PC 10-20-21 Meeting MinutesFrederick County Planning Commission Page 3855
Minutes of October 20, 2021
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 October 20, 2021.
PRESENT: Kevin Kenney, Chairman; Roger L. Thomas, Vice Chairman/Opequon District; Gary R.
Oates, Stonewall District; H. Paige Manuel, Shawnee District; Elizabeth D. Kozel, Shawnee District;
Betsy Brumback, Back Creek District; John F. Jewell, Back Creek District; Christopher M. Mohn, Red
Bud District; Kathleen Dawson, Red Bud District; Charles E. Triplett, Gainesboro District; Alan L.
Morrison, Member at Large.
ABSENT: Robert S. Molden, Opequon District.
STAFF PRESENT: Wyatt G. Pearson, Director; Candice E. Perkins, Assistant Director; Mark R.
Cheran, Zoning & Subdivision Administrator; M. Tyler Klein, Senior Planner; Shannon L. Conner,
Administrative Assistant.
CALL TO ORDER
Chairman Kenney called the October 20, 2021 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 Thomas and seconded by Commissioner Triplett
the Planning Commission unanimously adopted the agenda for this evening’s meeting with the addition
of a Resolution for William H. Cline.
MINUTES
Upon motion made by Commissioner Thomas and seconded by Commissioner Manuel,
the Planning Commission unanimously adopted the minutes from the September 1, 2021 and September
15, 2021 meetings.
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Minutes of October 20, 2021
COMMITTEES
Frederick Water – Mtg. 09/21/21
Commissioner Jewell reported, the Board requested revisions to the Frederick Water
Articles of Incorporation. The revision would permit Frederick Water to provide services outside
Frederick County and the Board of Director for Frederick Water requested that the Frederick County
Board of Supervisors formally endorse the expansion and revise the Articles of Incorporation.
Commissioner Jewell provided information on the Opequon Water Supply Plan (OWSP) Update. He
shared the operations report for August 2021.
Transportation Committee – Mtg. 09/27/21
Commissioner Oates reported, the Committee was presented an update on County
projects and Mr. John Bishop gave a detailed explanation of the Transportation Funding in Virginia.
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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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PUBLIC HEARING
Conditional Use Permit #10-21 for David Hermens submitted to construct a wireless
telecommunication tower consisting of a 90-foot tower. The property is located at 101 Greenway
Court, Winchester, Virginia and is identified with Property Identification Number 60A-2A-A-16 in
the Back Creek Magisterial District.
Action – Recommend Denial
Mark R. Cheran, Zoning & Subdivision Administrator, reported this is a request to allow
for a 90-foot wireless telecommunication tower; the property is located at 101 Greenway Court,
Winchester, Virginia and is in the Back Creek Magisterial District. He continued, this tower is located on
a 2.4 +/- acre property that is zoned RA (Rural Areas) Zoning District and is primarily used for residential
purposes; the site is surrounded by other residential RA zoned properties. Mr. Cheran shared a zoning
map of the property and surrounding area. He noted, the Frederick County Zoning Ordinance allows for
the construction of telecommunication facilities in the RA Zoning District only with an approved CUP.
Mr. Cheran explained, the subject tower was constructed without an approved CUP and therefore is a
violation of the Zoning Ordinance; the applicant is seeking approval of this CUP to abate the zoning
violation. Mr. Cheran shared the conditions for this CUP as recommended by Staff.
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1. All review agency comments and requirements shall be complied with at all
times.
2. The tower shall be available for collocating personal wireless service providers.
3. The tower shall be removed by the Applicant or property owner within twelve
(12) months of abandonment of operation.
4. Any expansion or modification of this use will require a new Conditional Use
Permit.
Commissioner Thomas inquired if it should be stated in the conditions that should the
tower fall, it should fall within the property. Mr. Cheran commented that can certainly be added however
he does not feel this will be an issue. Commissioner Jewel asked who built the tower. Commissioner
Morrison commented it does appear if the tower would fall it would remain on the property and it does
not seem it would be a problem. Mr. David Hermens, the Applicant came forward to address questions.
He stated Verizon Wireless built the tower.
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.
Chairman Kenney noted how often people forget about getting permits for things and it is
his understanding the Applicant is trying to get things in order. Commissioner Jewell stated he is
concerned with this application. Commissioner Morrison stated that on the paperwork associated with
this application it says Winchester Wireless erected this tower. Commissioner Manuel commented that
the paperwork also gives a diagram of the tower and how it would fall. Commissioner Kozel asked how
many homes this will provide service to. Mr. Hermens stated just one and he was advised it could also
co-locate. Commissioner Brumback asked when the tower was built, and Mr. Hermens stated 2020. She
commented one of the memos says it violates the covenants of the development. Mr. Hermens
commented there are no covenants or HOA.
Chairman Kenney asked how many companies will be using the tower. Mr. Hermens
noted he is uncertain at this point however the conditions state it is available for co-locating.
Commissioner asked Mr. Hermens if he had internet access prior to last year and he stated yes however
the service was horrible. Commissioner Jewell asked if he was aware of any other available services in
the area and Mr. Hermen stated no to his knowledge.
Upon a motion made by Commissioner Jewell and seconded by Commissioner Oates
BE IT RESOLVED, the Frederick County Planning Commission does recommend denial of Conditional
Use Permit #10-21 for David Hermens submitted to construct a wireless telecommunication tower
consisting of a 90-foot tower. The property is located at 101 Greenway Court, Winchester, Virginia and
is identified with Property Identification Number 60A-2A-A-16 in the Back Creek Magisterial District.
Yes: Jewell, Brumback, Kozel, Manuel, Oates, Thomas, Triplett, Mohn, Kenney
No: Dawson, Morrison
(Note: Commissioner Molden was absent from the meeting.)
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Conditional Use Permit #11-21 for Bartonsville Energy Facility II, LLC submitted to construct an
approximately 430+/- acre (disturbed area) utility-scale solar power generating facility located on a
property totaling approximately 636.7 +/- acres (known as the “Phase II Expansion Area). The
properties are generally located south of Marlboro Road (Route 631), on the east and west side of
Strode McLeod lane, west of CSX rail corridor, and south and west of the Town of Stephens City in
Frederick County. The properties subject to the Phase II Expansion Area are identified with
Property Identification Number 73-A-104, 74-A-18, 74-A-18A, 74-A-18B, 74-A-19, 74-A-20, and 85-
A-1, in the Back Creek Magisterial District. This application also revises CUP #05-21, approved by
the Frederick County Board of Supervisors on September 23, 2020 for Bartonsville Energy Facility,
LLC, to locate solar arrays on the property identified with Property Identification Number 74-A-
20. All other elements of the previous CUP approval, remain unchanged under the Phase II
application.
Action – Recommend Approval
Commissioner Mohn would abstain from all discussion on this item for a possible
conflict of interest.
M. Tyler Klein, Senior Planner, reported this is a request for a Conditional Use Permit
(CUP) to allow for utility-scale solar power generating facility. The property is located in the Back Creek
magisterial district south of Marlboro Road (Route 631), on the east and west side of Strode McLeod
Lane Road, west of CSX rail corridor, and south and west of the Town of Stephens City. He stated this
facility is located on a 636.7 +/- acre property that is zoned RA (Rural Areas) Zoning District and
primarily used for agricultural purposes. Mr. Klein shared a locations map of the property. He continued,
this project will generate 40 to 60 megawatts (MW) of photovoltaic (solar) energy; 430 acres will be
utilized for the installation of rows of ground-mounted photovoltaic modules, commonly known as solar
panels, other necessary equipment for facility operations (a substation and inverters), vehicle access paths,
security fencing and landscaping. Mr. Klein commented, power generated will be combined, converted,
and increased to allow delivery to the adjacent First Energy 138 kilovolt (KV) transmission line. He
noted, the remaining land on site will be maintained for agricultural use by the property owners.
Mr. Klein reported, this application includes a parcel associated with CUP #05-21,
approved by the Frederick County Board of Supervisors on September 23, 2020 for Bartonsville Energy
Facility, LLC, to locate solar arrays on the property identified with PIN 74-A-20 and was previously only
an interconnection parcel. He noted, all other elements of the previous CUP approval, remain unchanged
under the Phase II application. Mr. Klein shared a map depicting the Phase I and Phase II projects. He
explained the Zoning Ordinance conformance and the site plan review and approval under Article VIII:
• A Concept Plan (revised 10/12/21) was submitted with the application
• Setbacks of 100 ft to 200 ft are proposed around the perimeter of the project
• Landscaping/Screening provided through a “Landscape Buffer” and existing
vegetation
• Access to the site is proposed through two (2) entrances one (1) from Marlboro
Road (Route 631) via Strode McLeod Lane to be used for construction access
and general site access (for maintenance post-construction), and one (1) entrance
from Family Drive also using Strode McLeod Lane to be used only for
emergency access
Mr. Klein presented visuals of the Concept Plan. He shared the Zoning Ordinance
conformance in regards to the Decommissioning Plan:
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• Decommissioning Plan submitted with the application
• Provisions for removal of all equipment; site restored to “pre-development
condition”
• Specified entering into a written agreement and “financial security” with
Frederick County for life of the project in conformance with Zoning Ordinance
requirements and the Code of Virginia
• Estimated costs for decommissioning are reviewed and updated every five (5)
years
Mr. Klein reviewed the Comprehensive Plan Conformance associated with this
application:
• The 2035 Comprehensive Plan envisions this area of the County to remain
primarily rural in nature and for agricultural land to be preserved for future
generations
• The preservation of the underlying land maintains the ability for agricultural uses
in the future
• The use, once in operation, is highly passive, it does not generate noise, odor,
glare, or traffic and is proposed to be extensively screened from view minimizing
adverse effects on surrounding properties
Mr. Klein shared other permitting and agreements pertaining to this application: in
addition to requirements contained in the Zoning Ordinance, the Applicant will pursue a “Permit-by-
Rule” (PBR) through the Virginia Department of Environmental Quality (DEQ), the PBR is a state-level
administrative review and approval process, including extensive environmental and cultural review and
study; the Applicant will also be seeking approval of a “solar siting agreement” outlined in the Code of
Virginia §15.2-2316.7. The solar siting agreement is to be considered by the Board of Supervisors. Mr.
Klein presented the Conditions of this CUP as recommended by Staff:
1. All review agency comments provided during the review of this application shall
be complied with at all times.
2. An engineered site plan, in accordance with the requirements of Article VIII of
the Frederick 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 §165-204.26 of
the Frederick County Zoning Ordinance and be in general conformance with the
Phase II Expansion Area Concept Plan, included with the CUP application,
prepared by Greenway Engineering, dated October 12, 2021.
3. Prior to site plan approval, the owner shall enter into a written agreement 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.
The written agreement shall be updated every five (5) years and in general
conformance with the Exhibit D: Expansion Area Decommissioning Plan,
included with the Cup application, prepared by Torch Clean Energy, dated
September 2021.
4. Batteries, for the purposes of mass storage of electricity that will eventually be
transferred to the grid, are prohibited as part of this CUP.
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5. Access to the site shall be limited to two (2) entrances: one (1) entrance from
Marlboro Road (Route 631) via Strode McLeod lane to be used for construction
and general site access, and one (1) entrance from Family Drive using Strode
McLeod lane to be used for emergency access only and the entrance
configuration be in general conformance with the Phase II Expansion Area
Concept Plan, included with the CUP application, prepared by Greenway
Engineering, dated October 12, 2021. Delivery of solar array panel construction
materials will occur at the site access entrance off of Marlboro Road using Strode
McLeod Lane on Sheet 3 of the Concept Plan. Solar array panel materials
delivery laydown area will be restricted to Tax Parcel 74-A-18.
6. Phase 1 Archeological Survey will be completed and submitted to the
Department of Planning & Development prior to site plan approval. This survey
should document the collection of historic structures on and around this
development and determine if this area would qualify as a rural historic district.
7. Pile-driving of poles for solar arrays during construction shall be limited to 7:00
a.m. to 5:00 p.m. Monday through Friday and 7:00 a.m. to 5:00 p.m. on Saturday.
No construction activities are permitted on Sundays.
8. Any expansion or modification of this land use will require the approval of a new
CUP.
Mr. Klein concluded, any recommendation for approval should also include a statement
affirming that the proposed solar facility is in substantial accordance with the Comprehensive Plan.
Commissioner Oates and Commissioner Jewell expressed concern if the project were not
to be approved the alternative use may be residential homes which would have a significant capital impact
to the County and would see the land permanently change from agriculture uses. Commissioner Thomas
expressed concern with environmental impact panels and equipment installed may have on soil
composition/suitability for agriculture in the future.
Diane Kearns spoke on behalf of her family who owns the property. She explained the
plans to keep the farm agriculture. Matthew McDonald came forward and shared his concerns with this
project and asked about the decommissioning process. Doug McDonald asked about the setbacks and is
concerned with the access through his property. Charles Heath shared his concerns with this project
being in his backyard and how this can be approved before Phase I is built. Julie Gordon presented some
statistics on solar farms and is concerned the precedent this will set since this will be the third one.
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 a motion made by Commissioner Jewell and seconded by Commissioner Brumback
BE IT RESOLVED, the Frederick County Planning Commission does recommend approval of
Conditional Use Permit #11-21 for Bartonsville Energy Facility II, LLC submitted to construct an
approximately 430+/- acre (disturbed area) utility-scale solar power generating facility located on a
property totaling approximately 636.7 +/- acres (known as the “Phase II Expansion Area). The properties
are generally located south of Marlboro Road (Route 631), on the east and west side of Strode McLeod
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lane, west of CSX rail corridor, and south and west of the Town of Stephens City in Frederick County.
The properties subject to the Phase II Expansion Area are identified with Property Identification Number
73-A-104, 74-A-18, 74-A-18A, 74-A-18B, 74-A-19, 74-A-20, and 85-A-1, in the Back Creek Magisterial
District. This application also revises CUP #05-21, approved by the Frederick County Board of
Supervisors on September 23, 2020 for Bartonsville Energy Facility, LLC, to locate solar arrays on the
property identified with Property Identification Number 74-A-20. All other elements of the previous
CUP approval, remain unchanged under the Phase II application.
Yes: Jewell, Brumback, Kozel, Manuel, Oates, Morrison, Dawson, Kenney
No: Triplett, Thomas
(Note: Commissioner Molden was absent from the meeting.)
2040 Frederick County Comprehensive Plan Update; the Plan addresses the future of Frederick
County for its Citizens. The Plan is supported by two Appendices: Appendix I, which includes
each of the County’s Area Plans (including the Kernstown Area Plan and an update to the
Southern Frederick Area Plan) and Appendix II which contains background information.
Action – Recommend Approval
Candice E. Perkins, Assistant Director, reported the Code of Virginia requires localities
to review and update their plan every five years. The current 2035 Comprehensive Plan was adopted in
January of 2017; therefore, an updated plan would need to be adopted by January 2022. She explained
the Comprehensive Plan consists of three documents:
• The Plan – chapter that focus on aspects of the County’s vision for the future.
These chapters address: Urban Areas, Rural Areas, Residential Development,
Business Development, Transportation, Public Facilities, Natural Resources, and
Historic Resources
• Appendix I – small area and joint land use plans
• Appendix II – background information such as statistics and projections
Ms. Perkins continued, the Primary Plan updates are as follows:
• Urban Areas
o Consolidating text
o Clarification of existing policies and future land uses
o Focus on ensuring new development has adequate infrastructure and
impact mitigation
• Rural Areas
o Expansion of agricultural uses and residential development
o Greater detail and overview for conservation tools/programs
• Residential Development
o Consolidating text
o Focusing residential in the UDA, housing choices
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• Business Development
o Updated data/employers
o Recognition of diversified agribusiness uses
o Text pertaining to solar
• Transportation
o Updated data and projects
o Text pertaining to revenue and funding
• Public Facilities
o Additional text regarding general government
o Updated information from FCPS, Parks, F&R, Frederick Water
o Broadband and telecommunications
• Natural Resources
o Inundation zones
o Relocation of Agricultural Districts to the Rural Areas Chapter
• Historic Resources
o Minor text edits
Ms. Perkins shared the updates to the Appendix I:
• Minor text edits and updates to data
• Growth boundary changes (UDA/SWSA)
• Land Use designation changes to reflect plan amendments
• Transportation updates to reflect current plans/changes
• Infrastructure text updates
Ms. Perkins explained, Appendix II primarily contains background data and therefore
these figures have been updated to reflect current data available. She noted, applicable sections of The
Plan were reviewed and updated by Frederick County Public Schools, Parks and Recreation, Fire and
Rescue, the Airport Authority, the Economic Development Authority, Frederick Water, and the
Transportation Committee. Ms. Perkins concluded, the Comprehensive Plans and Programs Committee
(CPPC) discussed these updates at their March, April, June, July and August 2021 meetings; the draft
updates were endorsed at the August meeting and set forward to the Planning Commission. The Planning
Commission held a discussion on September 1, 2021 and the Board of Supervisors discussed The Plan at
their September 22, 2021 meeting and sent it forward to Public Hearing.
Chairman Kenney called for anyone who wished to speak regarding this Public Hearing
to come forward at this time.
Mr. John Light of the Stonewall District came forward and commented the need for a
NELUP study. He explained the benefits and the possibility of data transmission centers.
Mr. Dana Newcome, a member of the HRAB shared his concerns with the vast historical
sites within Frederick County and the need for preservation.
Mr. Logan Thompson representing Carmeuse Lime and Stone shared a brief overview of
the Company. He noted, they would like to suggest the potential modifications to the future land-use
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designations offered in the updated Area Plan maps; specifically, the maps shown on pages 3, 9, and 12 of
the document titled “2025 Comprehensive Plan, Appendix I, Area Plans”.
No one else came forward to speak and Chairman Kenney closed the public comment
portion of the hearing.
Commissioner Mohn suggested to note comments made as this is sent forward to the
Board of Supervisors. Mr. Pearson commented, Staff is already planning to visit the NELUP.
Upon a motion made by Commissioner Mohn and seconded by Commissioner Jewell
BE IT RESOLVED, the Frederick County Planning Commission does unanimously recommend approval
of the 2040 Frederick County Comprehensive Plan Update; the Plan addresses the future of Frederick
County for its Citizens. The Plan is supported by two Appendices: Appendix I, which includes each of
the County’s Area Plans (including the Kernstown Area Plan and an update to the Southern Frederick
Area Plan) and Appendix II which contains background information.
(Note: Commissioner Molden was absent from the meeting.)
Establishment of a New Agricultural and Forestal District to – this is a request to establish a new
Hayfield Agricultural and Forestal District, comprising 819.9 +/- acres. This District meets the
intent of Chapter 43, Section 15.2-433 of the Code of Virginia, 1950, as amended, and has been
evaluated in conjunction with the 2035 Comprehensive Plan.
Action – Recommend Approval
Mark R. Cheran, Zoning & Subdivision Administrator, reported this is a request to create
a new Agricultural and Forestal District “Hayfield District” that totals 819.9 +/- acres and is located
within the Back Creek Magisterial District and is generally located 2.5 miles west of the intersection of
Route 50 and South Hayfield Road (Route 600). He noted, the proposed District would consist of five
parcels managed by one (1) property owner. Mr. Cheran explained, there are currently nine (9)
Agricultural and Forestal Districts and the advantages of the programs are: Land use taxation; preserving
land for open space; promotes agribusinesses and long-range agricultural planning; and bonus density for
the County’s Transfer of Development Rights Program (1 density right = 2 dwelling units). Mr. Cheran
presented mapping of the proposed District. He concluded, the Agricultural District Advisory Committee
(ADAC) recommended approval of the Hayfield District at their meeting on September 21, 2021.
Chairman Kenney asked how much of the property could be used for buildable lots. Mr.
Cheran commented there would not be much because the land is very sloping. Mr. Bo Bassler the
Applicant stated about 300 acres are rolling topography and about 400 acres are on the side of the
mountain. Mr. Bassler noted he plans to live there and has no plans for development.
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 a motion made by Commissioner Jewell and seconded by Commissioner Thomas
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BE IT RESOLVED, the Frederick County Planning Commission does unanimously recommend approval
of the Establishment of a New Agricultural and Forestal District to – this is a request to establish a new
Hayfield Agricultural and Forestal District, comprising 819.9 +/- acres. This District meets the intent of
Chapter 43, Section 15.2-433 of the Code of Virginia, 1950, as amended, and has been evaluated in
conjunction with the 2035 Comprehensive Plan.
(Note: Commissioner Molden was absent from the meeting.)
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OTHER
Mr. Wyatt G. Pearson, Director, presented the current planning applications. He asked
the Commissioners to inform him if any should still require having a cellular connection for the iPads.
Mr. Pearson reminded everyone of the upcoming Transportation Forum.
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ADJOURNMENT
No further business remained to be discussed and a motion was made by Commissioner
Thomas to adjourn the meeting. This motion was seconded by Commissioner Triplett and unanimously
passed. The meeting adjourned at 8:45 p.m.
Respectfully submitted,
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Kevin W. Kenney, Chairman
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Roderick B. Williams, Secretary