HomeMy WebLinkAbout08-06 ApplicationAPPEAL APPLICATION #08 -06
AROGAS, INC.
Staff Report for the Board of Zoning Appeals
Prepared: July 21, 2006
Staff Contact: Mark R. Cheran, Zoning Administrator
This report is prepared by the Frederick County Planning Staff to provide information to the
Board of Zoning Appeals to assist them in making a decision on this request. It may also be
useful to others interested in this zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
May 16, 2006 Withdrawn by Applicant
August 15, 2006 Pending
LOCATION: The property is located at the intersection of Rest Church Road (Route 669) and
Martinsburg Pike (Route 1 1 North).
MAGISTERIAL DISTRICT: Stonewall
PROPERTY ID NUMBER(S): 34 -A -4
PROPERTY ZONING USE: Zone: B2 (General Business) District
Land Use: Vacant
ADJOINING PROPERTY ZONING USE:
North: M I (Light Industrial) District Land Use: Vacant
East: MI (Light Industrial) District Land Use: Vacant
South: B2 (General Business) District Land Use: Vacant
West: B2 (General Business) District Land Use: Commercial
APPEAL: To appeal the decision of the Zoning Administrator pertaining to the proffered uses on
this property.
REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator
regarding the proffered uses on this property and rejection of a site plan for the uses on this property.
Appeal Application #08 -06, Arogas, Inc.
July 21, 2006
Page 2
STAFF COMMENTS: A site development plan was received by the Frederick County Planning
Department on April 13, 2006. Staff was unable to process the site plan due to a discrepancy
between the proposed use of the property and the proffers associated with the property. The project
site lay -out of this property would indicate that the use of this property would be over the -road truck
fueling. This proposed use is not in conformance with the assigned proffers for this property. Staff
returned the application fee and site plan to the applicant's engineer.
The applicant is appealing the decision of the Frederick County Zoning Administrator regarding
proffers assigned to Rezoning #02 -04, which was approved by The Frederick County Board of
Supervisors on April 27, 2004. This land use action rezoned the property from RA (Rural Areas) to
B -2 (Business General) Zoning District and M -1 (Industrial Light) Zoning District. The Frederick
County Zoning Ordinance, Section 165 -13 (E) states: proffers assigned with any rezoning shall be
enforced by the Zoning Administrator.
It is important to note that proffers are conditions that a property owner offers to be placed on the
owner's property when the owner asks the County to rezone the property. When a rezoning is
approved with proffers, the proffers provide restrictions on the property beyond the regulations in the
zoning district in which the property is located. Therefore, in this case, although the property is
located in the B -2 zoning district, and although the provisions of the B -2 zoning district permit truck
stops and the sale of diesel fuel for over the -road carriers, the approved proffers on the property have
removed those uses as permitted uses on this property.
The applicant is appealing the decision of the Zoning Administrator in the enforcement of proffers of
this rezoning. These include the following:
1. The Frederick County Zoning Ordinance allows Standard Industry Code (SIC) 55 in its B -2
Zoning District. A subtitle of SIC 55 is SIC 5541which allows motor fuel to all types of
vehicles and truck stops.
Staff Response: Proffers for Rezoning #02 -04 do not allow the retail or wholesale sale of diesel
fuel for over the -road truck carriers. The use of SIC 5541 is a moot point per the proffers
assigned to this rezoning.
2. The Frederick County Code does not define "over -the -road truck carriers."
Staff Response: The Frederick County Zoning Ordinance, Section 165 -156, defines tractor
trailer truck for hauling freight. A tractor- trailer by this definition is used for any over -the -road
truck for hauling and has the same meaning. This definition is further defined in the Merriam
Webster Dictionary.
Appeal Application #08 -06, Arogas, Inc.
July 21, 2006
Page 3
a. Void for vagueness
b. Unconstitutionally interferes with interstate commerce
c. Arbitrary and capricious
d. Procedurally defective
3. The proffer "Any use involving the retail or wholesale sale of diesel fuel for over -the -road
truck carriers shall not be conducted or performed on this site or the commercial or industrial
zones."-is:
Staff Response: The proffers clearly state that diesel fuel retail or wholesale for over -the-
road truck carriers shall not be allowed, and there is no vagueness in the way the proffer is
enforced and referenced. Interstate commerce has no bearing on the decision of the Zoning
Administrator and is not unconstitutional due to the assigned proffers on this property. The
applicant should have read and understood the proffers prior to submitting a site plan for
review.
The decision of the Zoning Administrator was not arbitrary or capricious in the enforcement of
the proffers and the procedure on returning the site plan. The site plan could not be reviewed
by the staff due to the site lay -out. The site plan clearly shows pavement details for heavy truck
traffic use, and clearly shows fuel islands and parking spaces to accommodate over -the -road
trucks. This site plan, if approved by staff, would be a violation of the proffers assigned
through the approved rezoning.
The decision of the Zoning Administrator with regards to the enforcement and interpretation of the
proffers assigned with Rezoning #02 -04 is correct and not arbitrary and capricious as the applicant
contends. The applicant should have read and understood the proffers before investing the time and
money to develop this property. Staff was in no position to review and approve the site plan as
presented and, therefore, returned the site application to the applicant. "Ihe only issue this Board o f
Zoning Appeals must address is to affirm or overrule the Zoning Administrator's decision in not
reviewing the applicant's site plan pertaining to the proffers assigned to this property. Any changes
to these proffer uses are a legislative action, and are beyond the scope of the Board of Zoning
Appeals. The Frederick County Board of Supervisors is the only body that can approve any changes
to the uses or proffers assigned to this property.
STAFF CONCLUSIONS FOR THE AUGUST 15, 2006 MEETING: Staff is requesting to affirm
the decision of the Zoning Administrator in the administration of the Frederick County Zoning
Ordinance regarding the proffered uses on this property and was correct in not reviewing the
applicant's site plan.
T] A 17
INTERSTATE ORCHARD. INC. THE L./
JOHNSON, CHERYL D HALLS
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EM (Extractive Manufacturing District) Q RA(Rural Ara aa District)
NE (Higher Education Dsbil) Q RP (Residential Performance District)
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APP 08 06 Arogas, Inc.
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APP 08 06 Arogas, Inc.
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April 19, 2006
Triad Engineering, Inc.
Attn: Mr. Dennie Dunlap
200 Aviation Drive
Winchester, VA 22602
RE: Arogas Facility Site Development Plan
Whitehall Commerce Center
Dear Mr. Dunlap:
107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000
COUNTY of FREDERICK
Department of Planning and Development
540/665 -5651
FAX: 540/665 -6395
The Frederick County Planning Department received a transmittal letter from your firm
on April 13, 2006 which included a site plan application fee in the amount of $2,300.00
and two copies of a site development plan for the referenced project. Our department is
unable to process this application due to a discrepancy between the proposed use of this
property and the property's current zoning designation and associated proffers.
The proposed site development plan identifies the proposed use as commercial. Upon
further review of the use on site plan Drawing Number C -4, it is clear that the
commercial use is, in fact. a gasoline service station (SIC 5541) with fuel islands and
parking spaces appropriately sized to accommodate over the -road trucks. Additionally,
the commercial entrance detail on Drawing Number C -14, and the pavement details on
Drawing Number C -13, are designed to accommodate heavy truck traffic.
This site layout is very similar to that submitted by the developer Arogas, Inc. with
Rezoning #07 -05. In fact, with Rezoning #07 -05, provisions were made to accommodate
six truck diesel fuel islands; the submitted site development plan would accommodate
eight fuel islands which are dimensionally consistent to accommodate over the -road
trucks.
As stated in the proffered conditions accepted as part of the rezoning application for the
subject property, which has been included on the site development plan's coversheet,
"Any use involving the retail or wholesale of diesel fuel for over the -road truck carriers
shall not be conducted or performed on this site either in the commercial or industrial
zones." The submitted site plan clearly accommodates truck diesel fuel islands and
associated truck parking, consistent with Arogas, Inc.'s rezoning application.
Sincerely,
Mr. Dennie Dunlap
RE: Arogas Facility Site Development Plan
April 19, 2006
Page 2
The development of this parcel as proposed by your site plan would necessitate a proffer
amendment to enable the sale of diesel fuel for over the -road truck carriers. Please find
attached the information that was provided to our department on April 13, 2006 under
your transmittal letter. This information is being returned to your attention as not
approvable based on our determination that the proposed use is a prohibited use on this
property.
You may have the right to appeal this site development plan submittal rejection within
thirty (30) days of the date of this letter in accordance with Section 15.2 -2311 of the
Code of Virginia. This decision shall be final and unappealable, if it is not appealed
within thirty (30) days. Should you choose to appeal, the appeal must be filed with the
Zoning Administrator and the Board of Zoning Appeals (BZA) in accordance with
Article XXI, Section 165 -155A (1), of the Frederick County Zoning Ordinance. This
provision requires the submission of an application form, a written statement setting forth
the decision being appealed, the date of decision, the grounds for the appeal, how the
appellant is an aggrieved party, any other information you may want to submit, and a
$300.00 filing fee. Once the appeal application is accepted, it will be scheduled for
public hearing and decision before the BZA.
Mark R. Cheran
Zoning Administrator
Attachments: Site Development Plan review fee, application, copies of plan
cc: T. Pat Manning, President, Arogas, Inc.
MRC/bhd
Preliminary Matters
Pursuant to Section 15.1 491.1 et. seq., of the code of Virginia, 1950, as amended, and
the provisions of the Frederick County Zoning Ordinance with respect to conditional zoning, the
undersigned applicant hereby proffers that in the event the Board of Supervisors of Frederick
County, Virginia, shall approve Rezoning Application #42 -01` for the rezoning of 101.9189 acres
from Rural Area (RA) Zoning District to Light Industrial (M -1) and 10 3492 acres from Rural
Areas (RA) to Business General (B -2) development of the subject property shall be done in
conformity with the terms and conditions set forth herein, except to the extent that such terms
and conditions may be subsequently amended or revised by the applicant and such be approved
by the Frederick County Board of Supervisors in accordance with Virginia law. Should this
petition for rezoning not be approved by the Board of Supervisors then these proffers shall be
deemed withdrawn and of no effect whatsoever. These proffers shall be binding upon the
applicant and their legal successor or assigns.
General Development Plan
The development of the subject property, and the submission of any Master Development
Plan shall be in conformance with all pertinent County regulations and shall be in substantial
conformity with the Generalized Development Plan (GDP), dated March 8, 2004, which is
attached hereto and incorporated herein by reference.
Street Improvements
REZONING REQUEST PROFFER
Property Identification Number 34 -A -2 and 34-A -4
Stonewall Magisterial District
Frederick County, Virginia
Sempeles Property
The Applicant shall design and construct an industrial access road including entrance
improvements on U.S. Route I 1 consistent with the County's adopted North East Land Use Plan
for the area, and according to uniform standards established by the Virginia Department of
Transportation (VDOT) and as may be provided in these proffers as illustrated on the
Generalized Development Plan which is attached hereto and incorporated herein by reference.
The road improvements shall include the following:
a. Along the property frontage on U.S. Route 11, the applicant shall construct curb and
gutter and storm sewer with a 12' or wider lane widening consistent with VDOT
commercial entrance standards. The applicant shall dedicate an additional 14' of right
of way along property frontage with U.S. Route 11. Two 36' or larger commercial
entrances shall be installed in approved locations, one south and one north of the
industrial access road intersection. (See 1 on the GDP). The southern commercial
entrance shall be right in/out in accordance with VDOT requirements.
Page 1 of 5
Revision 4/27/04
Rezoning Request Proffer
Property Identification Number 34 -A -2 and 34 -A-4
Stonewall Magisterial District
b. The applicant shall construct an industrial access road to VDOT standards with
centerline intersection equal to the centerline intersection of Rest Church Road and
U.S. Route 11. The industrial access shall connect with Woodbine Road. (See 2 on the
GDP). The configuration and location of this collector road addition to the road system
shall be adjusted to conform with actual proposed use of the site subject to Frederick
County and VDOT approval at the site plan stage of development. The right of way
width for this road shall be 80'.
c. The applicant shall modify the VDOT proposed stoplight from 3 way to 4 way
intersection. (See 3 on the GDP).
d. The applicant shall enter into a signalization agreement involving partial cost sharing
for the Woodbine Road/Route 11 intersection. Establishment of the signalization
agreement will correspond with development of the industrial (Ml) portion of the site,
and will therefore occur prior to approval of the first site plan for Ml development.
The timing for ultimate signalization of the intersection will be determined by VDOT.
e. The applicant agrees to provide a TIA for each industrial (M -1) use at the time of site
plan. Additional street improvements suggested by the TIA will be negotiated with
VDOT as a part of the land use permit.
Landscape Design Features
The development of the subject property, and the submission of any Master Development
Plan shall include the following landscape design features provided in these proffers and as
illustrated on the Generalized Development Plan dated March 8, 2004 which is attached hereto
and incorporated herein by reference:
o A twenty foot (20') landscaped green strip along the US Route 11 frontage portion of
the site. (See 5 on the GDP). Features within the landscape green strip include a low
berm (30" or less) with suitable low profile landscaping that will not conflict with
sight distance at entrances.
On Site Development
The applicant expects the industrial zoned portion of the site to develop with a minimum
of 1 and maximum of 8 end users depending on marketing conditions at the time of sale.
Covenants and restrictions of record shall control the standards of construction to include:
a. Facade materials of buildings facing street to be concrete masonry (CMU) brick,
architectural block, dry vit or other simulated stucco, real or simulated wood or glass.
Page 2 of 5
Revision 4/27/04
c. All buildings within the property shall be developed as a cohesive entity, ensuring
that building placement, architectural treatment, parking lot lighting, landscaping,
trash disposal, vehicular and pedestrian circulation and other development elements
work together functionally and aesthetically.
b. All buildings within the development on the property shall be constructed using
compatible architectural style and materials, and signage for such buildings shall be
of a similar style and material&
Additional Site Proffers
In addition to the proffers above, the applicant shall implement the following design
standards in construction on this site.
a. All utilities to be underground.
b. 2" caliper street trees on 50' centers along both sides of industrial access road.
c. Stormwater management pond facilities shall be lined with impervious liner materials
to preclude groundwater impacts.
d. All commercial and industrial structures shall have a geotechnical analysis and study
prepared prior to site plan approval.
e. Any use involving the retail or wholesale sale of diesel fuel for over the road trucQ
carriers shall not be conducted or performed on this site either in the commercial o
industrial zones.
Monetary Contribution to Offset Impact of Development
The undersigned, who owns the above described property hereby voluntarily proffers that
if the Board of Supervisors for the County of Frederick, Virginia approves the rezoning for the
112.2681 acre site lying on the east side of U.S. Route 11 in the Stonewall Magisterial District of
Frederick County, Virginia from RA to M -1 and B -2, the undersigned will pay to Frederick
County for the Clearbrook Fire and Rescue Company the sum of $15,000.00, the Sheriff's Office
the sum of $3,000.00 and the Administration Building the sum of $2,000.00 for a total payment
of $20,000.00, at the time the first building permit is issued.
The conditions proffered above shall be binding upon the heirs, executors, administrators,
assigns and successors in interest of the Applicant and Owner. In the event the Frederick County
Board of Supervisors grant said rezoning and accepts these conditions, the proffered conditions
shall apply to the land rezoned in addition to other requirements set forth in the Frederick County
Code.
Page 3 of 5
Revision 4/27/04
Date: s/3//
Respectfully submitted,
PROPERTY OWNER
By: By:
Geo ge M. Sempeles Carol T. Sempeles
Date: -x /3/0/
STATE OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
The foregoing instrument was acknowledged before me this?P day of CE\;
2004, by (H ecx n 1, if ._a1 1es
My commission expires Q ;?3(51
Notary Public L4Y1CAU3Q_ cf u&m
Page 4 of 5
Revision 4/27/04
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APPLICATION FOR APPEAL
IN THE
COUNTY OF FREDERICK, VIRGINIA
MUST BE TYPED OR FILLED OUT IN INK PLEASE PRINT
1. The applicant is the owner other (Check one)
2. APPL krogAs Sa. c
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NAME: M•■t+ -t Q ST\v t (11
ADDRESS -17 o «o' V
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TELEPHONE: C`10 '122 I
OCCUPANT: (if different)
NAME:
ADDRESS:
TELEPHONE:
3. The property is located at (give exact directions and include State Route numbers):
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4. Magisterial District: 5TONEw4a( /atJ'w,
5. Property Identification No.: 3 Y— A {.o TS Z a 4 Z F
6. The existing zoning of the property is:
7. The existing use of the property is: V Oft arrf
8. Adjoining Property:
USE ZONING
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South 10. Z
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9. Describe the decision being appealed. (Attach a copy of the written decision.)
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10. Describe the basis of the appeal, indicating your reason(s) for disagreeing with the decision.
(This may be provided on separate sheet.)
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11. Additional comments, if any:
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12. The following names and addresses are all of the individuals, firms, or corporations owning
property adjacent to the property for which the appeal is being sought, including properties at the
sides, rear, and in front of (across street from) the subject property. (Use additional pages if
necessary.) These people will be notified by mail of this application: (Please list Property
Identification Number.)
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12. The following names and addresses are all of the individuals, firms, or corporations owning
property adjacent to the property for which the appeal is being sought, including properties at the
sides, rear, and in front of (across street from) the subject property. (Use additional pages if
necessary.) These people will be notified by mail of this application: (Please list Property
Identification Number.)
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Mailing Address
12828 WINCHESTER AVE
4822 MARTINSBURG PIKE
4836 MARTINSBURG PIKE
6399 DEVONSHIRE LN
4810 MARTINSBURG PIKE
4804 MARTINSBURG PIKE
PO BOX 3820
409 S QUEEN ST
401 GREEN SPRING RD
1233 REST CHURCH RD
4754 MARTINSBURG PIKE
331 WOODBINE RD
331 WOODBINE RD
PO BOX 2038
4622 MARTINSBURG PIKE
4600 MARTINSBURG PIKE
4592 MARTINSBURG PIKE
1993 REST CHURCH RD
14578 MARTINSBURG PIKE
14568 MARTINSBURG PIKE
IPO BOX 580
4552 MARTINSBURG PIKE
IPO BOX 580
PO BOX 580
331 WOODBINE RD
IPO BOX 580
3733 DORT PL
4481 MARTINSBURG PIKE
IP 0 BOX 224
12400 VALLEY AVE
160 WOODBINE RD
1166 WOODBINE RD
174 WOODBINE RD
1184 WOODBINE RD
1200 WOODBINE RD
1208 WOODBINE RD
4273 MARTINSBURG PIKE
11111 2ND AVE SOUTH
II I
IIII
12973 WOODSIDE RD
1108 JULIET LN
1P0 BOX 580
PO BOX 1004
1P0 BOX 2038
Last Name
WINCHESTER AUTO DEALERS 1
RENNER, MARVIN 0 ELIZABETH S
FIDDLER, VIRGIL RUTH V
STUP, DWAYNE V CHERYL F
GOLLIDAY, OTIS E MARGIE K
SILVER, SANFORD L
WARNICK, BETTY J 1
LYNCH, JOHN FRANCIS RHONDA COE
NICHOLSON, PAUL LEE
REST METHODIST CHURCH 1
STROSNIDER,GREGORYA
SEMPELES, GEORGE M.
SEMPELES, GEORGE M
FUNKHOUSER, H N COMPANY 1
LARRICK, DELMAR B JR CYNTHIA K
KITTS, FRED MILTON REBECCA A
CURRY, THELMA M ROBIN A LIGHT
HELSLEY, JOCELYN M
FRAZIER, RANDALL R JR
'ELLIS, DELORES ESTHER
MANNING, T PATRICK AUDREY A
1SWIGER, STEPHEN D JESSICA L
[MANNING, T PATRICK AUDREY A
(MANNING, T PATRICK AUDREY A
SEMPELES, GEORGE M CAROL T
'MANNING, T PATRICK AUDREY A
SHANHOLTZ- FLICK, SHARON A
COOKE, BETTY L STINE ET ALS
'KERNS, MARY C
IMOLDEN REAL ESTATE
1SHILLINGBURG, BETTY M
'FITZWATER, BENJAMIN D. JR.
'HARDEN, JOHN W
1ROYSTON, JOHN TERA
'RITTER, JASON L
1PAUGH, ALLEN J. LINDA L.
IDEHAVEN, MANUEL C.
'LESTER PROPERTIES -VA
LIGHT, JOHN HUYETT
SMALLWOOD, DONALD Y BARBARA N
'MANNING, T PATRICK AUDREY A
(MIDDLE RIDGE TRADITIONAL STONE
ICLAYTOR, ROBERT W
Parcel ID Number
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I (we), the undersigned, do hereby respectfully petition the Frederick County Board of Zoning
Appeals (BZA) to overrule the administrative interpretation of the County Zoning Ordinance as
described herein. I agree to comply with any conditions required by the BZA.
I authorize the members of the BZA and Frederick County officials to go upon the property
for site inspection purposes.
I hereby certify that all of the statements and information contained herein are, to the best o f
my knowledge, true.
SIGNATURE OF APPLICANT
SIGNATURE OF OWNER
(if other than applicant)
BZA PUBLIC HEARING OF ,q
-DAT
APPEAL OVERRULED
File 0 \Land Use Applications\ Application Forms \APPEAL
Revised 01/14/03
AGREEMENT
APPEAL 65
OFFICE USE ONLY-
APPEAL SUSTAINED SIGN
DATE:
DATE y Z l- 06
God
DATE t Z 6
ACTION:
.t_a_adirs
BZA CH
Planning Office, County of Frederick, Virginia, 107 North Kent Street, Winchester, Virginia 22601
Phone 540 -665 -5651
Facsimile 540- 665 -6395
Know All Men By These Presents: That I (We)
toile. M Ster<TrAcs (Phone) S9 0 (4(01 S COZ
(Address) 331 U.)eoel "e ``2 ad 1 eccixer8 v k ni, v-J
the owner(s) of all those tracts or parcels of land "Property") conveyed to me (us), by deed recorded in the
Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by
(Name)
Instrument No.
Parcel: 3 9 Lot: 24 Block: 4 Section: Subdivision: L,+Cha 1 I Co n Aage
do hereby mak constitute and appoint:
--yy 4—
(Name) t+i, WI
(30"1 A a f -tr V 4 M ZZ
t (Phone) S I0 7(oI (o%
(Address) TO 11 '�i 1 \JO% N cLe .Me V. "7Z y
To act as my true and lawful attorney -in -fact for and in my (our) name, place and stead with full power and
authority I (we) would have if acting personally to file planning applications for my (our) above described
Property, including:
Signature(s)
YN t� RCt-
Notary Vi blic
Special Limited Power of Attorney
County of Frederick, Virginia
on Page and is described as
Rezoning (Including proffers)
Conditional Use Permits
Master Development Plan (Preliminary and Final)
Subdivision
Site Plan
My attorney -in -fact shall have the authority to offer proffered conditions and to make amendments to
previously approved proffered conditions except as follows:
This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or
modified.
In witness thereof, I (we) have hereto set my (our) hand and seal this day of Kf 200 (p,
i
State of Virginia, C-ity/County of 1/4911.0 d Q }TICK, To -wit:
a Notary Public in and for the jurisdiction aforesaid, certify that the person(s)
who s( ned to the foregoing instrument and who is (are) known to me, person a ally appeared before me
st
and has acknowledged the same before me in the jurisdiction aforesaid this ),1 day of() p!ll_Q 200 o.
My Commission Expires: I 3 1 0
0
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9
PIN 34 —A -2
GEORGE M. SEMPELES
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Attachment: #10.
Appellant, Arogas, Inc. is the developer of the proposed site plan dated 04 -13 -06
and is an aggrieved party that has invested substantial time and money to develop this site
in accordance with the existing B -2 zoning.
The stated decision on appeal includes but is not limited to the following
assert ions:
1) Our department is unable to process this application due to a discrepancy
between the proposed use of this property and the property's current zoing
designation and associated proffers.
2) that the proposed use is a prohibited use on this property."
Date of decision: April 19, 2000
Reasons that appellant disagrees with the stated decision include but are not
limited to the following:
Article X 165.82 B. of the Zoning Code of the County of Frederick
specifically recognizes SIC 55. S.I.C. 5541 is therefore a permitted use in
B -2. The subject site was zoned on 04/27/04 for this use. S.I.C. 5541
allows the sale of all types of motor fuel to all types of vehicles.
S.I.C. 5541 also specifically allows "truck stop" as a permitted use.
The application is not inconsistent with the B2 zoning or proffers
The dimensions of fuel islands, parking spaces, and commercial entrances
are irrelevant to the use.
The similarity of site layout to rezoning #07 -05 is irrelevant to the use.
Frederick County Zoning Code does not define "over- the -road truck
carriers," (Frederick Code does define tractor trailer truck, tractor truck,
tractor truck trailer, and truck.)
The decision is arbitrary and capricious.
There are many types of large vehicles that will access the proposed site.
The referenced proffer "Any use involving the retail or wholesale sale
of diesel fuel for over the -road truck carriers shall not be conducted or
performed on this site either in the commercial or industrial zones." is:
void for vagueness
unconstitutionally interferes with interstate commerce
arbitrary and capricious
procedurally defective
June 13, 2006
Mr. Robert T. Mitchell, Esquire
9 East Boscawen Street
Winchester, VA 22601
RE: Whitehall Commerce Center (Arogas)
Dear Mr. Mitchell:
This letter is a reply to the letter that Mr. Stivers wrote to you dated June 1, 2006, in which he
referenced the different types of diesel fuel that we discussed at a meeting held on May 25, 2006. All
diesel fuel (tax -paid) can be sold to private vehicles and be used by over -the -road trucks; there are no
different types of diesel fuel sold for over the -road truck carriers. This is a moot point, as the proffers
approved with this rezoning clearly do not allow fuel sales to over the -road truck carriers. Staff
would point out that the proffers do not allow truck traffic to use Business Boulevard from Route 11,
where the proposed Agrogas Facility is to be located.
If you have any questions, please call me at (540) 665 -5651.
Sincerely,
Mark R. Cheran
Zoning Administrator
MRC /bud
Enclosure
Department of Planning and Development
540/665 -5651
FAX: 540/665-6395
107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000
CK
Jun. 5. 20061.1 1 28AM 15407226169
ADMITTED TO THE RAR OF VIRGINIA
ANO TO THE BAR OF PENNSYLVANIA
June 1, 2006
Robert T. Mitchell, Esquire
9 East Boscawen Street
Winchester, VA 22601
By Facsimile: 540- 662 -4304
MES /aer
Cc: T. Pat Manning
MART( E STIVERS ESQ
MARK E. STIVERS
ATTORNEY AT LAW
P.O. BOX 1737
WINCHESTER, VIRGINIA 22604
TELEPHONE 540- 722 -6168
FACSIMILE 540-722-6169
Re: T. Fat Manning, Whitehall Commerce Center
Dear Bob:
1160 JORDAN SPRINGS ROAD
STEPHENSON, VIRGINIA 22656
This follows my phone call and message on May 31, 2006. During our meeting
on Thursday, May 25, 2006, with Eric Lawrence and Mark Cheran, an assertion was
made by Mark that there are different types of diesel fuels and that based on color and
taxation, "commercial" vehicle diesel could be differentiated from all other diesel use
vehicles. Moreover, that commercial diesel fuel is specifically dyed and taxed as such.
After investigating this matter I have determined that Mark is clearly ill- informed.
Contrary to his assertion, dyed diesel fuel is sold only for "off- road" use and as a
consequence is not subject to highway taxes. In every other instance diesel fuel that is
sold, is sold irrespective of vehicle type and "on road" usage.
I believe that as a result of this information, it is necessary that we revisit this issue
promptly and respectfully request a meeting to do so at your earliest convenience. I am
interested in your thoughts on this matter, and look forward to hearing from you as soon
as possible.
Sincerely,
Mark E. Stivers
No.9730 P. 2
PAGL, 02/02
04/28/2006 16:37
ADMITTED TO THE BAR OF VIRGINIA 1160 JORDAN SPRINGS ROAD
AND TO THE BAR OF PENNSYLVANIA STEPHENSON, VIRGINIA 22056
April 28, 2006
Mark R. Cheran, Zoning Administrator
Department of Planning and Development
107 North Kent Street, Suite 202
Winchester, Virginia 22601
Facsimile 665 -6395
Dear Mark:
15407226169
0
Re: Whitehall Commerce Center
MARK E. STIVERS
ATTORNEY AT LAW
POST OFFICE BOX 1737
WINCHESTER, VIRGINIA 22604
Telephone 540- 722 -6189
Facsimile 540 722 -6169
This is a follow -up to our discussion last week about the above referenced matter.
As I expressed at the time, my client is simply interested in determining what is necessary to
receive site plan approval, specifically what modifications you deem necessary. While I believe
that a face to face meeting would be most productive, after careful review of your letter dated
April 19, 2006, I posit the following revisions to the site plan in response thereto for your
consideration and in an effort to reach a prompt and agreeable resolution:
o reductions in the entrances to 36'
o elimination of oversize parking
o reductions in concrete surface areas near diesel islands
o modification of diesel island designs
I respectfully request your prompt consideration of this matter, and am happy to meet
with you at your office to discuss the same. I would like to explore a possible resolution to
eliminate the necessity of a BZA hearing or litigation. Please let me know your thoughts on this
matter. Thank you.
MES:dl
cc: Mr. Manning
Sincerely,
MARK E STIVERS ESQ
Mark E Slivers
PAGE__01 /01—�
rr�
I
y.t
APO 2 8 2006
-1
VIA FAX 722 -6169 and U.S. MAIL
Mark E. Stivers, Esquire
P. O. Box 1737
Winchester, VA 22604
HALL, MONAHAN, ENGLE, MAHAN MITCHELL
A PARTNERSHIP OF PROFESSIONAL CORPORATIONS
WILBUR C. HALL (1892 -1972)
THOMAS V. MONAHAN (1924 -1999) 7 S 307 EAST MARKET STREET 9 EAST BOSOAWEN STREET
SAMUEL D. ENGLE LEESBURG, VIRGINIA WINCHESTER, VIRGINIA
O. LELAND MAHAN TELEPHONE 703-777-1050 TELEPHONE SAO-8E2-3200
ROBERT T. MITCHELL, JR. FAx 540552 -4304
.JAMES A. KLENKAR E MAIL lawyers@haIImonahan.com
STEVEN F. JACKSON May 17, 2006
DENNIS J. MCLOUGHLIN, JR.
ATTORNEYS AT LAW
Re: Arogas, Inc. Site Plan Whitehall Commerce Center
Dear Mark:
This will confirm our discussions concerning the above matter.
i MAY 1 8 2006
PLR.
IT
PLEASE' REPLY TO:
P. 0. Box 848
WINCHESTER, VIRGINIA 22604-0848
Pursuant to your request for a conference to discuss what revisions may be
made in the site plan for it to be accepted for filing, we have agreed upon the
following:
1. Arogas will withdraw its pending appeal to the BZA. The County
agrees that if Arogas does not submit an amended site plan after the conference,
Arogas may file a written request, on or before June 16, 2006, to have the BZA
appeal placed back on the BZA docket, with the payment ofno additional fee, and the
appeal will be deemed timely filed. Otherwise, the appeal shall be deemed to be
peinianently withdrawn.
2. The County will agree to a conference with County staff and counsel
to discuss what revisions may be made in the site plan to permit it to be accepted for
filing.
aooS 8 r YAM
Mark E. Stivers, Esquire
May 17, 2006
Page 2
HALL, MONAHAN, ENGLE, MAHAN MITCHELL
3. If, following the conference, Arogas submits a revised site plan, the
previous BZA appeal will be deemed to have been permanently withdrawn.
This will confirm that you have withdrawn the BZA appeal, scheduled for
hearing on May 16, 2006. Further, this will confii in the conference with County staff
and counsel on Thursday, May 25, 2006, at 4:00 p.m. in the Planning and
Development offices.
I would appreciate it if you would provide me with short written confirmation
that the foregoing agreements and arrangements are correct.
Looking forward to hearing from you, I am
RTM /ks
CC: Mark R. Cheran, Zoning Administrator
Eric R. Lawrence, Director of Planning
Very truly yours,
Robert T. Mitchell, Jr.
MAGISTERIAL DISTRICT: Stonewall
APPEAL APPLICATION #08 -06
AROGAS, INC.
Staff Report for the Board of Zoning Appeals
Prepared: May 2, 2005
Staff Contact: Mark R. Cheran, Zoning Administrator
This report is prepared by the Frederick County Planning Staff to provide information to the
Board of Zoning Appeals to assist them in making a decision on this request. It may also be
useful to others interested in this Zoning matter.
BOARD OF ZONING APPEALS HEARING DATE:
May 16, 2006 Pending
LOCATION: The property is located at the intersection of Rest Church Road (Route 669) and
Martinsburg Pike (Route 1 1 North).
PROPERTY ID NUMBER(S): 34 -A -4
PROPERTY ZONING USE: Zone: B2 (General Business) District
Land Use: Vacant
ADJOINING PROPERTY ZONING USE:
North: MI (Light Industrial) District Land Use: Vacant
East: Ml (Light industrial) District Land Use: Vacant
South: B2 (General Business) District Land Use: Vacant
West: B2 (General Business) District Land Use: Commercial
APPEAL: To appeal the decision of the Zoning Administrator pertaining to the proffered uses on
this property.
REASON FOR APPEAL: Applicant is appealing the decision of the Zoning Administrator
regarding the proffered uses on this property.
Appeal Application #08 -06, Arogas, Inc.
May 2, 2005
Page 2
STAFF COMMENTS: A site development plan was received by the Frederick County Planning
Department on April 13, 2006. Staff was unable to process the site plan due to a discrepancy
between the proposed use of the property and the proffers associated with the property. The project
site lay -out of this property would indicate that the use of this property would be over the -road truck
fueling. This proposed use is not in conformance with the assigned proffers for this property. Staff
returned the application fee and site plan to the applicant's engineer.
The applicant is appealing the decision of the Frederick County Zoning Administrator regarding
proffers assigned to Rezoning #02 -04, which was approved by The Frederick County Board of
Supervisors on April 27, 2004. This land use action rezoned the property from RA (Rural Areas) to
B -2 (Business General) Zoning District and M -1 (Industrial Light) Zoning District. The Frederick
County Zoning Ordinance, Section 165 -13 (E) states: proffers assigned with any rezoning shall be
enforced by the Zoning Administrator.
It is important to note that proffers are conditions that a property owner offers to be placed on the
owner's property when the owner asks the County to rezone the property. When a rezoning is
approved with proffers, the proffers provide restrictions on the property beyond the regulations in the
zoning district in which the property is located. Therefore, in this case, although the property is
located in the B -2 zoning district, and although the provisions of the B -2 zoning district permit truck
stops and the sale of diesel fuel for over the -road carriers, the approved proffers on the property have
removed those uses as permitted uses on this property.
The applicant is appealing the decision of the Zoning Administrator in the enforcement of proffers of
this rezoning. These include the following:
1. The Frederick County Zoning Ordinance allows Standard Industry Code (SIC) 55 in its B -2
Zoning District. A subtitle of SIC 55 is SIC 5541which allows motor fuel to all types of
vehicles and truck stops.
Staff Response: Proffers for Rezoning #02 -04 do not allow the retail or wholesale of diesel
fuel for over the -road truck carriers. The use of SIC 5541 is a moot point per the proffers
assigned to this rezoning.
2. The Frederick County Code does not define "over -the -road truck carriers."
Staff Response: The Frederick County Zoning Ordinance, Section 165 -156, defines tractor
trailer truck for hauling freight. A tractor- trailer by this definition is used for any over -the -road
truck for hauling and has the same meaning. This definition is further defined in the Merriam
Webster Dictionary.
Appeal Application #08 -06, Arogas, Inc.
May 2, 2005
Page 3
3. The proffer "Any use involving the retail or wholesale sale of diesel fuel for over the -road
truck carriers shall not be conducted or performed on this site or the commercial or industrial
zones. -is:
a. Void for vagueness
b. Unconstitutionally interferes with interstate commerce
c. Arbitrary and capricious
d. Procedurally defective
Staff Response: The proffers clearly state that diesel fuel retail or wholesale for over -the-
road truck carriers shall not be allowed, and there is no vagueness in the way the proffer is
enforced and referenced. Interstate commerce has no bearing on the decision of the Zoning
Administrator and is not unconstitutional due to the assigned proffers on this property. The
applicant should have read and understood the proffers prior to submitting a site plan for
review. Furthermore, the sale of diesel fuel retail or wholesale to be used by over the -road
trucks is taxed only by those carriers that ply the roadways with freight.
The decision of the Zoning Administrator was not arbitrary or capricious in the enforcement of
the proffers and the procedure on returning the site plan. The site plan could not be reviewed
by the staff due to the site lay -out. The site plan clearly shows pavement details for heavy truck
traffic use, and clearly shows fuel islands and parking spaces to accommodate over the -road
trucks. This site plan, if approved by staff, would be a violation of the proffers assigned
through the approved rezoning.
The decision of the Zoning Administrator with regards to the enforcement and interpretation of the
proffers assigned with Rezoning #02 -04 is correct and not arbitrary and capricious as the applicant
contends. The applicant should have read and understood the proffers before investing the time and
money to develop this property. Staff was in no position to review and approve the site plan as
presented and, therefore, returned the site application to the applicant.
The only issue this Board must address to affirm or overrule the Zoning Administrator's decision in
not reviewing the applicant's site plan pertains to the proffers assigned to this property. Any changes
to these proffer uses are beyond the scope of the Board of Zoning Appeals. The Frederick County
Board of Supervisors is the only body that can approve any changes to the uses or proffers assigned
to this property.
STAFF CONCLUSIONS FOR THE MAY 16, 2006 MEETING: Staff is requesting to affirm the
decision of the Zoning Administrator in the administration of the Frederick County Zoning
Ordinance regarding the proffered uses on this property and was correct in not reviewing the
applicant's site plan.
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