of the ground cover of the real property
disturbed by the installation of such equipment, facilities, or devices.
"Solar energy equipment, facilities, or devices" means any personal property designed and used primarily for the
purpose of collecting, generating, or transferring electric energy from sunlight.
B. As part of the local legislative approval process or as a condition of approval of a site plan, any locality shall
require an owner, lessee, or developer of real property subject to this section to enter into a written agreement to
decommission solar energy equipment, facilities, or devices upon the following terms and conditions: (i) if the party
that enters into such written agreement with the locality defaults in the obligation to decommission such equipment,
facilities, or devices in the timeframe set out in such agreement, the locality has the right to enter the real property of
the record title owner of such property without further consent of such owner and to engage in decommissioning and
(ii) such owner, lessee, or developer provides financial assurance of such performance to the locality in the form of
certified funds, cash escrow, bond, letter of credit, or parent guarantee, based upon an estimate of a professional
engineer licensed in the Commonwealth, who is engaged by the applicant, with experience in preparing
decommissioning estimates and approved by the locality; such estimate shall not exceed the total of the projected
cost of decommissioning, which may include the net salvage value of such equipment, facilities, or devices, plus a
reasonable allowance for estimated administrative costs related to a default of the owner, lessee, or developer, and
an annual inflation factor.
CHAPTER 744
An Act to amend the Code of Virginia by adding a section numbered 15.2-2241.2, relating to rezoning and site plan
approval; decommissioning solar energy equipment, facilities, or devices. [S 1091] Approved March 21, 2019
Be it enacted by the General Assembly of Virginia:
1. That the Code of Virginia is amended by adding a section numbered 15.2-2241.2 as follows:
§15.2-2241.2. Bonding provisions for decommissioning of solar energy equipment, facilities, or devices.
A. As used in this section, unless the context requires a different meaning:
"Decommission" means the removal and proper disposal of solar energy equipment, facilities, or devices on real
property that has been determined by the locality to be subject to §15.2-2232 and therefore subject to this section.
"Decommission" includes the reasonable restoration of the real property upon which such solar equipment, f acilities,
or devices are located, including (i) soil stabilization and (ii) revegetation of the ground cover of the real property
disturbed by the installation of such equipment, facilities, or devices.
"Solar energy equipment, facilities, or devices" means any personal property designed and used primarily for the
purpose of collecting, generating, or transferring electric energy from sunlight.
B. As part of the local legislative approval process or as a condition of approval of a site plan, a locality shall require
an owner, lessee, or developer of real property subject to this section to enter into a written agreement to
decommission solar energy equipment, facilities, or devices upon the following terms and conditions: (i) if the party
that enters into such written agreement with the locality defaults in the obligation to decommission such equipment,
facilities, or devices in the timeframe set out in such agreement, the locality has the right to enter the real property of
the record title owner of such property without further consent of such owner and to engage in decommissioning, and
(ii) such owner, lessee, or developer provides financial assurance of such performance to the locality in the form of
certified funds, cash escrow, bond, letter of credit, or parent guarantee, based upon an estimate of a professional
engineer licensed in the Commonwealth, who is engaged by the applicant, with experience in preparing
decommissioning estimates and approved by the locality; such estimate shall not exceed the total of the projected
cost of decommissioning, which may include the net salvage value of such equipment, facilities, or devices, plus a
reasonable allowance for estimated administrative costs related to a default of the owner, lessee, or developer, and
an annual inflation factor.
COUNTY of FREDERICK
Department of Planning and Development
540/ 665-5651
Fax: 540/ 665-6395
MEMORANDUM
TO: Frederick County Board of Supervisors
CC: Kris C. Tierney, County Administrator
Roderick B. Williams, County Attorney
Mike T. Ruddy, AICP, Director of Planning & Development
Mark R. Cheran, Zoning Administrator
FROM: M. Tyler Klein, AICP, Senior Planner
SUBJECT: Solar (Photovoltaic) Energy Facilities Text Amendment – Update
DATE: July 26, 2018
This is an update to the proposed text amendment to Chapter 165 – Zoning Ordinance to add solar
(photovoltaic) power generating facilities (i.e. solar farms) to the permitted use list for the RA
(Rural Areas) Zoning District. This item was previously discussed by the Board of Supervisors on
January 10th, February 14th and April 11th. Following our last discussion, the Board of Supervisors
had directed Staff to make the proposed use a “conditional use” and provide additional
supplemental use regulations to address abandonment on the facility and return of the land to its
pre-development state. At the time of the presentation to the Board, the premise of the draft text
amendment, as supported by the Development Review and Regulations Committee (DRRC), and
previously discussed by the Planning Commission, was that because solar farms are typically
“privately-owned”, they would not qualify as “public utility” generating facilities.
Since the Board discussion in April, the County Attorney and the Planning and Development Staff
have met and determined that solar (photovoltaic) energy facilities would appear to qualify as
“public utility generating” facilities and would otherwise today be allowed by-right in the County’s
RA Zoning District. The Zoning Ordinance currently permits a by-right use in the RA Zoning
District, “Public utility generating, booster, or relay stations, transformer substations, transmission
lines, and towers, pipes, meters, and other facilities, railroad facilities, and sewer and water
facilities and lines owned by public utilities, railroad companies or public agencies” (§165-
401.02(Q)). The term “public utility” does not address the public or private nature of the ownership
of the facility; most electricity generating facilities in the United States are owned by “private”
entities as opposed to government, i.e. “public” entities.
Further, the Frederick County Zoning Ordinance does not define the term “public utility” and
definitions not included in the definitions section of the Zoning Ordinance “shall have the meaning
ascribed to such word, term or phrase in the most recent addition of Merriam-Webster’s Dictionary
unless, in the opinion of the Zoning Administrator, established customs or practices in Frederick
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County, Virginia justify a different or additional meaning” (§165-101.02). Webster’s defines
“public utility” simply as “a business organization (such as an electric company) performing a
public service and subject to special governmental regulation.” This definition does not limit the
concept of a “public utility” to entities that sell electricity directly to the public or to entities that
are publicly traded and therefore does not exclude from its reach solar farms owned by non-
publicly traded entities. Within the Code of Virginia §56-1, nothing in the definition of public
service companies suggests a distinction between the types of companies that operate solar farms
and the types of companies that operate other types of electricity generation facilities. State law
specifically regulates solar facilities as it does other electricity generating facilities, regardless of
the nature of ownership, by requiring the operator to seek a certificate of public convenience and
necessity from the State Corporation Commission (SCC) (§56-265.2). The County would
recognize a solar energy facility as a public utility under this interpretation.
This determination of solar electric generating facilities qualifying as a “public utility” would not
preclude the Board of Supervisors in the future from further regulating solar (photovoltaic) energy
facilities as allowed under the Code of Virginia or excluding them all from the current allowance
in §165-401.02(Q). Staff notes that possible supplementary regulations as previously discussed,
such as a requirement for removal of the facilities upon abandonment of use would place them in
a category currently unique to telecommunications towers. As well, any requirement for a bon d
securing the removal of an abandoned facility might be sufficient economic disincentive as t o
preclude any use of the opportunity that would be enabled by the ordinance generally.
Please contact the County Attorney’s office or Planning and Development Staff directly with any
questions or comments. Unless otherwise directed by the Board of Supervisors, Staff will proceed
with the above interpretation to allow solar energy facilities (i.e. solar farms), by right, under the
present allowance for public utilities in the RA Zoning District.
MTK/pd
E
COUNTY of FREDERICK
Department of Planning and Development
540/ 665-5651
Fax: 540/ 665-6395
MEMORANDUM
TO: Frederick County Planning Commission
FROM: M. Tyler Klein, AICP, Senior Planner
SUBJECT: Ordinance Amendment – Conditional Use in the RA (Rural Areas) Zoning
District – Public Hearing
DATE: October 8, 2019
The Board of Supervisors directed the Planning Commission to evaluate the CUP process and
those listed conditional uses to ensure that the uses, and scale of the uses, are appropriate for the
zoning district in which they are allowed. This would include identifying those uses that may be
more appropriate in a commercial zoning district; such as larger service stations, motels, and
larger retail stores. This direction was presented to the Planning Commission on July 17, 2019.
As a result, this is a proposed amendment to Chapter 165 – Zoning Ordinance to:
1. Further define the conditional use country general store to exclude all fuel sales and cap
the square footage allowed at 3,500 square feet (SF);
2. Providing additional regulations for specific uses (country general store);
3. Eliminate, combine, and refine certain conditional uses; and
4. Codify certain Zoning Determinations relating to home occupations, cottage occupations,
and kennels to reduce the number of Conditional Use Permit (CUP) applications.
The purpose of the proposed amendment is to add clarity to specific uses where intensity of a given
use is important in considering its appropriateness for a CUP; and to provide consistency in
allowance and implementation of certain uses.
This item was discussed by the DRRC at their August 22nd regular meeting. The DRRC agreed
with the proposed changes presented, and further amended the section to eliminate “treatment
homes” from the conditional use list, and recommended the item be forwarded to the Planning
Commission for discussion. The Planning Commission discussed this item on September 4th and
the Board of Supervisors discussed this item on September 25th. The Board sent the item, as
presented, forward to public hearing.
The attached document shows the existing ordinance with the proposed changes (with bold italic
for text added). This proposed amendment is being presented to the Planning Commission as
a public hearing item. Staff is seeking a recommendation from the Planning Commissi on.
The recommendation from the Planning Commission will be forwarded to the Board of
Supervisors.
Attachments: 1. Revised ordinance with additions shown in bold underlined italics.
2. Background on Conditional Use Permit approvals and country
general stores.
MTK/pd
Revised 10/2/19
Page 1 of 6
ARTICLE I
General Provisions; Amendments; and Conditional Use Permits
Part 101
General Provisions
§165-101.02. Definitions and word usage.
COTTAGE OCCUPATION – An occupation or profession customarily carried out in a dwelling unit or
accessory building, which:
A. Actually is carried on wholly within the principle residential building or an accessory building or
structure;
B. Is carried on by no more than one person other than members of the family residing on the
premises; and
C. Is clearly incidental and secondary to the use of the dwelling unit for residential purposes; and
D. Serves more than five (5) customers per day.
COUNTY GENERAL STORE - A retail business, without accessory fuel sales, not to exceed 3,500
square feet gross retail floor area, allowed where specified in the rural zoning districts which sells
groceries along with a variety of other retail goods.
HOME OCCUPATION - An occupation or profession customarily carried on in a dwelling unit, which:
A. Actually is carried on wholly within the principle building or structure;
B. Is carried on by members of the household residing on the premises;
C. Is clearly incidental and secondary to the use of the dwelling unit for residential purposes with no
exterior display, no exterior storage of materials and no exterior indication of the home
occupation or variation from the residential character of the principle building and neighborhood;
D. Produces no offensive noise, vibrations, smoke, dust, heat, odor, glare, traffic hazard or
congestion and does not adversely affect the surrounding properties; and
E. Requires no internal or external alterations or construction features or equipment or machinery
not customary in residential areas; and
F. Serves no more than five (5) customers per day.
KENNEL - A place prepared to house, board, breed, handle, or otherwise care for dogs for sale or in
return for compensation. One (1) litter of dogs breeding for compensation per household per year shall
not be defined as a kennel and will be considered as a Home Occupation.
Revised 10/2/19
Page 2 of 6
Part 103
Conditional Use Permits
§165-103.03. Conditions.
In granting a conditional use permit, the Board of Supervisors may place appropriate conditions on the
permit. Such conditions shall be considered to be a part of the requirements of this chapter. Violations of
the established conditions shall constitute violations of this chapter. The conditions established as a part
of the approval of a conditional use permit may be modified only through the full application procedures
described in this section. Conditions which may be placed on the conditional use permit may include but
need not be limited to conditions which address the following issues:
GG. The expiration of the use following the sale or transfer of the property from the current owner(s).
HH. The expiration of the conditional use permit if the use is not established within 24 months of
approval.
Revised 10/2/19
Page 3 of 6
ARTICLE II
Supplementary Use Regulations; Parking; Buffers; and Regulations for Specific Uses
Part 204
Additional Regulations for Specific Uses
§165-204.32. Country General Store without fuel sales.
Country general stores located in the RA Rural Areas Zoning District shall meet the following
requirements:
A. A country general store may not exceed 3,500 square feet (SF) of gross retail floor area.
B. Country general stores may not include accessory fuel sales.
C. A site plan shall be submitted to and approved by Frederick County prior to the establishment
of the use.
D. B2 General Business Zoning District standards apply including building height, building and
parking setbacks, buffering, screening, and landscaping standards.
E. All new buildings require building permits reviewed and approved by Building Inspections.
Existing buildings should conform to the requirements under Article IX.
F. Any expansion of an approved country general store, store requires approval of a new
conditional use permit (CUP).
Editor’s Note: Retail uses with a square footage in excess of 3,500 SF or with fuel sales shall be located within or adjacent to
a designated Rural Community Center, as defined in the Comprehensive Plan, and /or require a rezoning application to a
business district.
Revised 10/2/19
Page 4 of 6
ARTICLE IV
Agricultural and Residential Districts
Part 401
RA Rural Area District
§165-401.02. Permitted uses.
KK. Blacksmith shops (SIC 5431)
LL. Farriers
MM. Horseshoeing
NN. Taxidermists
§165-401.03. Conditional Uses.
A. Bed-and-breakfast; farm stay.
B. Country Clubs, with or without banquet facilities
C. Manufacture or sale of feed and other farm supplies and equipment.
D. Fruit packing plants.
E. B. Off-premise farm markets and wayside stands.
F. Off-premise wayside stands.
G. C. Country General Store without fuel sales.
H. Service stations.
I. D. Antique shops.
J. E. Restaurants without drive-thru facilities provided the following conditions are met:
(1) Restaurants shall have an approved drainfield; alternative waste systems including pump
and hauls are prohibited.
K. F. Kennels
L. Petting farms.
M. Television or radio stations.
N. Motels.
O. G. Auction Houses
Revised 10/2/19
Page 5 of 6
P. H. Campgrounds, tourism camps, recreation areas and resorts.
Q. I. Commercial outdoor recreation, athletic or park facilities, or Country Clubs with or without
banquet facilities.
R. Nationally chartered fraternal lodges, civic clubs, social centers and their related facilities.
S. J. Sawmills and planing mills, Type B.
T. Ambulance Services
U. K. Retailing or wholesaling of nursery stock and related products.
V. L. Landscape contracting businesses.
W. M. Public Garages without body repair, provided that the following conditions are met:
(1) All repair work shall take place entirely within and enclosed structure.
(2) All exterior storage of parts and equipment shall be screened from the view of surrounding
properties by an opaque fence or screen at least six feet in height. The fence or screen shall be
adequately maintained.
X. Public Garages with body repair, provided that the following conditions are met:
(1) All repair work shall take place entirely within and enclosed structure.
(2) All exterior storage of parts and equipment shall be screened from the view of surrounding
properties by an opaque fence or screen at least six feet in height. The fence or screen shall be
adequately maintained.
Y. N. Sand Shale and clay mining, provided the following conditions are met:
Z. O. Cottage Occupations
AA. P. Cottage occupation signs.
BB. Q. Veterinary office, clinic, or hospital, including livestock services.
CC. R. Day-care facilities.
DD. S. Humanitarian aid organization office.
EE. T. School (with residential component)
FF. Fruit and vegetable stand.
GG. Blacksmith shops.
HH. Farriers.
Revised 10/2/19
Page 6 of 6
II. Horseshoeing.
JJ. U. Taxidermists.
KK. V. Welding repair.
LL. W. Flea markets, operated indoors or outdoors.
MM. Treatment home.
NN. X. Special event facility.
OO. Y. Commercial shooting and archery ranges (indoor or outdoor).
PP. Z. Ice cream parlor or bakery.
QQ. AA. Craft and gift shops.
RR. BB. Offices and clinics of doctors of medicine, dentists and other health practitioners.
SS. CC. Slaughterhouse.
Background:
To provide additional perspective on conditional uses in the rural areas, Staff has included: 1) a
history of conditional uses approved over the last 20-year period, and 2) a listing of the sizes of
Country General Stores and select commercial/retail uses to assist when evaluating the scale of
such uses.
1) Since 1999, the following conditional uses have been approved in the RA Zoning District
(by type and number of approved applications):
• Special Event Facilities: 5
• Public Garages (with or without body repair): 13
• Kennels: 9
• Landscape Contracting Businesses/Retail Nurseries: 9
• Telecommunications Towers: 23
• Farmers Markets/Off-Premise Wayside Stands: 2
• Commercial Recreation (indoor or outdoor): 7
• Country General Stores: 7
• Motels/Bed & Breakfasts: 8
• Antique Shops: 3
• Restaurants: 3
• Day-Care Facilities: 14
• Welding Repair: 2
• Flea Markets: 1
• Taxidermy: 1
• Sand Mines: 3
• Campground: 1
• Veterinary Clinics: 2
• Fraternal Lodges: 1
• Misc. (don’t fall under currently listed conditional uses): 3
2) For purposes of comparison, the square footage of select Country General Stores within
the RA District is provided in addition to the square footage of select Commercial/Retail
uses located within the County’s Sewer and Water Service Area (SWSA).
Commercial/Retail Properties (within SWSA):
• Family Dollar (Stephens City – B2) – 9,230 SF (SP #41-13)
• Dollar General (Middletown – B1) – 9,301 SF
• Dollar Tree (Winchester Gateway – B2) - +/- 14,000SF
• Dollar Tree (Stonewall Plaza – B2) – 13,600 SF
• The Country Store (Senseny Road – B1) – 4,872 SF
Average SF: 10,218 SF
*Note: Dollar General (Route 522N – RA) – 9,100 SF (proposed, withdrawn)
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County General Store Properties (within Rural Areas)
• Hogue Creek Market (Route 50W – RA) – 4,369 SF (approved CUP for County
General Store); with fuel sales
• Crossroads Grocery (Route 522N – RA) – 1,240 SF (approved CUP for Country
General Store); with fuel sales
• Shawnee Springs Market (Route 522N – B2) – 6,520 SF (SP #19-86; note
surrounded by RA zoned properties); with fuel sales
• Toms Market (Back Mountain Road – B1) – 3,016 SF; with fuel sales
• Gainesboro Market (Route 522N – RA) – 2,450 SF; with fuel sales
Average SF (County General Store): 3,519 SF