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HomeMy WebLinkAbout13-96 Hogue Creek Country Market - Gainesboro - Backfile�Cftr�nCP S(fE r lah ors-Rrl; Rewired .6te Plait appfvvQ-d A-,C- 9? CUP TRACKING SHEET To be completed by Frederick Co. Staff only.) CUP ># _ 0 l 3- g 6 Owner/Applicant (� �� fi� r - C e� L , C Application Date 9 - / % -'?C Fee Paid yes initials: /c Sign Deposit yes Sign return date: Submittal Cut -Off Date to -11 ` q 6 P/C Mtg. date: 11' 6' q BOS Mtg. date: AGENCY REVIEW COMMENTS ! VDOT_ Airport Authority Inspections N,a City of Winchester Fire Marshal 4a, Co Sanitation Authority Health Dept. VA Wafe PLANNING COMMISSION RECOMMENDATIONS OF �/` 6- q 6 (date) APPROVAL (WITH CONDITIONS)y yes no 1, o aDENIAL Signed cretary Date —it t ` ` lb/ - BOARD OF SUPERVISORS PUBLIC HEARING ACTION (date)_ r APPROVAL Signe L4._- un dm. T—� a DENIAL Date�- r■qqp� 0 j a Ae r4v�yej diect, Mr. e-ju>orcli�e fie -621ephonect, Q%bout -Mis Lo"iAer Come - or rvrll{- a 1pro%lem to Cs,� cv; �n dub/�c heCcrinJr. leer. -evsh 4-or» ,:�, Arlol& , CASH RECEIPT Date r' 19 0,, ®G 5 0 A. 3 Received From Address Dollars $ For t, ACCOUNT• A. Q AMT. OF ACCOUNT CASH - AMT. PAID CHECK _ By BALANCE DUE MONEY ORDER FILE COPY COUNTY of FREDERICK Department of Planning and Development S401665-5651 FAX: S40/6784R2 December 12, 1996 Painter -Lewis, P.L.C. 302 S.,Braddock Street Suite 200 Winchester, VA 22601 RE: CUP #013-% OF PAINTER-LEWIS, P.L.C. FOR HOGUE CREEK COUNTRY MARKET; PIN #40-A-66D Dear Mr. Lewis: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting of December 11,1996. Since you had withdrawn the portion of your application that requested an additional dwelling, no action was taken on that portion of the request. The Board of Supervisors approved the portion of your Conditional Use Permit, #013-96, to allow expansion of the market with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity, 2. Any future expansion of this facility of change in use will require a new conditional bse permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution, and be able to catch blowing debris. 5. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6. The required screening to the, east of the store site may be a dense low screen that would capture any blowing'paer or debris that escapes from the market site. 7. The permitted hours of operation of the market will be from 5:00 AM to midnight. 107 North Kent Street - Winchester, Virginia 22601-5000 Hogue Creek Country Market CUP #013-96 Page 2 December 12, 1996 If you have any questions regarding this action, please feel free to call this office. W. Wayne Nfiller Zoning Administmor WVVw,cc cc: Commissioner of Revenue Doug Owens, Hogue Creek Country Market '7, Extra Services & Fees (check box, add /ee es appropriate) C3 ❑ Return Recelpt (naNcop» $ C:3 []Return Recelpt(electronic) $ Postmark C3 ❑ Certified Mail Restricted Delivery $ Here E3 ❑ Adult Signature Required $ ❑ Adult Signature Restricted Delivery $ Postage 0 Total Post Winchester 101 LLC r- Sent To 4780 Northwestern Pike � S(iee(and Winchester, Virginia 22603 5W'-Stete, Certified Mail service provides the following benefits: ■ A receipt (this portion of the Certified Mail label), for an electronic return receipt, see a retail ■ A unique identifier for your mailpiece. associate for assistance. To receive a duplicate ■ Electronic verification of delivery or attempted return receipt for no additional fee, present this delivery. USPS®-postmarked Certified Mail receipt to the ■ A record of delivery (including the recipient's retail associate. signature) that is retained by the Postal Service- Restricted delivery service, which provides for a specified period. delivery to the addressee specified by name, or Important Reminders. to the addressee's authorized agent. ■ You may purchase Certified Mail service with Adult signature service, which requires the signee to be at least 21 years of age (not First -Class Mail®, First -Class Package Service®, available at retail). or Priority Mail® service. Adult signature restricted delivery service, which ■ Certified Mail service is not available for requires the signee to be at least 21 years of age International mail. and provides delivery to the addressee specified ■ Insurance coverage is notavailable for purchase by name, or to the addressee's authorized agent with Certified Mail service. However, the purchase (not available at retail). of Certified Mail service does not change the ■ To ensure that your Certified Mail receipt is insurance coverage automatically included with certain Priority Mail items. accepted as legal proof of mailing, it should bear a USPS postmark If you would like a postmark on ■ For an additional fee, and with a proper this Certified Mail receipt, please present your endorsement on the mailpiece, you may request Certified Mail item at a Post Office- for the following services: postmarking. If you don't need a postmark on this - Return receipt service, which provides a record Certified Mail receipt, detach the barcoded portion of delivery (including the recipient's signature), of this label, affix it to the mailpiece, apply You can request a hardcopy return receipt or an appropriate postage, and deposit the mailpiece. electronic version. For a hardcopy return receipt, complete PS Form 3811, Domestic Return Receipt; attach PS Form 3811 to your mailpiece; IMPORTARr Save this receipt for your records. PS Fora, 3800, April 2o16 (Reverse) PSN 7530-02-000.9047 COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 CERTIFIED MAIL, April 2, 2018 Winchester 101 LLC 4780 Northwestern Pike Winchester, Virginia 22603 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) To whom it may concern: This letter is to inform you, that this office has received complaints of the country store on the above -referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit (CUP) #13-96, by Frederick County on December 11,1996. The Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight. The use of the store operating after midnight is a violation of the conditions placed on the CUP #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. Conditional Use Permit #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/kgs 107 North Kent Street, Suite 202 o Winchester, Virginia 22601-5000 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC 9505 Oakenshaw Drive Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) To whom it may concern: This letter is to inform you, that this office has received complaints of the country store on the above - referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit # 13-96 (CUP #13-96), by Frederick County on December 11,1996. Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight The use of the store opertioning after midnight is a violation of the conditions placed on Conditional Use Permit #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. CUP #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location' of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/dlw cc: ❑ Return Receipt (hardcopy) $ ❑ Return Receipt (electronic) $ Postmark ❑ Certified Mall Restricted Delivery $ Here ❑ Adult Signature Required $ ❑ Adult Signature Restricted Delivery $ 'ostage bta( Pas Winchester 101 LLC ien(To Attn: Timothy M. Purnell 9214 Center Street, Ste. 101 Pfiee� en Manassas, Virginia 20110 :iN Stat Certified Mail service provides the following benefits: ■ A receipt (this portion of the Certified Mail label), for an electronic return receipt, see a retail ■ A unique identifier for your mailpiece, associate for assistance. To receive a duplicate ■ Electronic verification of delivery or attempted return receipt for no additional fee, present this delivery. USPSO-postmarked Certified Mail receipt to the ■ A record of delivery (including the recipient's retail associate. signature) that is retained by the Postal Service- Restricted delivery service, which provides for a specified period. delivery to the addressee specified by name, or to the addressee's authorized agent. Important Reminders: Adult signature service, which requires the ■ You may purchase Certified Mail service with signee to be at least 21 years of age (not First -Class Mail®, First -Class Package Service®, available at retail). or Priority Mail® service. Adult signature restricted delivery service, which ■ Certified Mail service is notavailable for requires the signee to be at least 21 years of age international mail. and provides delivery to the addressee specified ■ Insurance coverage is notavailable for purchase with Certified Mail service. However, the purchase of Certified Mail service does not change the insurance coverage automatically included with certain Priority Mail items. is For an additional fee, and with a proper endorsement on the mailpiece, you may request the following services: - Return receipt service, which provides a record of delivery (including the recipient's signature). You can request a hardcopy return receipt or an electronic version. For a hardcopy return receipt, complete PS Form 3811, Domestic Return Receipt; attach PS Form 3811 to your mailpiece; by name, or to the addressee's authorized agent (not available at retail). ■ To ensure that your Certified Mail receipt is accepted as legal proof of mailing, it should bear a USPS postmark If you would like a postmark on this Certified Mail receipt, please present your Certified Mail item at a Post Office' for postmarking. If you don't need a postmark on this Certified Mail receipt, detach the barcoded portion of this label, affix it to the mailpiece, apply appropriate postage, and deposit the mailpiece. IMPORTANT. Save this receipt for your records. Ps Form 3800, Apol 2015 (Reverse) PSN 7530-02-000.9047 COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC Attn: Timothy M. Purnell 9214 Center Street, Ste. 101 Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) Dear Mr. Purnell: This letter is to inform you, that this office has received complaints of the country store on the above -referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit (CUP) # 13-96, by Frederick County on December 11,1996. The Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight. The use of the store operating after midnight is a violation of the conditions placed on CUP #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. Conditional Use Permit #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/kgs 107 North Kent Street, Suite 202 9 Winchester, Virginia 22601-5000 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC Attn: Timothy M. Purnell 9214 Center Street, Ste. 101 Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) Dear Mr. Purnell: This letter is to inform you, that this office has received complaints of the country store on the above - referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit # 13-96 (CUP #13-96), by Frederick County on December 11,1996. Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight The use of the store opertioning after midnight is a violation of the conditions placed on Conditional Use Permit #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. CUP #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/dlw cc: =X ra -Services & Fees (check box, add fee as aPPrOP'sle) [:] Retum Recelpt (hardcOPY) $ F1 Return Recelpt (electronic) $ El Certified Mall Restricted Delivery $ [:]Adult Signature Required $ F1 Adult Signature Restricted Delivery $ Postage Postmark Here Winchester 101 LLC 9505 Oakenshaw Drive Manassas, Virginia 20110 Certified Mail service provides the following benefits: ■ A receipt (this portion of the Certified Mail label). for an electronic return receipt, see a retail ■ A unique identifier for your mailpiece. associate for assistance. To receive a duplicate ■ Electronic verification of delivery or attempted return receipt for no additional fee, present this delivery. USPS®-postmarked Certified Mail receipt to the • A record of delivery (including the recipient's retail associate. signature) that is retained by the Postal Service" - Restricted delivery service, which provides for a specified period. delivery to the addressee specified by name, or to the addressee's authorized agent. Important Reminders: ■ You may purchase Certified Mail service with First -Class Mails, First -Class Package Service®, or Priority Mail® service. ■ Certified Mail service is notavailable for International mail. ■ Insurance coverage is notavailable for purchase with Certified Mail service. However, the purchase of Certified Mail service does not change the insurance coverage automatically included with certain Priority Mail items. ■ For an additional fee, and with a proper endorsement on the mallpiece, you may request the following services: - Return receipt service, which provides a record of delivery (including the recipient's signature). You can request a hardcopy return receipt or an electronic version. For a hardcopy return receipt, complete PS Form 3811, Domestic Return Receipt; attach PS Form 3811 to your mailpiece; Adult signature service, which requires the signee to be at least 21 years of age (not available at retail). Adult signature restricted delivery service, which requires the signee to be at least 21 years of age and provides delivery to the addressee specified by name, or to the addressee's authorized agent (not available at retail). ■ To ensure that your Certified Mail receipt is accepted as legal proof of mailing, it should bear a USPS postmark. If you would like a postmark on this Certified Mail receipt, please present your Certified Mail Item at a Post Office- for postmarking. it you don't need a postmark on this Certified Mail receipt, detach the barcoded portion of this label, affix it to the mailpiece, apply appropriate postage, and deposit the mailpiece. IMPORTANT. Save this receipt for your records. Ps Forrn 3800, April 2015 (Reverse) PSN 7530-02-000-9047 COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC 9505 Oakenshaw Drive Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) To whom it may concern: This letter is to inform you, that this office has received complaints of the country store on the above -referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit (CUP) # 13-96, by Frederick County on December 11,1996. The Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight. The use of the store operating after midnight is a violation of the conditions placed on CUP #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. Conditional Use Permit #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/kgs 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC 4780 Northwestern Pike Winchester, Virginia 22603 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) To whom it may concern: This letter is to inform you, that this office has received complaints of the country store on the above - referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit # 13-96 (CUP #13-96), by Frederick County on December 11,1996. Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight The use of the store opertioning after midnight is a violation of the conditions placed on Conditional Use Permit #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. CUP #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/dlw cc: Edward and Robin Menefee 102 Camaruge Court Stephens City, VA 22655 March 16, 2018 Mr. Mark R. Cheran, Zoning Administrator Mr. David Burke, Zoning Inspector County of Frederick of Planning and Development 107 North Kent Street, Suite 202 Winchester, VA 22601 Re: (1) Conditional Use Permit (CUP) #013-96 and Site Plan #011-97 Property ID 40-A-66D, Zoning District: RA (Rural Areas) (2) Correspondence January 20, 2017 and March 26, 2017 Dear Mr. Cheran and Mr. Burke: We notified this office a year ago of violations by the owners operating the above referenced CUP and Site Plan. As the owners of the adjacent property we requested a response as to what would be done about the violations. It has been a year and we have not received any response. The owners have knowingly ignored the County's CUP provisions and the County has knowing allowed this to happen. Gas Mart continues to operate 24 hours a day, 7 days a week and has turned into a truck stop. These are two areas we voiced major concern when the CUP was originally approved and the hours were limited to ensure we did not have trucks all night long. We have been respectful and patient of the process. Due to personal circumstances we have been unable to continue to follow-up and trusted the County was doing their work. If we need to become the squeaky wheel, we will. Authorization to operate a CUP is a privilege of one owner to make money on their property, and often while the adjoining property value is diminished. The CUP had minimal attempts to protect our property value; at least the terms of the CUP and site plan and should be enforced. We request a written response within 14 days of receipt of this letter before we take the next step. Since y, /`�) CI Gt%uCj' -1--t 1&a, V1,174e, Edward and Robin Menefee Cc: J. Douglas McCarthy, Gainesboro Supervisor Mark E. Stivers VAR 2 6 2018 ROERICK CO�N -P L Atm,,. l! " i A -N 0 DF V, Alert to business entities regarding mailings from VIRGINIA COUNCIL FOR CORPORATIONS or U.S. BUSINESS SERVICES is available from the Bulletin Archiv( the Clerk's Office website. c Comtrionweaith of Virginia State Corporation Commission ji V, 03/3( LLCM3220 LLC DATA INQUIRY 10:2, LLC ID: 5478054 - 2 STATUS: 00 ACTIVE STATUS DATE: LLC NAME: lWinchester 101, LLC —� DATE OF FILING: 11/04/2013 PERIOD OF DURATION: INDUSTRY CO] STATE OF FILING: VA VIRGINIA MERGER INDICATOR: CONVERSION/DOMESTICATION INDICATOR: P R I N C I P A L O F F I C E A D D R E S S STREET: 5011 PINEY BRANCH RD CITY: FAIRFAX STATE: VA ZIP: 22030-0000 R E G I S T E R E D A G E N T I N F O R M A T I O N R/A NAME: TIMOTHY M PURNELL STREET: 9214 CENTER ST STE 101 RTN MAI: CITY: MANASSAS STATE: VA ZIP: 20110-0000 R/A STATUS: 4 MEMBER OF VSB EFF DATE: 11/04/13 LOC: 308 MANASSAS C: YEAR FEES PENALTY INTEREST BALANCE 17 50.00 (Screen Id:/LLC_Data_lnquiry) Alert to business entities regarding mailings from VIRGINIA COUNCIL FOR CORPORATIONS or U.S. BUSINESS SERVICES is available from the Bulletin Archivf the Clerk's Office website. co Cotnmonwealth of Virginia � State Corporation Commission LLCM6150 LLC AGENT INQUIRY LLC ID: S478054 - 2 LLC STATUS: 00 ACTIVE LLC NAME: lWinchester 101, LLC CURRENT REGISTERED AGENT: NAME: TIMOTHY M PURNELL STREET: 9214 CENTER ST STE 101 CITY: MANASSAS STATE: VA ZIP: 20110-0000 STATUS: 4 MEMBER OF EFF DATE: 11/04/13 LOC: 308 MANASSAS CIT' OLD REGISTERED AGENT: NAME: STREET: CITY: STATE: ZIP: STATUS: EFF DATE LOC: (Screen Id:/LLC_Registered_Agent_lnquiry) 04 m aab.s� RETURN RECEIPT REQUESTED 0)44 RECEIPT REQUESTED U, PAIpSTAGE ST22655NS CITY, VA MAAMOUNT 7016 0750 0000 8334 9643 ,00 1 vosrec sev¢r: $ 6 ■ 7 O 1000 22601 R2304E106641-04 ; c ev.1 /D7 I/oy)Y, /6-nt At �J- , V(q 0?�60/ Gifford Hampshire From: Gifford Hampshire Sent: Thursday, July 19, 2018 2:48 PM To: 'mcheran@fcva.us' Subject: RE: Mark Attachments: SKMBT 55218071913410.pdf Mark Here is the limited power of attorney. Will you confirm receipt of request for a deferral? Tx. giff From: Gifford Hampshire Sent: Thursday, July 19, 20181:54 PM To: mcheran@fcva.us Subject: RE: Mark Hello Mark I left you a voicemail as well. My client would like to request a deferral to ensure that all site plan issues are resolved and to continue to work with neighbors. Is this email sufficient? I will follow up with the power of attorney. Tx. Giff Hampshire. From: Gifford Hampshire Sent:.Thursday, July 19, 20181:24 PM To:'mcheran@fcva.us' <mcheranCu)fcva.us> Subject: Mark Here is my email for sending me the Patel information. I Be\K BlankingshipKeithp° 4020 University Drive, Suite 300 Fairfax, Virginia 22030 T: 703.691.1235 F: 703.691.3913 September 10, 2018 Gifford R. Hampshire Email: ghampshire a Wayya.com Board of Supervisors, Frederick County Care of, Mark R. Cheran, Zoning Administrator, Mcherangfcva.us and FEDEX 107 North Kent Street Suite 202 Winchester, Va. 22601 RE: September 12, 2018 Hearing on Continuation or Revocation of CUP #13-96, Hogue Creek Country Market, Item U on September 12, 2018 Agenda Dear Mr. Chairman and Honorable Members: This fain represents Winchester 101, LLC (Winchester 101). Winchester 101 is the owner of property located at 4780 Northwestern Pike, PIN 40-A-66D, Gainesboro Magisterial District (the "Property"). The Property is subject to Conditional Use Permit # 13-96 (the "CUP"). This letter is to supplement my August 14, 2018 letter to the Planning Conunission (the "Planning Conunission Letter"). The Planning .Commission Letter is reproduced at pages 50-54 of letter of the third PDF of Agenda Package at Item U. It is also attached to this letter for the Board's convenience of reference. Parts of the Planning Commission Letter are also repeated below as appropriate. Winchester 101 has Continued to Address Neighbor Complaints Since the Planning Commission Hearing. Winchester 101 has continued to work with neighbors in addressing concerns since the planning Conunission hearing. In addition to the shielded canopy lights, no -parking enforcement, trash pick-up, and, screening discussed at the Planning Conunission hearing, Winchester 101 has since augmented the repaired wooded fence and evergreen plantings with a metal fence to the inside of the wood fence that will assist in catching debris. These improvements are over and above its redoubled efforts to adhere to the 5:00 a.m. to midnight operating hours. Winchester 101 has continued its adherence to a protocol that serves the last customers at approximately 11:45 p.m. so that canopy lights and store lights can be turned off promptly at midnight. The Board's Referral to the Planning Commission Does Not Meet Ordinance Requirements for Revocation 4020 University Drive, Suite 300, Fairfax, Virginia 22030 1 703.691.1235 TEL I 703.691.3913 rAx I WWW.BKLAWVA.COM B&K Blankingship KeitY C Board of County Supervisors, Frederick County September 10, 2018 Page 2 Winchester 10 repeats its position, asset forth in the Planning Commission Letter, that the Board of Supervisors' July 25, 2018 resolution initiating revocation is void because it is based only on a single alleged violation of Condition #7. The Code only allows the Board to initiate revocation proceedings based on: B. Repeated or continued violations of this chapter, including violations of the conditions placed on the permit. (emphasis added).' Zoning Ordinance § 165-103.08 (B). The failure of the Board of Supervisors to find that there were repeated or continuing zoning violations prior to passing its revocation ordinance renders this revocation proceeding void ab initio. Renkey v. County Board ofArlington County, 272 Va. 369, 375-76 (2006), (County's rezoning without complying with requirements of ordinance rendered action was arbitrary and capricious, and not fairly debatable, rendering rezoning void and of no effect). Revocation Is Contrary to Usual Practice At the July 25 Board hearing, Mr. Cheran stated that the usual practice is to work with a landowner who is attempting to address neighbor complaints rather than to initiate revocation proceedings. Mr. Cheran also stated that out of the 5 revocation cases listed on page 3 of the Menefee letter attached to the staff report, the Board only revoked a CUP in one of those cases and that, in this single case (Winchester Motor Services), the landowner did not seek an amendment to the CUP. Thus, the usual practice is to work with landowners to abate the violation through compliance or amendment of the permit while the unusual and. rare case is to revoke the permit. Indeed, based on Mr. Cheran's testimony at the July 25 hearing, it appears unprecedented for the Board to revoke a permit where the landowner is working promptly and good faith to resolve complaints and who sought an amendment of the CUP to legalize the activity that is the basis for the violation. Winchester 101's Resolution of Complaints Militates in Favor of the Usual Practice of Abatement Rather than the Extraordinary Practice of Revocation This case calls for the customary manner of resolving complaints though abatement rather than the extraordinary path that the Board initiated in this case. Winchester 101 has acted promptly in response to the complaints when it learned of them. Winchester 101 has also redoubled its efforts to abate instances exceeding allowable hours. Therefore, the Board should follow its usual practice of not revoking a permit where the property owner has worked to address complaints to abate the violation of Condition #7 relating to hours. ' The Code also allows revocation to be based on discontinuance or fraud in applying for the permit but there is not contention either basis exists here. 4816-3849-4817, v. 2 B&K BlankingshipKeitYc Board of County Supervisors, Frederick County September 10, 2018 Page 3 The Planning Commission Recommended Against Revocation at this Time with Monitoring for 60 Days The proposed Ordinance set forth at the last page of Item U accurately reflects the Planning Commission's unanimous recommendation against revocation at this time with monitoring by Staff for 60 days. Attention is required to the heading of the proposed ordinance in stating "Recommended Approval" for the Planning Commission because such would appear to be at odds with the Planning Conunission recoimnendation against revocation. It must also be noted that the language proposed for the Board's ordinance is also at odds with the Planning Commission's recommendation against revocation at this time. It appears that the word "not" may have been inadvertently omitted between "is" and "revoked in the proposed language of the ordinance. Regardless, Winchester 101 respectfully requests that the Board adopt an ordinance that CUP #13- 96 not be revoked, consistent with the unanimous recommendation of the Planning Commission. Thank you to each member for his or her kind attention to this letter. I look forward to seeing you at the September 12 public hearing. Sincerely, �r Gifford R. Hampshire GRH/KB Enclosures, as stated cc: Winchester 101, LLC, pprakash890(a,aol.com Mark R. Cheran, Zoning Administrator, mcheran(cr),fcva.us Roderick B. Williams, County Attorney, rwillia(cr�fcva.us 4816-3849-4817, v. 2 B 8& Blankingship ne Keith 4020 University Drive, Suite 300 Fairfax, Virginia 22030 T: 703.691.1235 F: 703.691.3913 August 14, 2018 Gifford R. Hampshire L•mail: ahampshirc.�ibklaeva.cont Frederick County Planning Commission Care of, Mark R. Cheran, Zoning Administrator, Mcheran@feva.us and FEDEX 107 North Kent Street Suite 202 Winchester, Va. 22601 RE: August 15, 2018 Hearing on Continuation or Revocation of CUP # 13-98, Hogue Creek Country Market Dear Mr. Chairman and Honorable Members of the Plaiming Commission: This firm represents Winchester 101, LLC (Winchester 101). Winchester 101 is the owner of property located at 4780 Northwestern Pike, PIN 40-A-66D, Gainesboro Magisterial District (the "Property"). The Property is subject to Conditional Use Permit # 13-96 (the "CUP"). The Board approved the CUP on December 1, 1996. The CUP allowed for the expansion of a country market that had already existed on the Property for some years. Nature of Violation Winchester 101 has only been cited once for violating the terms of the CUP. See minutes of June 6, 2018 Planning Commission meeting. The violation solely concerned the alleged operation of the country market after midnight in violation of Condition #7 of CUP. The single citation was dated April 2, 2018 and is attached for your reference (the '`Citation"). Winchester 101. Provides a Valuable Sei-vice to the Community Winchester provides a valuable service to citizens of Frederick County. I cite several of the comments from July 27, 2018 T�Vinehester Star entitled, "Frederick Could Revoke Permit for Convenience Store": 0 "I just moved not too far from the gas station and enjoy the easy access for fueling up my vehicles, etc. (remainder ofcommit omitted] cpassman, July 27, 2018 11:48 0 "... that store has like 5 neighbors. The store is doing way more good for Frederick County taxpayers than it is to armoy those few neighbors. (remainder of comment omitted] Steve Cunningham, July 27, 2018, 11:46 a.m. 4020 University Drive, Suite 300, Fairfax, Virginia 22030 1 703.691.1235 TEL 1703.691.3913 PAX I www.EKLAIVVA.CO&I BST BlankingshipKeitlfc Frederick County Planning Commission August 14, 2018 Page 2 ❑ "I live up off 259 and if I need something in the middle of the night, [I] have to go all the way to Winchester. [remainder of comment omitted] Hawkl, July 27, 2018, 10:26 a.m. ❑ "I live up off 259 and this store not being open 24 lu•s causes me to have to run all the way into Winchester which is a PITA. [remainder of comment omitted] Hawk1, July 27, 201, 8:26 a.m. ❑ "Vikki Prea; the business' general manager, countered that operating 24 hours a day would be a convenience for customers and improve safety on a dark stretch of road. A lot of truth in that quote". Coachmilburn, July 27, 2018, 9:53 a.m. Winchester 101Is Response to the Citation Winchester 101, thus, responded to the Citation by applying to amend the CUP to allow continued valuable service to the citizens and to improve safety on a dark stretch of road. Amendment of a conditional use permit is a valid and time-honored way of resolving zoning violation. Yet, the same Tnchester Star reported comments from one Board member at the July 25 hearing that application to amend the CUP was unfair: I don't like the idea that, I've been caught violating the rules. " Well I don't want to follow the rules, allow me to change the rules." McCarthy said. That's not fair to the neighbors. That's not fair to the residents of the county. And I don't like that. The Zoning Ordinance, however, gives landowners the absolute right to seek amendments to the conditional sue permits through the process set forth therein. That process is, indeed, eminently fair to the residents of the County precisely because advertised public hearings are required before the Planning Commission and the Board of Supervisors on the merits of the application. It is well - established in Virginia law, moreover, that the Board of Supervisors has great discretion to grant or deny an amendment to a CUP based on land use considerations. Board ofSupervisors of Fair fax County V. Southland Corporation, 224 Va. 514, 522 (1982). Thus, application to amend a CUP to legalize a needed public service is fair to neighbors because the concerns of the neighbors will be addressed at advertised public hearings before the Planning Connnission and Board of Supervisors and because of the great discretion the Board possesses to deny an application based on land use impact. 4816-3849-4817, v. 2. BSK Blankingship KeitY Frederick County Planning Commission August 14, 2018 Page 3 The Board of Supervisors Rejects Winchester 101's Request foi- Deferral of Public Hearing to Address Complaints Apart from the Citation and Summarily Denies the Application without Winchester 101 or its Attorney Present It is most perplexing, therefore, that the Board of Supervisors rejected the Winchester 101's attached July 19, 2018 request to defer the public hearing "to ensure that all site plan issues are resolved and to continue to work with neighbors". It is even more perplexing that the Board went on to deny the amendment application when neither the applicant nor its attorney had appeared because of the deferral request. It appears from the video of proceedings that the reason for the denial was not related to the land use impact of the proposed amendment to extend hours, but rather out of a desire to revoke (lie permit altogether. As stated by another resident in response to the Gf'inchester Star article: I'm all for following the rules, but I see nothing wrong with this business -owner asking to amend them either. If there is enough business to justify 24-hour opening, an (sic) there appcars to be with Shcetz and others in this industry -why is it so offensive that they are asking to amend the CUP? TTlhat would be offensive is ifthe Board really entertains revoking the current CUP altogether. This business serves many residents of Frederick County and the many ivorkers travelling to Frederick County from Guest flirginia" Scottshoemaker, July 27, 10:33 a.m. (emphasis added). It must be stressed again that the Citation is based solely on violation of Condition 117 relating to hours and that Winchester 101 has only "been cited once for violating hours of operation." See July 17 Staff Report forJuly 25 Board of Supervisors Meeting, page 5. In response to a question from a Board member at the July 25 hearing, Mr. Cheran stated that he is not aware of any other violations of the CUP, although lie has received plenty of complaints over the years. Based on continents at the July 25 hearing, it appears that these complaints include road noise on Route 50, including trucks using jake breaks, excessive canopy lighting and the property being used as truck stop. ' h1 the experience of the undersigned requests for deferral of public hearings on land use applications are routinely honored for the purpose of addressing concerns of neighbors. Doing so makes common sense because it allows complaints to be resolved prior to the public hearing. It is perplexing that the Board of Supervisors did not follow this common practice this instance because Winchester 101 was in the process of addressing neighbor concerns. 4816-3849-4817, v. 2 B8,7KBIan ffigshipKeitI?C Frederick County Planning Commission August 14, 2018 Page 4 The Board's Resolution Initiating Revocation Proceedings is Void Becatise it did not Comply with the Zoning Ordinance The Board of Supervisors' July 25, 2018 resolution initiating revocation of the CUP is void because it is based only on a single alleged violation of Condition 117. The Code only allows the Board to initiate revocation proceedings based on: B. Repeated or conflnued violations of this chapter, including violations of the conditions placed on the permit. (emphasis added). Zoning Ordinance ti 165-103.08 (B). The failure of the Board of -Supervisors to find that there were repeated or continuing zoning violations prior to passing its revocation ordinance renders this revocation proceeding void ab initio. Renkey v. County Board of'Arfington County, 272 Va. 369, 375-76 (2006), (County's rezoning without complying with requirements of ordinance rendered action was arbitrary and capricious, and not fairly debatable, rendering rezoning void and of no effect). Therefore, the Planning Commission should recommend to the Board of Supervisors that these revocation proceedings should be dismissed as void because the Board failed to comply with the requirements of its own ordinance. Winchester 101 has Nevertheless Continued to Address Complaints Notwithstanding the above, Winchester 101 has continued to address neighbor concerns consistent with its July 19, 2018 request for deferral.'- As shown by the attached photographs, Winchester 101 has placed shields on canopy lights, repaired the fence, installed landscaping, erected and enforced no -parking signs to prevent unauthorized parking of trucks and hired additional service to keep trash picked up and from being carried to neighboring properties. None of these issue are part of the Citation but Winchester 101 has continued to address them anyway in the spirit of a being a good neighbor.3 Winchester 101 has also redoubled its efforts to ensure closing at midnight, including the establishment of a closing protocol that starts at approximately 11:45 p.m. L At the July 25 Board of Supervisors hearing, Mr. Cheran stated to the Board the Winchester commenced to address the neighbor concerns promptly upon learning of them. The rG1ected deferral request to amend the CUP to extend hours was to continue those efforts. 3 Winchester 101 is not empowered to address other complaints voiced at the July 25, 2018 hearing that led to the revocation resolution, such as noise on Route 50 including from jake breaks and increased traffic on Route 50 that has come with increase in population over the years. Winchester 101 has no control over Route 50 road noise. 4816-3849-4817, v, 2 Be,&BlankingshipKeitY' Frederick County Planning Commission August 14, 2018 Page 5 At the July 25 Board hearing, Mr. Cheran stated that the usual practice is to work with a landowner who is attempting to address neighbor complaints rather than to initiate revocation proceedings. Mr. Cheran also stated that out of the 5 revocation cases listed on page 3 of the Menefee letter attached to the staff report, the Board only revoked a CUP in one of those cases and that, in this single case (Winchester Motor Services), the landowner did not seek an amendment to the CUP. Thus, the usual practice is use work with landowners to abate the violation through compliance or amendment of the permit while the unusual and rare case is to revoke the permit. Indeed, based on Mr. Cheran's testimony at the July 25 hearing, it appears unprecedented for the Board to revoke a permit where the landowner is working promptly and good faith to resolve complaints and has sought an amendment of the CUP to legalize the activity that is the basis for the violation. Winchester 1011Is Prompt Resolution of Complaints Militates in Favor of the Usual Practice of Abatement Rather than the Extraordinary Practice of Revocation This case calls for the customary manner of resolving complaints through abatement rather than the extraordinary path that the Board initiated in this case. Winchester 101 has acted promptly the complaints apart the Citation when it learned of them. Winchester 101 has also redoubled its efforts to abate instances exceeding allowable hours. In addition, any revocation of the CUP would be void because the Board did not find repeated continuing violations of Condition #7 before voting to initiate this revocation proceeding. Therefore, Winchester 101 urges the Planning Commission to recommend that the CUP not be revoked and that the Board reconsider its ordinance summarily denying the request for amendment of the CUP without Winchester or its attorney present. Sincerely, Gifford R. IIampshire GRH/KB Enclosures, as stated cc: Winchester 101, LLC, pprakash890@aol.com Mark R. Cheran, Zoning Adminstrator, rncheran@fcva.us Roderick B. Williams, County Attorney, rwillia n,fcva.us 4816-3849-4817, v. 2 COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/665-6395 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC Attn: Timothy M. Purnell 9214 Center Street, Ste. 101 Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) Dear Mr. Purnell: This letter is to inform you, that this office has received complaints of the country store on the above -referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit (CUP) # 13-96, by Frederick County on December 11,1996. The Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight. The use of the store operating after midnight is a violation of the conditions placed on CUP #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. Conditional Use Permit 413-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/kgs 107 North Kent Street, Suite 202 o Winchester, Virginia 22601-5000 s�i OFHCIAL FUEL mr . j • S.�AL kr "�` II I 77 W .� � r GlF!,nv sv c v H v _. -:77 7.7 -� MOE A"m - "�- i 1 a i 11 7r hr a. fr pj l'�+��• r t ` t � i. � \r � it i r�y Y♦ � r'� y, .• r �� r 1 e ti �a. { � �V� � � ;,r _ ✓"� t 1 ,,i, l_ � �Y3+b fr�f ��� rl� r �4� yrh��•• I '��r`i �I.� r f 1; t �•'♦�"��T � 1 irk i'r����;r4as. t/ iJfj'r' % i �; tt#4Mtil }kk 'SY � �• ,! � i�r S'a. � 5+ �� i �,K J.!" w ,�;snJi�lr r �'- � 7y/ w 1 A ,�1 ,{{ � , } <d' �'� n� � f , � �'1 ) � e y'r •c t, Dgrlt 1 >,1 ,lq : �,'1�„� �' CL, I�St'��,r,, - a d��r� i, ; /' r'�• j 1 �,r:/. rA !,' � ,, 1.+ +� �..t� \� _ i.Y'. �i. ✓i'T:.�1�•!f .l �� t ���,j'n Y/ �.1 �TL.;.�M.�1. !'S'ft"'c'^r•. 41'l ),a�i.. l'.��e�i:V����i't.t'�Li?tit r r 4 ;1r .r� )•:l. r�,t..; . Ir Aye..: �f4 4 S{:.7. r, . ♦ w 4 � -} t 1 A 61 ii�. 6 r rK r .. •,�� \r +�-j'�1♦ (� �t-mil(. 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Hampshire Email: shunt shire ri l la. � a,ct�nr Frederick County Planning Commission Care of, Mark R. Cheran, Zoning Administrator, lbMcheran04feva.us and FEDEX 107 North Kent Street Suite 202 Winchester, Va. 22601 RE: August 15, 2018 Hearing on Continuation or Revocation of CUP #13-98, Hogue Creek Country Market Dear Mr. Chairman and Honorable Members of the Planning Commission: This firm represents Winchester 101, LLC (Winchester 101). Winchester 101 is the owner of property located at 4780 Northwestern Pike, PIN, 40-A-66D, Gainesboro Magisterial District (the "Property"). The Property is subject to Conditional Use Permit # 13-96 (the "CUP"). The Board approved the CUP on December 1, 1996. The CUP allowed for the expansion of a country market that had already existed on the Property for some years. Nature of Violation Winchester 101 has only been cited once for violating the terms of the CUP. See minutes of June 6, 2018 Planning Commission meeting. The violation solely concerned the alleged operation of the country market after midnight in violation of Condition #7 of CUP. The single citation was dated April 2, 2018 and is attached for your reference (the "Citation"). Winchester 101 Provides a Valuable Service to the Community Winchester provides a valuable service to citizens of Frederick County. Z cite several of the comments from July 27, 2018 Winchester Star entitled, "Frederick Could Revoke Permit for Convenience Store": "1 just moved not too far from the gas station and enjoy the easy access for fueling up my vehicles, etc. [remainder of commit omitted] epassmant, July 27, 201811:48 ❑ "... that store has like 5 neighbors. The store is doing way more good for Frederick County taxpayers than it is to annoy those few neighbors. [remainder of comment omitted] Steve Cunningham, July 27, 2018,11:46 a.m. 4020 University Drive, Suite 300, Fairfax, Virginia 22030 1 703.691.1235 TBL 1703.691.3913 FAX I WWIV.Bx1A\9vA.eoM u BIa.I1' pk Sill. f �. Keithp° Frederick County Planning Commission August 14, 2018 Page 2 0 "I live up off 259 and if I need something in the middle of the night, [I] have to go all the way to Winchester. [remainder of comment omitted] Hawk1, July 27, 2018, 10:26 a.m. ❑ "I live up off 259 and this store not being open 24 hrs causes me to have to run all the way into Winchester which is a PITA. [remainder of comment omitted] Hawk1, July 27, 201, 8:26 a.m. 0 "Vikki Prea, the business' general manager, countered that operating 24 hours a day would be a convenience' for customers and improve safety on a dark stretch of road. A lot of truth in that quote". Coachmilburn, July 27, 2018, 9:53 a.m. Winchester 101's Response to the Citation Winchester 101, thus, responded to the Citation by applying to amend the CUP to allow continued valuable service to the citizens and to improve safety on a dark stretch of road. Amendment of a conditional use permit is a valid and time-honored way of resolving zoning violation. Yet, the same Winchester Star reported continents from one Board member at the July 25 hearing that application to amend the CUP was unfair: I don't like the idea that, I've been caught violating the rules. " Well I don't want to follow the rules, allow me to change the rules." McCarthy said. That's not fair to the neighbors. That's not fair to the residents of the county. And I don't like that. The Zoning Ordinance, however, gives landowners the absolute right to seek amendments to the conditional sue permits through the process set forth therein. That process is, indeed, eminently fair to the residents of the County precisely because advertised public hearings are required before the Planning Commission and the Board of Supervisors on the merits of the application. It is well - established in Virginia law, moreover, that the Board of Supervisors has great discretion to grant or deny an amendment to a CUP based on land use considerations. Board of Supervisors of Fairfax County v. Southland Corporation, 224 Va. 514, 522 (1982). Thus, application to amend a CUP to legalize a needed public service is fair to neighbors because the concerns of the neighbors will be addressed at advertised public hearings before the Planning Commission and Board of Supervisors and because of the great discretion the Board possesses to deny an application based on land use impact. 4816-3849-4817, v. 2 'P hp BcOvKB1crt111ii1ws1')iP Keit Frederick County Planning Commission August 14, 2018 Page 3 The Board of Supervisors Rejects 'Winchester 101's Request for Deferral of Public Hearing to Address Complaints Apart from the Citation and Summarily Denies the Application without Winchester 101 or its Attorney Present It is most perplexing, therefore, that the Board of Supervisors rejected the Winchester 101 's attached July 19, 2018 request to defer the public hearing "to ensure that all site plan issues are resolved and to continue to work with neighbors". It is even more perplexing that the Board went on to deny the amendment application when neither the applicant nor its attorney had appeared because of the deferral request'. It appears from the video of proceedings that the reason for the denial was not related to the land use impact of the proposed amendment to extend hours, but rather out of a desire to revoke the permit altogether. As stated by another resident in response to the Winchester Star article: I'm all for following the rules, but I see nothing wrong with this business -owner asking to amend them either. If there is enough business to justify 24-hour opening, an (sic) there appears to be with Sheetz and others in this industry -why is it so offensive that they are asking to amend the CUP? YYliat would be offensive is if the Board really entertains revoking the current CUP altogether. This business serves many residents of Frederick County and the many workers travelling to Frederick County from West Virginia" Scottshoemaker, July 27, 10:33 a.m.. (emphasis added). It must be stressed again that the Citation is based solely on violation of Condition ##7 relating to hours and that Winchester 101 has only "been cited once for violating hours of operation." See July 17 Staff Report for July 25 Board of Supervisors Meeting, page 5. In response to a question from a Board member at the July 25 hearing, Mr. Cheran stated that he is not aware of any other violations of the CUP, although he has received plenty of complaints over the years. Based on comments at the July 25 hearing, it appears that these complaints include road noise on Route 50, including trucks using jake breaks, excessive canopy lighting and the property being used as truck stop. ' In the experience of the undersigned requests for deferral of public hearings on land use applications are routinely honored for the purpose of addressing concerns of neighbors. Doing so makes common sense because it allows complaints to be resolved prior to the public hearing. It is perplexing that the Board of Supervisors did not follow this common practice this instance because Winchester 101 was in the process of addressing neighbor concerns. 4816-38494817, V. 2 N"" .� BlankingsmpA p ' Keitho Frederick County Planning Commission August 14, 2018 Page 4 The Board's Resolution Initiating Revocation Proceedings is Void Because it did not Comply with the Zoning Ordinance The Board of Supervisors' July 25, 2018 resolution initiating revocation of the CUP is void because it is based only on a single alleged violation of Condition #7. The Code only allows the Board to initiate revocation proceedings based on: B. Repeated or continued violations of this chapter, including violations of the conditions placed on the permit. (emphasis added). Zoning Ordinance § 165-103.08 (B). The failure of the Board of Supervisors to find that there were repeated or continuing zoning violations prior to passing its revocation ordinance renders this revocation proceeding void ab initio. Renkey v. County .Hoard ofArlinglon County, 272 Va. 369, 375-76 (2006), (County's rezoning without complying with requirements of ordinance rendered action was arbitrary and capricious, and not fairly debatable, rendering rezoning void and of no effect). Therefore, the Planning Commissiozi should recominend to the Board of Supervisors that these revocation proceedings should be dismissed as void because the Board failed to comply with the requirements of its own ordinance. Winchester 101 has Nevertheless Continued to Address Complaints Notwithstanding the above, Winchester 101 has continued to address neighbor concerns consistent with its July 19, 2018 request for deferral.2 As shown by the attached photographs, Winchester 101 has placed shields on canopy lights, repaired the fence, installed landscaping, erected and enforced no -parking signs to prevent unauthorized parking of trucks and hired additional service to keep trash picked up and from being carried to neighboring properties. None of these issue are part of the Citation but Winchester 101 has continued to address them anyway in the spirit of a being a good neighbor.3 Winchester 101 has also redoubled its efforts to ensure closing at midnight, including the establishment of a closing protocol that starts at approximately 11:45 p.m. At the July 25 Board of Supervisors hearing, Mr. Cheran stated to the Board the Winchester commenced to address the neighbor concerns promptly upon learning of them. The rejected deferral request to amend the CUP to extend hours was to continue those efforts. 3 Winchester 101 is not empowered to address other complaints voiced at the July 25, 2018 hearing that led to the revocation resolution, such as noise on Route 50 including from jake breaks and increased traffic on Route 50 that has come with increase in population over the years. Winchester 101 has no control over Route 50 road noise. 4816-3849-4817, V. 2 B&KB1a,*,ngs1nPKeith"C Frederick County Plaru-ing Commission August 14, 2018 Page 5 At the July 25 Board hearing, Mr. Cheran stated that the usual practice is to work with a landowner who is attempting to address neighbor complaints rather than to initiate revocation proceedings. Mr. Cheran also stated that out of the 5 revocation cases listed on page 3 of the Menefee letter attached to the staff report, the Board only revoked a CUP in one of those cases and that, in this single case (Winchester Motor Services), the landowner did not seek an amendment to the CUP. Thus, the usual practice is use work with landowners to abate the violation through compliance or amendment of the permit while the unusual and rare case is to revoke the permit. Indeed, based on Mr. Cheran's testimony at the July 25 hearing, it appears unprecedented for the Board to revoke a permit where the landowner is working promptly and good faith to resolve complaints and has sought an amendment of the CUP to legalize the activity that is the basis for the violation. Winchester 101's Prompt Resolution of Complaints Militates in Favor of the Usual Practice of Abatement Rather than the Extraordinary Practice of Revocation This case calls for the customary manner of resolving complaints through abatement rather than the extraordinary path that the Board initiated in this case. Winchester 101 has acted promptly the complaints apart the Citation when it learned of them. Winchester 101 has also redoubled its efforts to abate instances exceeding allowable hours. In addition, any revocation of the CUP would be void because the Board did not find repeated continuing violations of Condition #7 before voting to initiate this revocation proceeding. Therefore, Winchester 101 urges the Planning Commission to recommend that the CUP not be revoked and that the Board reconsider its ordinance summarily denying the request for amendment of the CUP without Winchester or its attorney present. Sincerely, Gifford R. Hampshire Chi Enclosures, as stated cc: Winchester 101, LLC, pprakash890@aol.com Mark R. Cheran, Zoning Adminstrator, mcherannfcva.us Roderick B. Williams, County Attorney, rwilliaOfcva.us 4816-3849-4817, v. 2 COUNTY ofFREDERICK Dee arfniont of Plaaning and Duvelopmettt 540/ 665-5651 Fax: 540/ 665-6395 CERTIFIED MARL April 2, 2018 Winchester 101 LLC Attn: Timothy M. Purnell 9214 Center Street, Ste. 101 Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) Dear Mr. Purnell: This letter is to inform you, that this office has received complaints of the country store on the above -referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit (CUP) # 13-96, by Frederick County on December 11,1996. The Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight. The use of the store operating after midnight is a violation of the conditions placed on CUP #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit, Conditional Use Permit #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark & Cheran Zoning Administrator Enclosure MRC/kgs t07 forth Kent Sweet, Suite 202 o Wiachc�qtcr, Virginia 22601-5000 FILE COPY COUNTY of FREDERICK Department of Planning and Development S40/665-S6si FAX: S40/6784KB2 December 12, 1996 Painter -Lewis, P.L.C. 302 S. Braddock Street Suite 200 Winchester, VA 22601 RE: CUP #013-% OF PAINTER-LEWIS, P.L.C. FOR HOGUE.CREEK COUNTRY MARKET; PIN #40-A-66D 'Dear Mr. Lewis: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting of December 11,1996. Since you had withdrawn the portion of your application that requested an additional dwelling, no action was taken, on that portion of the request. The Board of Supervisors approved the portion of your Conditional Use Permit, #013-96, to allow expansion of the market with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity, 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution,.and be able to catch blowing debris. S. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6. The required screening to the: east of the store site may be a dense low screen that would capture any blowing'paer or debris that escapes from the market site. 7. The permitted hours of operation of the market will be from 5:00 AM to midnight. 107 North Kent Street - Winchester, Virginia 22601-5000 Hogue Creels Country Market CUP #013-96 Page 2 December 12,1996 If you have any questions regarding this action, please feel five to call this office. W. Payne MUer Zoning Administrator VVWM/cc cc: Commissioner of Revenue Doug Owe=, Hogue Creek Country Market Gifford Hampshire From: Gifford Hampshire Sent: Thursday, July 19, 2018 2:48 PM To: 'mcheran@fcva.us' Subject: RE: Mark Attachments: SKMBT_55218071913410.pdf Mark Here is the limited power of attorney. Will you confirm receipt of request for a deferral? Tx. gill From: Gifford Hampshire Sent: Thursday, July 19, 20181:54 PM To: mcheran@fcva.us Subject: RE: Mark Hello Mark I left you a voicemail as well. My client would like to request a deferral to ensure that all site plan issues are resolved and to continue to work with neighbors. Is this email sufficient? I will follow up with the power of attorney. Tx. Giff Hampshire. 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' Utilisez le gabarit AVERY® 5161® Sens de chargement MENEFEE EDWARD D MENEFEE ROBIN F 102 CAMARUGE CT j j STEPHENS CITY VA 22655.4844 -' -40 21 67 MENEFEE EDWARD D MENEFEE ROBIN F 102 CAMARUGE CT STEPHENS CITY VA 22655.4844 I;I (" 40 -2. 1. 67- 1 MENEFEE EDWARD D j MENEFEE ROBIN F 102 CAMARUGE CT j STEPHENS CITY VA 22655.4844 I - - < — 40 - A- - 66-B j TINCHER GEORGE W TINCHER BRENDA L 148 HOGUE CREEK LN WINCHESTER VA 22603.3519 I i 40 --A- - 66-B TINCHER GEORGE W I ` TINCHER BRENDA L 148 HOGUE CREEK LN WINCHESTER VA 22603.3519 j 40 A- - 66-B TINCHER GEORGE W i TINCHER BRENDA L 148 HOGUE CREEK LN j WINCHESTER VA 22603.3519 i -- 40 - A- - 1DO- NAIL LORING SCOTT ETALS 484 VALLEY MILL RD WINCHESTER VA I 22602.6238 I Repliez a la hachure afin de www.avery.com / i r6vAler le rebord Pop-up"" 1-800-GO-AVERY 1 COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 NOTIFICATION OF PUBLIC HEARING August 29, 2018 Fax: 540/ 665-6395 TO: THE APPLICANT(S) AND/OR ADJOINING PROPERTY OWNERS(S) RE: REVOCATION OF CONDITIONAL USE PERMIT APPLICATION #13-96 (HOGUE CREEK COUNTRY MARKET) FOR WINCHESTER 101 LLC On behalf of the Frederick County Board of Supervisors, you are hereby notified of a public hearing being held on Wednesday, September 12, 2018, at 7:00 p.m. in the Board Room of the Frederick County Administration Building at 107 North Kent Street, Winchester, Virginia to consider the following application: Conditional Use Permit #13-96 (Hogue Creek Country Market) for Winchester 101 LLC. This Conditional Use Permit is proposed to be revoked due to violations of conditions 4 and 7 from. Conditional Use Permit #13-96 which pertains to buffers, lighting pollution, noise, debris and hours of operation. The property is located at 4780 Northwestern Pike, Winchester, Virginia and is identified with Property Identification Number 40-A-66D in the Gainesboro Magisterial District in the RA (Rural Areas) Zoning District. Any interested parties wishing to speak may attend this public hearing. A digital copy of the application will be available for review online through the Planner Access Terminal, at the Handley Library and the Bowman Library the week of the meeting or at the Department of Planning and Development located at 107 North Kent Street in Winchester, Virginia, telephone number (540) 665-5651. Information regarding this application will also be available via the Planning Department's website at www.fcva.us. Sincerely, Mark R. Cheran Zoning Administrator MTK/pd 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 x/ This is to C rtify that the attached correspondence was mailed to the following on from the Department of Planning and Development, Frederick V_ VAi4�,F --���------���-�� -- 40 '&''G8� ' | 8EEHAYMOND UU|0CHESTER 101 LLC GEEED[TH . | 9505OAKE0SHAWDR 47G8NORTHWESTERN PIKE | MANASSAS VA nn��nnoon ---� ' UV|0�HE�TERVA 22603'3657 i vo '2- '' "'- 4U '/�' '--------'---�- ^~ K88UEFEEEUWARDO \ � RW8LLC KAB0EFBEROBIN F / POBOX GSU ! 102CAMARUGECT 22G554844 8TE9H�WSC0MVA ' . . CAPON BRIDGE WV 3G711OG�U / ____0�'A-�iV�4-��--�--���----'-�--�--�- - --------4O 'A. ' GG'8 / � lDNCHERGEORGEVV SHEVOKASWULL|AK0J T\NONE88RENOAL SHEVDKAD8ARBARAG / | 14BHOGUE�REEKLN 1 48ROGUECHE�KL0 VU\�CHESTERVA 22GO3�S18__�_ N80CHE3TEHV��2GO --------�---'� ~ '~~ Winchester 1O1,LLC i (~" \ �r. Patel 47�ONorthwestern Pike0A(LLDR|NGSC0TTETALS! / 484VALLEY MILL HD -- VVinchester',VA226O3 � Winchexter1O1, LLC UV\0CHESTERVA 22602-6238 Mr. ate / --�'-------�-----` 40 'A.'1O1' / . 5Ol1Piney Branch Road i NEUUO0K8EOHAHLESVV Fairfax,\AA22O3O ! NB0CD0\EBRENDAD | 4JG5NORTHWESTERN PIKE | UU|NCHE3TERVA 22603'3557 -- ------------��--- ------- -- _-��' __�_/ Mark R. Cheran, Zoning & Subdivision Administrator Frederick County Planning Department STATE OF VIRGINIA COUNTY OF FREDERICK � . a Notary Public in and for the State and County aforesaid, do hereby certify that Mark R. Cheran, Zoning & Subdivision Administrator for the Department of Planning and Development, whose name is signed to the foregoing, dated Z51 I �3 has personally appeared before me and acknowledged the same in my State and dounty aforesaid. �� .l ��van�under my hand this ��' q �o� _-_ ~ Mycommission expires oo COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES ICJ , ��'''' � ; �_�; -- Z z'� � Pak Meeting 2018 1 a.m. May 16, 2018 May 2, Wednesday May 3, Thursday May 8, Tuesday May 9, 2017 April27, Friday April30, Monday May 1, Tuesday mmittee e COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 NOTIFICATION OF PUBLIC HEARING August 1, 2018 TO: THE APPLICANT(S) AND/OR ADJOINING PROPERTY OWNERS(S) RE: REVOCATION OF CONDITIONAL USE PERMIT APPLICATION #13-96 (HOGUE CREEK COUNTRY MARKET) FOR WINCHESTER 101 LLC On behalf of the Frederick County Planning Commission, you are hereby notified of a public hearing being held on Wednesday, August 15, 2018, at 7:00 p.m. in the Board Room of the Frederick County Administration Building at 107 North Kent Street, Winchester, Virginia to consider the following application: Conditional Use Permit #13-96 (Hogue Creek Country Market) for Winchester 101 LLC. This Conditional Use Permit is proposed to be revoked due to violations of conditions 4 and 7 from Conditional Use Permit #13-96 which pertains to buffers, lighting pollution, noise, debris and hours of operation. The property is located at 4780 Northwestern Pike, Winchester, Virginia and is identified with Property Identification Number 40-A-66D in the Gainesboro Magisterial District in the RA (Rural Areas) Zoning District. Any interested parties wishing to speak may attend this public hearing. A digital copy of the application will be available for review online through the Planner Access Terminal, at the Handley Library and the Bowman Library the week of the meeting or at the Department of Planning and Development located at 107 North Kent Street in Winchester, Virginia, telephone number (540) 665-5651. Information regarding this application will also be available via the Planning Department's website at www.fcva.us. Sincerely, Mark R. Cheran Zoning Administrator MTK/pd 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 .4i This is to certify that the attached correspondence was mailed to the following on 81 V I k t from the Department of Planning and Development, Frederick County, Virginia: _-- - - -- -- 40 - A- - 66-D -- - --- - -- — 40 • A. • 102- WINCHESTER 101 lLC SEE RAYMOND 9505 OAKENSHAW DR SEE EDITH 4769 NORTHWESTERN PIKE22603.3557 MANASSAS VA 20110 5896 WINCHESTER VA 40 2 1. 67 - - 40 . A. • 99=RWS MENEFEE EDWARD D LLC MENEFEE ROBIN F PO BOX 650 102 CAMARUGE CT CAPON BRIDGE WV 26711.0650 STEPHENS CITY VA 22655.4844 46 - A. - 66.8- 40 A. • 66•A TINCHER GEORGE W SHEVOKAS WILLIAM J SHEVOKAS BARBARA G TINCHER BRENDA L 148 HOGUE CREEK LN 149 HOGUE CREEK LN WINCHESTER VA 22603.3519 WINCHESTER VA - 22603.351.6 40 A 100 Winchester- 101, LLC NAIL LORING SCOTT ETALS Mir. Patel 404 VALLEY MILL RD 5011 Piney Branch Rd _ Fairfai>.-VA 22030 -- -- - - WINCHESTER VA 22602.6238 40 - A- -101 - - - NEWCOME CHARLES W NEWCOME BRENDA D 4765 NORTHWESTERN PIKE WINCHESTER VA 22603.3557 Winchester 101, LLC - Mr. Pate? 4780 Northwestern. Pikes Winchester, VA 22603 i, Winchester 101;LLC Mr. Patel 9505 Oakenshaw Dr. Manassas, VA 20110 Mark R. Chi -,ran, Zoning & Subdivision Administrator Frederick County Planning Department STATE OF VIRGINIAt COUNTY OF FREDERICK I, Avv�, a �� - — , a Notary Public in and for the State and County aforesaid, do hereby certify that Mark R. Cheran, Zoning & Subdivision Administrator for the Dep,arfment of Planning and Development, whose name is signed to the foregoing, dated w , has personally appeared before me and acknowledged the same in my State and County aforesaid. 54 Given under my hand this % day of My commission expires ondp—"'J��7 Q2c�o2� 'ARY4}Ph]M E T E R N BLIC REGISTRATION # 364474 COMMONWEALTH OF VIRGINIA MY COMMISSION EXPIRES DECEMSER•31, 2021 COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 NOTIFICATION OF PUBLIC HEARING August 1, 2018 TO: THE APPLICANT(S) AND/OR ADJOINING PROPERTY OWNERS(S) RE: REVOCATION OF CONDITIONAL USE PERMIT APPLICATION #13-96 FOR WINCHESTER 101 LLC On behalf of the Frederick County Planning Commission, you are hereby notified of a public hearing being held on Wednesday, August 15, 2018, at 7:00 p.m. in the Board ��1 W Room of the Frederick County Administration Building at 107 North Kent Street, Winchester, Virginia to consider the following application: �w h� A x ��. 15. Ohl 0) b L Conditional Use Permit #13-96 for Winchesterr101 LLC.�h onditional Use Permit is h 5 U (o 7ob�` Jig revoked due to�riolations oft�nn itions 4 and 7ndition 4 the time of ,gyp d sit Ian submittal, a buffer shall be considered along the property line of the adjoining re ' e which uld cejljo pollu ' n, so poll , andJ1 able c h blowing �C e ris. n' o he itte s o o rati t -00 AM to midnig t. The property is oca e a ort western Pike, Winchester, Virginia and is identified with Property Identification Number 40-A-66D in the Gainesboro Magisterial District in the RA (Rural Areas) Zoning District. Any interested parties wishing to speak may attend this public hearing. A digital copy of the application will be available for review online through the Planner Access Terminal, at the Handley Library and the Bowman Library the week of the meeting or at the Department of Planning and Development located at 107 North Kent Street in Winchester, Virginia, telephone number (540) 665-5651. Information regarding this application will also be available via the Planning Department's website at www.fcva.us. Sincerely, Mark R. Cheran Zoning Administrator 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 COUNTY of .FREDERICK Department of Planning and Development 540/ 665-565 t FAX: 540/ 665-6395 NOTIFICATION OF PUBLIC MEETING April 30, 2008 TO: THE APPI.,ICANT(S) ANWOR ADJOINING PROPERTY OWNERS(S) RE: REVOCATION OF CONDITIONAI... IJSE PERMIT APPLICA7ION #09-04 OF .TAMES AND BARBARA BAYL.ISS On behalf of the Frederick Board of Supervisors, you are hereby notified ofa public meeting being held on Wednesday, May 14, 2008, at 7:15 p-in. in the Board Room of the Frederick County Administration Building at 107 North Kent Street. Winchester, Virginia to consider the following application: V► 0 1 c, Cur 41'41 UrL.S 4 1 pnS) Revocation of Conditional Use Permiti'#09-04 for James and Barbara Bayliss. This Conditional Use Permit is being revoked due to the' y. The property is located at 2680 Northwestern Pike ;Route 50 W), and is identified with Property Identification Numbers 52 -A-55 and 52-A-56 in the Gainesboro Magisterial District. A copy of the agenda will be available f<>t• review at the Handley Library and the Bowman Library the week of the meeting, or at the Department of Planning and :Development located at 107 North :Kent Street in Winchester, Virginia. Information regarding this application will also be available via the Planning Department's website at www.co.frederick.va.us. Sincerely, Mark R. Cheran Zoning Administrator MRC/bad 107 .North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 Co�-_�� lv'nclles-k/ lUl LL-C Win/ q oA-. &10D 7. Adjoining Property: USE North East South Q Irs i 'c� West Uo-< R r S n c_ .•� TO:LANCE-DATA PROCESSING FROM: PA lanning Dept. Plea s Hint ?-�ja sets of labels by THANKS! ZONING a • '4 r2,- 14 !3 /-4 8. The type of use proposed is (consult with the Planning Dept. before completing): 9. It is proposed that the following buildings will be constructed: No• 10. The following are all of the individuals, firms, or corporations owning property adjacent to both sides and rear and in front of (across street from) the property where the requested use will be conducted. (Continue on back if necessary.) These nennle. will he notified by mail of this aDDlication: Name and Property Identification Number Address Name I f^_ = l.1 A 102. c.A/7A iQUt„C G7 Property # 2 1 67 Name /�Ji� HD fn u� Ga(� i� �<ao✓e Z. L. 6 o _3 Property # P/ /V p Name ^ L W i� G� � S�� �Z ✓� � 2 6 0 3 Property # p ALQ Name L-1 /V GJt S7-tFA n-) �J I r-i e 4c STL= l/ f� 2 2. 6 o .3 Property # p Name S' _^ y Cy %l 7 6 = Z/4 2. 1 to CLJ Property # 0 LO Pame L C O� f3 eo x G S- o roperty # 9 Name H - s Ll LL I A d rJ �ti Property # Uc 6 M. VOLE Lv .' r, c Vest/ 10 1 LL L 7. Adjoining Property: USE North kJ 0 0 U _S East y G-' South 1rZ ,D I i✓ i West 61"s-i�..��— TO:LANCE-DATA PROCESSING FROM: PAM - Planning Dept. Pleas rint °9- sets of labels by �� J I �) THANKS! ZONING f>' A 8. The type of use proposed is (consult with the Planning Dept. before completing): 9. It is proposed that the following buildings will be constructed: /v0• 10. The following are all of the individuals, firms, or corporations owning property adjacent to both sides and rear and in front of (across street from) the property where the requested use will be conducted. (Continue on back if necessary.) These people will be notified by mail of this application: Name and Property Identification Number Address Name 1 r fj F ;,j A 1 C> c A /7FI A U v G 7 57 e r-s G �; y ✓f3 � a6 fS Property # P t-1 p ty p 2, ! 67 Name % /1� L of Gi [= 0 04 C� L= LJ / �I G> A v✓r w l rJ G ti c -.Sr i�4 tI R Z. L& 0-3 Property # P/ 0 fi Name iL ' C /Y 8�/ V'qZ- x N i[ c RaBA iN' i rJ &�'S i C12- i/,q z 2 6 0 3 Property # O A Name L - ►�..1 �Y % � ✓� /� LJf-fTl�/{ n� � /I<!= I G Nc STL V fl Z 2. 6 0 3 Property # �, Name S' y / D ^; �/ 7 6 /4 2. L to CLJ Property # 0 D Name L C P' O• t9 X G� O C A P D g 1 D /, HJ f si ✓ /1 G� nS Property # 1-7 C 9 9 Name H S, i- / 1 9 PC 6' v C' Property # L/ Uc /q 66,4 R C L'-p -/ S( c us`kl l U ) LL C_ P�rN q cA-- blf'D 7. Adjoining Property: USE North l-J o E _S East / ,n_eE , �— South Q itf 2 ,p I^,.� i West TO:LANCE-DATA PROCESSING FROM: P M - Planning Dept. Plea,se print sets of labels by THANKS! ZONING a.A l2, • A R- /9 8. The type of use proposed is (consult with the Planning Dept. before completing): .R/f-(2.()1;7ST To DPcrnI 2-)-1Hov✓Zs 9. It is proposed that the following buildings will be constructed: /V 0 10. The following are all of the individuals, firms, or corporations owning property adjacent to both sides and rear and in front of (across street from) the property where the requested use will be conducted. (Continue on back if necessary.) These people will be notified by mail of this application: Name and Property Identification Number Address Name i �= {.1/� 10 c Apyq AU0,D G7 S7',�FPHrrs Y ✓,4 2aG �s Property # /V O y G 2 ! 67 Name % /�,/ L �C �' l� C= o o¢ C� c= LJ �I �3 N D 6, U D t� C i� G A o✓r 2. Z- 6 0-3 Property # P0 Name '14/'L � .—.L iN' i• �'-� G�? � s i � � v'r4 L 2 6 0 3 Property # OLa 0 Name F ti % to .i i/ GJ't S7-t' A n) 1� I r-J & )I S-7 V fl 2 1 6 0 3 Property # © Name S- y D J/ T (a = P, j/2 1 L to Property # D Name Cx G�O C A p D ®✓ 0 i U/ft�,l Property # 1-7 C 9 q Name H s ,' i- [Property # L/ d A 6 n COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 MEMORANDUM TO: Frederick County Board of Supervisors FROM: Mark R. Cheran, Zoning Administrator�''�---- RE: Continuation or Revocation of Conditional Use Permit #13-96 Hogue Creek Country Market — Public Hearing DATE: August 30, 2018 At their July 25, 2018 meeting the Frederick County Board of Supervisors directed that CUP #13- 96, Hogue Creek Country Market be presented to the Planning Commission and Board of Supervisors for potential revocation through the process described in the Frederick County Zoning Ordinance for the revocation of Conditional Use Perinit (CUP). The Planning Commission held a public hearing on August 15, 2018 and recommended that the CUP #13-96, Hogue Creek Country Market not be revoked at this time. By way of background the Frederick County Board of Supervisors approved Conditional Use Permit (CUP) #13-96 Hogue Creek Country Market on December 11, 1996 to allow for an expansion of the country market on parcel 40-A-66D in the Gainesboro Magisterial District. This CUP was approved with the following conditions: 1) A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2) Any future expansion of this facility or change of use will require a new conditional use permit. 3) All review agency comments and requirements must be complied with at all times. 4) At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution, and be able to catch blowing debris. 5) If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6) The required screening to the east of the store site may be dense low screen that would capture any blowing paper or debris that escapes fiorn the market site. 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 7) The permitted hours of operation of the market will be from 5:00 A.M. to Midnight. Violation of Condition This Property was approved for a country store via Conditional Use Permit #13-96 (CUP #13-96), by the Frederick County Board of Supervisors on December 11, 1996, with the above conditions assigned to the CUP. Staff received a complaint regarding a violation of the hours of operation. The property owner was cited on April 2, 2018, for violating Condition #7 of the CUP, states hours of operation to be from 5 A.M. to Midnight. The use of the store operating after midnight is a violation of the conditions placed on Conditional Use Permit #13-96. The property owner applied to amend Condition #7 of CUP #13-96 to change the hours of operation to 24 hours, in response to a zoning violation complaint. Amending the CUP is an available remedy to this violation. The property owner submitted (CUP #07-18). At the Planning Commission meeting on June 6, 2018, citizens spoke about additional violations of the conditions assigned to the CUP. These included: Conditions #1 and #4. The Planning Commission voted to forward a recommendation of denial of the proposed change of the hours of operation to this CUP. The Board of Supervisors (Board) held a public hearing of CUP #07-18 to amend Condition #7 to extend the hours of operation at their July 25, 2018, meeting. Citizens spoke of additional violations of conditions assigned to CUP #13-96. These included: Conditions #1 and #4. The Board voted to deny the CUP to extend the hours of operation. Furthermore, the Board recommended revocation of CUP #13-96 due to violations of Conditions #1 and #4. § 165-103.08 Revocation. The Board of Supervisors may, by resolution, initiate the revocation of any active conditional use permit. The consideration of the revocation shall proceed following the procedure set forth for approving a new conditional use permit. Following recommendation by the Planning Commission, the Board may revoke an active conditional use permit for the following reasons: A. Failure to establish or discontinuance of the approved conditional use. If the approved conditional use has not been established within two years of its approval or if it has been discontinued for two years, the conditional use permit may be revoked. B. Repeated or continuing violations of this chapter, including violations of the conditions placed on the permit. C. Fraudulent, false or misleading information supplied by the Applicant in applying for the conditional use permit. Planning Commission Summary & Action of 08/15/18 Staff reported at the July 25, 2018 Board of Supervisors meeting, it was directed that CUP #13-96 be scheduled for potential revocation; reason for revocation — site plan violation, hours. of operation, light pollution, and blowing debris. Staff continued, CUP #13-96 was approved on December 11, 1996 to allow for an expansion of the.country market on parcel 40-A-66D in the Gainesboro Magisterial District. Staff noted, CUP #13-96 was approved with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change of use will require a new condition use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution, and be able to catch blowing debris. 5. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences.. 6. The required screening to the east of the store site may be dense low screen that would capture any blowing paper or debris that escapes from the market site. 7. The permitted hours of operation of the market will be from 5:00 a.m. to Midnight. Staff presented a location map and site plan of the property. It was explained, Staff had received a complaint regarding a violation of the hours of operation; the property owner was cited on April 2, 2018 for violating condition #7 — hours of operation (5 a.m. to midnight). Staff noted, the property owner applied to amend condition #7 to change the hours of operation to allow for 24 hours. The Planning Commission recommended denial of this revision on June 6, 2018 and the Board of Supervisors denied this change on July 25, 2018. Staff concluded, the violations identified have been addressed by the Applicant including the hours of operation, screening, trash, and lighting. A Commission Member inquired, is the site currently adhering to the site plan. Staff noted, as of August 10, 2018 the site plan is being adhered to. The Commission Member stated in the ordinance it reads there are three conditions for revocation; one is failure to establish or discontinue a conditional use for more than two years; the second is repeated or continued violations on the conditions of the CUP; the third is fraudulent or misleading information supplied by the Applicant. The Commission Member asked if this is the first violation for the current owners. Staff explained, the current owner has been cited for one violation; Staff has worked with him regarding site plan issues and the owner has complied. The Commission Member noted, at best there is possibly two conditions for revocation, is that enough to pull the CUP. Staff commented that is a decision for the Planning Commission and the Board of Supervisors. A Commission Member commented since the last Planning Commission meeting he has seen action taken by the Applicant to correct some of the issues discussed. Mr. Gifford Hampshire, Attorney with the law firm of Blankenship & Keith, representing the Applicant came forward. Mr. Hampshire began by emphasizing the owner has been working diligently to address the complaints brought forth by the neighbors. Mr. Hampshire presented photos that addressed the concerns such as: fencing, signs for no parking, lighting shields put in place. Mr. Hampshire noted, a lot has been done to address neighbor complaints and the Applicant is adhering to the midnight closure time. He concluded, the only violation that the current owner was cited for was the excessive hours; there may have been other complaints but only one violation, therefore the revocation is unfounded, and the Applicant wants to be a good neighbor; if any complaints arise in the future he is willing to address them promptly. Mrs. Robin Menefee, the adjacent property owner came forward and shared her concerns and thoughts. She explained, she has spent 18 months reporting the violation of hours, the fence was broken for a long time allowing the trash to enter her property and her husband has spent four hours cleaning up the property. Mrs. Menefee continued, after the first meeting the store continued to operate after midnight and the trucks entering at night were not fuel trucks but customers coming in. She noted, they are not advocating the store be closed; they feel the business and the conditions of the CUP should be closely monitored. Mrs. Menefee concluded, she and her husband are requesting the CUP be revoked due to the conditions being violated and recommend the adoption of a new CUP with conditions. Ms. Tonya Elliott, an employee of the store for three years commented the owners are truly nice people and are trying to comply and work with everyone on resolving the issues at hand. Mr. James Bucher commented he lived on the adjacent property for a period of time and the lights, noise, and trash were not major issues. He requests the store remain open for business. Mr. Edward Menefee, the adjoining property owner commented it took him four hours to clean up trash and the noise is an ongoing issue. He noted, he has been to the store on three occasions to address the issues and concerns and has not gotten any results. Mr. Menefee concluded, he would like to see the business operated better so not to impact the neighbors. Mr. Ray Hiner, a store customer commended the integrity of the store employees and owners. He noted, being a truck driver, this store and its location offers a great service to the community. Mr. Alan Morrison speaking on behalf of Mr. and Mrs. Charles and Brenda Newcome thanked the Applicant for the replacement lighting shields. He continued, late night braking remains an issue; the Newcome's do not want this store to be a truck stop and are opposed to it being open 24 hours. Ms. Beth Potts who owns a vacation home in Capon Bridge, West Virginia frequently visits the store and would like to see it remain open. Mr. Darrin Derflinger a customer commented he supports the store; he has been to other locations these owners have and like all of the stores. Mr. Derflinger noted this CUP should not be revoked due to the owners making an honest effort to comply with the conditions. Mrs. Robin Menefee commented again she is not advocating the store be closed but is asking the conditions within their control be monitored. Mr. Hampshire commented, the Applicant will continue to address any concerns and complaints from the neighbors or Staff. A Commission Member shared, he does not feel one citation warrants revocation of the CUP. A Commissioner suggested to Mr. Morrison that Mr. and Mrs. Newcome contact Staff to recommend the Transportation Committee take a look and possibly get signs from VDOT for "No Jake Brakes" being placed in the area. A Commission Member commented he is a customer of the store; he appreciates the store being there and the owners have done a lot to correct the concerns and complaints brought forth. A motion was made, seconded; and unanimously passed that CUP #13-96 not be revoked at this thee, and to recommend the Board of Supervisors direct County Staff to monitor the store for a minimum of 60 days. (Note: Commissioner Molden and Commissioner Thomas were absent from the meeting.) MRC/pd 4827 NORTHWESTERN PIKE AN.i �4789 IVVIIIHWCJItK1V '�® EKE ` �b 4743 - NORTHWESTERN PIKE 4769 NORTHWESTERN • -PIKE r, 4771 ORTH', STERN P11 F -0 Applications �p Parcels w -4 d2nan J �J ✓' N • 0729 NO,-__RTHW� RN PIKE Building Footprints B1 (Neighborhood Business District) B2 (General Business District) 46 B3 (Industrial Transition District) 41116- EM (Extractive Manufacturing District) 40 HE (Higher Education District) M1 (Light Industrial District) M2 (Industrial General District) MH1 (Mobile Home Community District) MS (Medical Support District) OM (Office - Manufacturing Park) R4 (Residential Planned Community District) - R5 (Residential Recreational Community District) RA (Rural Areas District) RP (Residential Performance District) Map '', --'1s� GiID •` �`ri No�oc \` p,F�NIO<NE RO f, �Oa r°? 50 PINE q Note: CUP # 07 - 18 Frederick County Dept of Winchester 101, LLC Planning &Developments PIN: 107 N KenttSt Suite 202 40 - A - 66D Winchester, VA 22601 Convenience Store 540 - 665 - 5651 Zoning Map Map Created: April 30, 2018 Staff: mcheran 0 105 210 420 Feet ..: +4 *� �•� J 176 HOGUE CREEK LN i ' •y - CUP7 18 Gam am - I ► "` Al. 50 0� a `� � � - - a CZi►W7 e� a 50 ,,� °e wnexnr Da Applications P Parcels diP Building Footprints CUP # 07 - 18 Note: Frederick County Dept of Winchester 101, LLC Planning & Development N Kent Si 1 07Suite PIN: 02 e 40 - A - 66D Win es 22601 Winchester, Convenience Store 51 540 - 665 - 5651 Location Map Map Created: April 30, 2018 n Inc ��n Staff: mcheran d-in F°°t Submittal Deadline S(11 Is P/C Meeting (; t< I? BOS Meeting "I le, APPLICATION FOR CONDITIONAL USE PERMIT FREDERICK COUNTY, VIRGINIA 1. Applicant (check one): Property Owner �_ Other NAME: M P. r", R r) 1L ri S H f 0 T it �_ ADDRESS: 5 n 1 I P i t l - y 131, r) ni }-J P_o au) ��t� t r.1�r)X, �/ A 2 za 3 0 TELEPHONE: j U i 41-7 S" - 9 d �1 (p 2. Please list all owners, occupants, or parties in interest of the property: 4m P_/2 3. The property is located at: (please give exact directions and include the route number of your road or street) ii­�_1' CS LEP- Vf) 2.26v.3 4. The property has a road frontage of t1,o O _r feet and a depth of 3 Z feet and consists of b (p acres. (Please be exact) 5. The property is owned by nj a " t g r . gr^r ,C 1 o f t _ ( C_, as evidenced by deed from %-� tj c,L 1-t a t� M i' L L C.-- (previous owner) recorded in deed book no. on page 2, as recorded in the records of the Clerk of the Circuit Court, County of Frederick. 6. Property Identification Number (P.I.N.) /-1 0 A C. r ]� Magisterial District /� i iJ i� s ����;1" 0 Current Zoning 7. Adjoining Property: USE North k-I c ,n East South West 6:4'e< ZONING A' /:) 8. The type of use proposed is (consult with the Planning Dept, before completing): _2�= ,t-u-jL-X T 0c) P tr.' /`r 2. �--1 11 o U t2- s 9. It is proposed that the following buildings will be constructed: 10. The following are all of the individuals, firms, or corporations owning property adjacent to both sides and rear and in front of (across street from) the property where the requested use will be conducted. (Continue on back if necessary.) These people will be notified by mail of this application: 177N2uae and Property identification Number Address Name c fJ F 1J A vL IN I-) A U a" ,= (f, T- Property # P/ N' IV D 2- 1 G7 Name TjJll61 G7 [,.,Dc 0,6z !� 117u �1D G, Uc~' G/t(-'G"/t I-k, c' 1J 1 i- Propeity # / I /y n UV l'rJ Grrc- S� L/ c /�� J z 6 0 3 Property # G f� Name P _ ! �v /7 % Cn je - N P Il- l= JJ ! �� G i ��: y i C /. V'tJ- 2- 2. 6 o 3 Property # (7 Name S y D n, f/ 7 t5 i IJ tti'e� s'TG= i2 nJ /� 11� N ti i "' /,; . ,r?r r} )- 16 03 Property # C9 /1 l 0 2- Name + C t9 13 Lg x- G s^ 0 tJ ri %� E� �✓ 6,< I D We-.7- Property # i D A % `� Name P D G U ('r G/z [-'t=iz ZA-1 I;J ) I- " - = L ,:2-2 2 Property # // r9 /-? 11. Please use this page for your sketch of the property. Show proposed and/or existing structures on the property, including measurements to all property lines. j I I /'f F" � , �✓ Cam. 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RE-lOUTgM .a•rE v W.W. l .iPT off y �)f.7 SO P-P MESEL " OFIX TEtutt Sw:w i jn'•NS £LEV -'+rRN PRRR•WIt0PWAW0 A•»t ., AX. i - PULL PLOP --+- 'ID •i 4.:U - f TlMIO ! CMFIXPi 1 i EX AWA U.ST t �. C P.M. ESP 1 CLOCT 34M r e' DP x ,� a.,rc AMD a MP0 MLAMDS RMCf, E. LOGTE -3 Sr .(1x72T K '7MRF•V — �� �. fM0 II� , r 1 ERTEM A. So JY3c I 1 1 P FOOD >� A,Ps Y%OCeie Fl r a-000, ,� 'Pn� ROTA L Leo sr 1 � tTE tWOE I-4 77 —b N wTEM IX. Pw¢ J 1 , V i 'REO' SOW SPACE .C. 2r PRSTA4 - (9 GSTE)AI ` \ 29 SP. • 9.2- 1 - L ... % y \ 1 �1• 1 1, RMIF • 20, CS 1 0E iw �T OF s. �t \ T<.YE ,.•AX 'ka,. _ 2"101 PA0 AT! I CATE _ \ q A-9] RRRERT C YN<Y1pD 4924 WANAF 17" PRE wR.OIIEJ, . ,ARA 22603 USE:0NRF5p lw m JO c J✓^ 90 sca/e 1 " s ,v tr one" • S WOMW msT•n Rrr, q-A-w RRR31Atq w. • .OT 0. urOL.Ern w�iNp�wEOs/WEE CSI[E% LMrt __h'-AwiM'.:W iP£rVer+Os 20AMR wA 2b01 JSF. MESBIFMnr AAW0011101 SIDEW" OCTAL iIb' m 9LRRI CE 3.09 iT FD.M 332 MMWA M mED m 3.35 AMCIRRG 3a9 TREE PQRSEP AtpM r tLr.••r -� i2mP�P�r o�•c ..rs...w.. w ofi r oEAR6 r • PTO• Tm Pp a DOW Frl4w.. RP It.r - oiv wms A4 1w9EP TO 9F PRE39UR TREATED ILIM P•R A4 wARDwARE To OF w T-IXPPED GALYAb2E0 nR SKIS To fA A04AMT PROPERR Cow CT DL-SY" SCREEN U G TH, ofTAR- AREA LIGHT DETAIL fE 9T[ >uw •a .mi.00—uwT �au.aKs> z PNnuoiT2m+rc:I`i. uu�R� RaP rw-9n m Vf W W r I D PPR sm PAPu. Mr I� M 3TPRII •-Y AaMR-Y .. Ci(M V calac<(nm 7; Y W ]C rT s' CowC BASE A or • r ct FAa •A• E°C.i yLy/ ePana . TRu.gv waL«T W LO ry MrnL uwTRwc rc. a Ea.. OIL sine ae ooi.�t sm u Ann W HANDICAP PARKING STRIPING LAYOUT o 9 VMI ACCESSIBLE WT TO SCALE �O < � tws. 4 g - • N ND DP STALL - STMPF a CLMPRG � n smo BLUF PAWAENT PAM' N N O r N n n MRR SVIlOL P[R ADA O NR O RPAlfMDIT PAWT N ° b c WDN. J:14N AS Swt•M aI gAP6 C O Yyo °♦ 1.00 oo 00 V . o co 1 NOTE: ° E • u: ALL MSPUTyt Mow SMALL CM &Ar `0 AN SIMS 9lLrir PLACED S i0R BL•BRw•3 AND fACAl TIES. !R•RS tPAr t PLACED 0w gUREI•tG. D 3 MANDN.AP SIGN DETAIL NOT TO SCALE ° n 10-12• : Tr STAID r�29v9•r a-. 2R9T• —� • . �u wry.r� ew — T nC ACCs3 9f?I $AiI MV(IIE31T D[TAl3 rmrxE b HEAVY UWT DATE. SL.RVEY. t to -- 20a DOVE r P-. SCALE: ORAMM 30' JCl T.•P.c� tw�r—_ C L: r �: As�IT wre w a +wA• y Rso V.wan JOB NO. SHEET. m`�.R.A��.T fPeR� s s MTns 9604001 MAu P•PP q M 12. Additional comments, if any: R r fA c ) r= < ; "T D L rD e7 r.! 1. 4 " o U QS Cfy i D T p� rjr� TS' c=��4s' % SON ✓FN�rn�[t' p /� L. z-- C rJS T o / d` /L . S' I TH A r.1 * S I (we), the undersigned., do hereby respectfully make application and petition the governing body of Frederick County, Virginia to allow the use described in this application. I understand that the sign issued to me when this application is submitted must be placed at the front property line at least seven (7) days prior to the first public hearing and maintained so as to be visible until after the Board of Supervisors' public hearing. Your application for a Conditional Use Permit authorizes any member of the Frederick County Planning Commission, Board of Supervisors or Planning and Development Department to inspect your property where the proposed use will be conducted. Signature of Applicant /��✓ Signature of Owner Pg A 1j:8S N ?A,7 G L Owners' Mailing Address 5� U 1 I rP- t r.i t Y, 6 R ra I c. • i R e wt a F 0J R frA x V A 2-Iu30 Owners' Telephone No. _7 U 3 - �i 7S - ` (, tip TO BE COMPLETED BY THE ZONING ADMINISTRATOR: USE CODE: RENEWAL DATE: Edward and Robin Menefee 102 Camaruge Court Stephens City, VA 22655 July 9, 2018 Mr. Mark R. Cheran, Zoning Administrator County of Frederick, Planning and Development 107 North Kent Street, Suite 202 Winchester, VA 22601 Re: (1) Conditional Use Permit (CUP) #013-96 and Site Plan #011-97, Hogue Creek Market Property ID 40-A-66D, Zoning District: RA (Rural Areas) (2) Correspondence to Planning Department dated 1/20/2017, 3/26/2017, and 3/16/2018 (3) Conditional Use Application # 07-18 Winchester 101 Dear Mr. Cheran: As you are aware the Planning Commission recently recommended the Board of Supervisor's deny the above referenced application requesting to operate 24/7; however, we feel you should be aware the business continues to engage in commercial operations during the hours of 12:00 a.m. and 5:00 p.m., which are the hours the business is to be closed. Examples are attached and notations provided where validation is available through a receipt or pictures/video. Initially the business turned off all lights signifying it was closed, but then began leaving canopy lights on which illuminate all the pumps and advertise/engage in 24/7 fuel sales. In the examples listed, semi -trailers have been parked for days with one refrigeration unit running all weekend; tractor trailers fueling; and one parked and idled all night. In addition, there are a number of matters that contravene the original site plan. For instance, and as we initially reported to the Planning Department 18 months ago, the fence remains non -compliant with the site plan and the required landscaping buffer remains non-existent. (Since the buffer has not been rectified we request it not be quickly implemented because at this stage with multiple issues and an open application is should be reviewed as it had not provided any density for adequate screening.) Lastly, during a night with limited moonlight it was obvious that lighting from the property is casting shadows on the far east side of our property, the front porch, and living room when the drapery is open. We respectfully request this CUP be brought before the Planning Commission for a revocation review. Based on the attached research from archived minutes of the Planning Commission we concluded there is precedence for this action. Thank you for your prompt attention to this matter. Sincerely, / Edward and Robin Menefee Cc: Mr. Charles Dehaven, Jr., Mr. Kevin Kenney, Mr. Doug McCarthy, Mr. Charles Triplett Menefee July 9,2018, Page 2 Examples of commercial activity between 12:00 a.m. and 5:00 a.m. post April 2nd notification letter: April 24, 2018 — Full lights on 4:30 a.m. with fuel sales occurring. When purchasing breakfast at the store after 5:00 a.m. a worker confirmed the store opens as early as 4:00 a.m. (Photo enclosed) April 27, 2018 — 12: 16 a.m. 2 cars fueling; all lights on. Lights completely off at 12:30 a.m. (As a side note, on my way home at 10:50 p.m. I passed a Quest fuel tanker going the wrong way down Route 50 until it could turn around at the railroad crossing.) (Photos/Video) April 28, 2018 —12:22 a.m. gentleman leaving the store; All lights off at 12:31 a.m. April 29, 2018 —12:26 a.m. customer in store. All lights out at 12:30 a.m. (Photo enclosed) May 1, 2018 — 4:30 a.m. to 5:00 a.m. has 4 vehicles fueling, Small canopy lights illuminate all the pumps. May 5, 2018 — Multiple vehicles and open until 12:30 a.m. when all lights went off. May 26, 2018 — approximately 8 vehicles midnight until closing at 12:30 a.m. Small canopy lights on. (Photo of receipt enclosed where gas and snacks were purchased at 12:22 a.m.) June 1, 2018 — First time observed lights off closer to 12:00 a.m. and until 5:00 a.m. Small canopy lights remain on all night. June 4, 2018 — Log trailer dropped in back at east side of property (Photo available) June 9, 2018 - Log trailer still in back at east side of property (Photo available) June 20, 2018 — Semi -trailer parked on east side of property line (Photo available) June 21, 2018 — 12: 10 a.m. the store is open and lights on; 12:15 a.m. store and large canopy lights off but small canopy lights on. Observed multiple cars entering for fuel between 1:20 a.m. and 4:49 a.m. Tractor trailers circled the back of the building and purchased fuel at 2:00 a.m. and 2:13 a.m. (Photos/Video) June 22, 2018 — Observed fuel sales at 1:19 a.m. and 2:18 a.m. Tractor trailers circle the building and fuel at 2:04 a.m. and 2:14 a.m. (Photo/Video available) June 23, 2018 — two semi -trailers parked on east side of property line all weekend. (Photo enclosed) June 29, 2018 —fuel sales at 12:47 a.m. to 2:32 a.m. Two tractor trailers circled the building and fueled at 2:10 a.m. (Photo enclosed/Video available) June 30, 2018 — Store and main lights out about 12:10 a.m. A tractor trailer was parked on the west side of store before closing and remained overnight idling until after 5:00 a.m. Fuel sales observed between 12:36 a.m. and 3:43 a.m. At 1:18 a.m. a tractor trailer came to back of building and dropped its semi- trailer at the west side of the property. This semi -trailer remained parked through the weekend with its Thermoking refrigeration unit running. A second semi -trailer parked on the property had been dropped the previous day. (Photos/Video available) July 6-8, 2018 —The two (2) semi -trailers parked again on east side of property line all weekend (Photo available). Menefee July 9,2018, Page 3 Conditional Use Permit Violations with Revocation Hearings • #09-04—James Bayliss Real Estate Violation on signage where a for -sale sign was considered a second sign and one of the signs exceeded the permitted four -square feet. Planning Commission Hearing 2/20/2008 • #17-04 - Elvira landscaping Violation on lack of a six-foot opaque fence to adjacent residential properties Planning Commission Hearing 6/1/2005; at the hearing the revocation review was withdrawn • #30-99— Winchester Motor Services (Mr. Van Man) Violations included tractor trailers, debris, and tires on the property Planning Commission Hearing 2/2/2005 • #17-90 — White Oak Campground Violations of inoperable motor vehicles, camper stays longer than 30 days, and a restaurant operation in the store. Some violations started with prior owner. Planning Commission 6/16/2004 • #01-01— Wilson Mining Operations Violation — Operations before a VDOT-approved entrance was in place. Planning Commission hearing 11/7/2001 Menefee July 9,2018, Page 4 Examples of Photos: June 29, 2018, 2:10 a.m. — 2 tractor trailers entering and fueling June 24, 2018, 2:10 p.m. — 2 semi -trailers parked for the weekend, one with Thermoking running May 2621%receipt ki:5am,closed k123am. } \C— ) / CO k 2 ƒ cc / u \ >� k §3\_� - « / ./]CD w. § \\tn . <\ ^\ :©.&\§2> \ Menefee July 92 18 Page 5 , -\d/` z» s)7 &.ƒ§to\• lzt52794_ek$§/) � Menefee July 9,2018, Page 6 Lights on and open April 24, 2018 4:28 a.m. Lights out, Closed April 29, 2018 1235 a.m. Menefee July 9,2018, Page 7 June 29, 2:28 a.m., Example of current lighting at night June 30, 2017, 12:27 a.m., Fuel sales Blankingship" pe .RKeith 4020 University Drive, Suite 300 Fairfax, Virginia 22030 T: 703.691.1235 F: 703,691.3913 August 14, 2018 Gifford R. Hampshire Email: ehumtshirc Cla,kfl;,iconl Frederick County Planning Commission Care of. Mark R. Cheran, Zoning Administrator, Mcheran a fevams and FEDEX 107 North Kent Street Suite 202 Winchester, Va. 22601 RE: August 15, 2018 Hearing on Continuation or Revocation of CUP #13-98, Hogue Creek Country Market Dear Mr. Chairman and Honorable Members of the Planning Commission: This firm represents Winchester 101, LLC (Winchester 101). Winchester 101 is the owner of property located at 4780 Northweste>•xl. Pike, PIN 40-A-66D, Gainesboro Magisterial District (the "Property"). The Property is subject to Conditional Use Permit # 13-96 (the "CUP"). The Board approved the CUP on December 1, 1996. The CUP allowed for the expansion of a country market that had already existed on the Property for some years. Nature of Violation Winchester 101 has only been cited once for violating the terms of the CUP. See minutes of June 6, 2018 Planning Commission meeting. The violation solely concerned the alleged operation of the country market after midnight in violation of Condition #7 of CUP. The single citation was dated April 2, 2018 and is attached for your reference (the "Citation"). Winchester 101 Provides a Valuable Service to the Community Winchester provides a valuable service to citizens of Frederick County.. 1 cite several of the comments from July 27, 2018 Winchester Star entitled; "Frederick Could Revoke Permit for Convenience Store": 0 "1 just moved not too far from the gas station and enjoy the easy access for fueling up my vehicles, etc. [remainder of commit omitted] epassman, .July 27, 2018111:48 "... that store has like 5 neighbors. The store is doing way more good for Frederick County taxpayers than it is to annoy those few neighbors. [remainder of comment omitted] Steve Cunningham, July 27, 2018,11:46 a.m.. 4020 University Drive, Suite 300, Fairfax, Virginia 22030 1 703.691.7.23E TEL 1 703.691.3913 Pnx I wwIv.Exr,AIvve.cOm R� BlankizagshipKeitle Frederick County Planning Conunission August 14, 2018 Page 2 ❑ "I live up off 259 and if I need something in the middle of the night, [I] have to go all the way to Winchester. [remainder of comment omitted] Hawkl, July 27, 2018, 10:26 a.m. ❑ "I live up off 259 and this store not being open 24 hrs causes me to have to run all the way into Winchester which is a PITA. [remainder of comment omitted] Hawk1, July 27, 201, 8:26 a.m. ❑ "Vikki Prea, the business' general manager, countered that operating 24 hours a day would be a convenience for customers and improve safety on a dark stretch of road. A lot of truth in that quote". Coaehmilbuxn, July 27, 2018, 9:53 a.m. Winchester 1.01.'s Response to the Citation Winchester 101, thus, responded to the Citation by applying to amend the CUP to allow continued valuable service to the citizens and to improve safety on a dark stretch of road. Amendment of a conditional use permit is a valid and time-honored way of resolving zoning violation. Yet, the same tnchester Star reported comments from one Board member at the July 25 hearing that application to amend the CUP was unfair: I don't like the idea that, I've been caught violating the rules. " Well I don't want to follow the rules, allow me to change the rules." McCarthy said. That's not fair to the neighbors. That's not fair to the residents of the county. And I don't like that. The Zoning Ordinance, however, gives landowners the absolute right to seek amendments to the conditional sue permits through the process set forth therein. That process is, indeed, eminently fair to the residents of the County precisely because advertised public hearings are required before the Planning Commission and the Board of Supervisors on the merits of the application. It is well - established in Virginia law, moreover, that the Board of Supervisors has great discretion to grant or deny an amendment to a CUP based on land use considerations. Board of Supervisors of Fairfax County v. Southland Corporation., 224 Va. 514, 522 (1982). Thus, application to amend a CUP to legalize a needed public service is fair to neighbors because the concerns of the neighbors will be addressed at advertised public hearings before the Planning Commission and Board of Supervisors and because of the great discretion the Board possesses to deny an application based on land use impact. 4816-3849-4817, v. 2 V� B(R�KBla.�ikin WPK-4 eatlf Frederick County Planning Commission August 14, 2018 Page 3 The Board of Supervisors Rejects Winchester 101's Request for Deferral of Public Hearing to Address Complaints Apart from the Citation and Summarily Denies the Application without Winchester 101 or its Attorney Present It is most perplexing, therefore, that the Board of Supervisors rejected the Winchester 101's attached July 19, 2018 request to defer the public hearing "to ensure that all site plan issues are resolved and to continue to work with neighbors". It is even more perplexing that the Board went on to deny the amendment application when neither the applicant nor its attorney had appeared because of the deferral request'. It appears from the video of proceedings that the reason for the denial was not related to the land use impact of the proposed amendment to extend hours, but rather out of a desire to revoke the permit altogether. As stated by another resident in response to the Winchester Star article: I'm all for following the rules, but I see nothing wrong with this business -owner asking to amend them either. If there is enough business to justify 24-hour opening, an (sic) there appears to be with Sheetz and others in this industry -why is it so offensive that they are -asking to amend the CUP? YYiat would be offensive is if the Board really entertains revoking the current CUP altogether. This business serves many residents of Frederick County and the many workers travelling to Frederick Countyfiom West. Virginia" Seottshoemaker, July 27, 10:33 a.m. .(emphasis added). It must be stressed again that the Citation is based solely on violation of Condition 47 relating to hours and that Winchester 101 has only "been cited once for violating hours of operation." See July 17 Staff Report for July 25 Board of Supervisors Meeting, page 5. In response to a question from a Board member at the July 25 hearing; Mr. Cheran stated that he is not aware of any other violations of the CUP, although he has received plenty of complaints over the years. Based on comments at the July 25 hearing, it appears that these complaints include road noise on Route 50, including trucks using jake breaks, excessive canopy lighting and the property being used as truck stop. ' In the experience of the undersigned requests for deferral of public hearings on land use applications are routinely honored for the purpose of addressing concerns of neighbors. Doing so makes common sense because it allows complaints to be resolved prior to the public hearing. It is perplexing that the Board of Supervisors did not follow this common practice this instance because Winchester 101 was in the process of addressing neighbor concerns. 4816-3849-4817, v. 2 B B1ankingship'KeitY Frederick County Planning Commission August 14, 2018 Page 4 The Board's Resolution Initiating Revocation Proceedings is Void Because it did not Comply with the Zoning Ordinance The Board of Supervisors' July 25, 2018 resolution initiating revocation of the CUP is void because it is based only on a single alleged violation of Condition 47. The Code only allows the Board to initiate revocation proceedings based on: B. Repeated or continued violations of this chapter, including violations of the conditions placed on the permit. (emphasis added). Zoning Ordinance § 165-103.08 (B). The failure of the Board of Supervisors to find that there were repeated or continuing zoning violations prior to passing its revocation ordinance renders this revocation proceeding void ab initio. Renkey v. County Board of Arlington County, 272 Va. 369, 375-76 (2006), (County's rezoning without complying with requirements of ordinance rendered action was arbitrary and capricious, and not fairly debatable, rendering rezoning void and of no effect). Therefore, the Planning Commission should recommend to the Board of Supervisors that these revocation proceedings should be dismissed as void because the Board failed to comply with the requirements of its own ordinance. Winchester 101 has Nevertheless Continued to Address Complaints Notwithstanding the above, Winchester 101 has continued to address neighbor concerns consistent with its July 19, 2018 request for deferral.2 As shown by the attached photographs, Winchester 101 has placed sluelds on canopy lights, repaired the fence, installed landscaping, erected and enforced no -parking signs to prevent unauthorized parking of trucks and hired additional service to keep trash picked up and from being carried to neighboring properties. None of these issue are part of the Citation but Winchester 101 has continued to address them anyway in the spirit of a being a good neighbor.' Winchester 101 has also redoubled its efforts to ensure closing at midnight, including the establishment of a closing protocol that starts at approximately 11:45 p.m. 2 At the July 25 Board of Supervisors hearing, Mr. Cheran stated to the Board the Winchester commenced to address the neighbor concerns promptly upon learning of them. The rejected deferral request to amend the CUP to extend hours was to continue those efforts. ' Winchester 101 is not empowered to address other complaints voiced at the July 25, 2018 hearing that led to the revocation resolution, such as noise on Route 50 including from jake breaks and increased traffic on Route 50 that has come with increase in population over the years. Winchester 101 has no control over Route 50 road noise. 4816-3849-4817, v, 2 B8KB1ar1kings11iP'Keit1?C Frederick County Plaw-a ng Commission August 14, 2018 Page 5 At the July 25 Board hearing, Mr. Cheran stated that the usual practice is to work with a landowner who is attempting to address neighbor complaints rather than to initiate revocation proceedings. Mr. Cheran also stated that out of the 5 revocation cases listed on page 3 of the Menefee letter attached to the staff report, the Board only revoked a CUP in one of those cases and that, in this single case (Winchester Motor Services), the landowner did not seek an amendment to the CUP. Thus, the usual practice is use work with landowners to abate the violation through compliance or amendment of the permit while the unusual and rare case is to revoke the permit. Indeed, based on Mr. Cheran's testimony at the July 25 hearing, it appears unprecedented for the Board to revoke a permit where the landowner is working promptly and good faith to resolve complaints and has sought an amendment of the CUP to. legalize the activity'that is the basis for the violation. Winchester 101's Prompt Resolution of Complain ts'Milita tes in Favor of the Usual Practice of Abatement Rather than the Extraordinary Practice of Revocation This case calls for the customary manner of resolving complaints through abatement rather than the extraordinary path that the Board initiated in this case. Winchester 101 has acted promptly the complaints apart the Citation when it learned of them. Winchester 101 has also redoubled its efforts to abate instances exceeding allowable hours. In addition, any revocation of the CUP would be void because the Board did not find repeated continuing violations of Condition ##7 before voting. to initiate this revocation proceeding. Therefore, Winchester 101 urges the Planning Commission to recommend that the CUP not be revoked and that the Board reconsider its ordinance summarily denying the request for amendment of the CUP without Winchester or its attorney present. Sincerely; 4 Gifford R. Hampshire Enclosures, as stated cc: Winchester 101, LLC, pprakash89Q@aol.com Mark R. Cheran, Zoning Adminstrator, meheran@fcva.us Roderick B. Williams, County Attorney, rwilligQfeva.us 4816-3849-4817, v. 2 COUNTY of FREDERICK. Department of Planning and Development 540/ 665-5651 Pax: 540/ 665-6395 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC Alin: Timothy M. Purnell 9214 Center Street, Ste. 101 Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning DistrIct: RA (Rural Areas) Dear Mr. Purnell: This letter is to inform you, that this office has received complaints of the country store on the above -referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit (CUP) # 13-96, by Frederick County on December 11,1996. The Condition #7 of the CUP states hours of operation to be from 5 A.M to Midnight. The use of the store operating after midnight is a violation of the conditions placed on CUP #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. Conditional Use Permit #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit, You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R Cheran Zoning Administrator Enclosure MRC/kgs 107 North Kent Street, Suite 202 • Winclester, Virginia 22601-5000 FILE COPY COUNTY of FREDERICK Department of Planning and Development S40l665-S65i FAX: SM6784KS2 December 12,1996 Painter -Lewis, P.L.C. 302 S. Braddock Street Suite 200 Winchester, VA 22601 RE: CUP #013-% OF PAINTCR-LEWIS, P.L.C. FOR HOGUE •CREEK COUNTRY MARKET; PIN #40-A-66D. Dear Mr. Lewis: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting of December 11,1996. Since you had withdrawn the portion of your application that requested an additional dwelling, no action was taken on that portion of the request. The Board of Supervisors approved the portion of your Conditional Use Permit, #013-96, to allow expansion of the market with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound Pollution, -and be able to catch blowing debris. S. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6. The required screening to did east of the store site may be a dense low screen that would capture any blowing paler or debris that escapes from the market site. ' 7. The permitted hours of operation of the market will be from 5:00 AM to midnight. 107 North Kent Street - Winchester, Virginia 22601-5000 Hogue Creels Country Market CUP #013-96 Page 2 December 12,1996 if you have any questions regarding this action, please feet free to call this office. S' ly, W. �iVayne Miller Zoning Administrator WWMIcc cc: Commissioner of Revenue Dung Ooeas, Hogue Creek Country Market Gifford Hampshire From: Gifford Hampshire Sent: Thursday, July 19, 2018 2:48 PM To: 'mcheran@fcva.us' Subject: RE: Mark Attachments: S KM BT_55218071913410.pdf Mark Here is the limited power of attorney. Will you confirm receipt of request for a deferral? Tx. giff From: Gifford Hampshire Sent: Thursday, July 19, 20181:54 PM To: mcheran@fcva.us Subject: RE: Mark Hello Mark left you a voicemail as well. My client would like to request a deferral to ensure that all site plan issues are resolved and to continue to work with neighbors. Is this email sufficient? I will follow up with the power of attorney. Tx. Giff Hampshire. From: Gifford Hampshire Sent: Thursday, July 19, 20181:24 PM To:'mcheran@fcva.us' <mcheran@fcva.us> Subject: Mark Here is my email for sending me the Patel information. p A so 9FFICIAL FUEL --�OF 4mm uNvco = t�'Yti I r-�rsq.�ti 4 i OL i :;j No- or, 71, .. c:. '; - �,�. n�,. t r H: �• - _ — r. � =' ` � � } •;� � .�` �a., 9 c. • ,,� ,`� �r p ."1 L^^.I,r"�-� -r�,'Jwr���I ���;4 f� �Y �"`",.� .�Y� * 4 �Q' �`�k'� iLF �'r.• `' • �: ;1_ ease ORDINANCE Action: PLANNING COMMISSION: August 15, 2018 Recommended Approval BOARD OF SUPERVISORS: September 12, 2018 ORDINANCE REVOCATION - CONDITIONAL USE PERMIT #13-96 HOGUE CREEK COUNTRY MARKET WHEREAS, at the July 25, 2018 meeting of the Frederick County Board of Supervisors, the Board of Supervisors directed that CUP #13-96, Hogue Creek Country Market be presented to the Planning Commission and Board of Supervisors for potential revocation through the process, described in the Frederick County Zoning Ordinance for the revocation of a Conditional Use Permit (CUP); and WHEREAS, the Frederick County Planning Commission held a public hearing on this during their regular meeting on August 15, 2018 and recommended that CUP #13-96 not be revoked at this time; further, that Staff monitor the store for a minimum of 60 days; and WHEREAS, the Frederick County Board of Supervisors held a public hearing on this during their regular meeting on September 12, 2018; and, NOW, THEREFORE, BE IT ORDAINED that CUP #13-96, Hogue Creek Country Market is revoked at this time. Passed this 12th day of September 2018 by the following recorded vote: Charles S. DeHaven, Jr., Chairman J, Douglas McCarthy Shannon G. Trout Robert W. Wells PDRes #31-18 Gary A. Lofton Judith McCann -Slaughter Blaine P. Dunn A COPY ATTEST Kris C. Tierney Frederick County Administrator ORDINANCE Action: PLANNING COMMISSION: August 15, 2018 Recommended Against Revocation at this time with monitoring BOARD OF SUPERVISORS: September 12, 2018 Public Hearing Held. Board Took No Further Action at This Time. ORDINANCE REVOCATION - CONDITIONAL USE PERMIT #13-96 HOGUE CREEK COUNTRY MARKET WHEREAS, at the July 25, 2018 meeting of the Frederick County Board of Supervisors, the Board of Supervisors directed that CUP #13-96, Hogue Creek Country Market be presented to the Planning Commission and Board of Supervisors for potential revocation through the process, described in the Frederick County Zoning Ordinance for the revocation of a Conditional Use Permit (CUP); and WHEREAS, the Frederick County Planning Commission held a public hearing on this during their regular meeting on August 15, 2018 and recommended that CUP #13-96 not be revoked at this time; further, that Staff monitor the store for a minimum of 60 days; and WHEREAS, the Frederick County Board of Supervisors held a public hearing on this during their regular meeting on September 12, 2018; and, NOW, THEREFORE, BE IT ORDAINED that CUP #13-96, Hogue Creek Country Market is revoked at this time. Charles S. DeHaven, Jr., Chairman J. Douglas McCarthy Shannon G. Trout Robert W. Wells PDRes #3 l -18 Gary A. Lofton Judith McCann -Slaughter Blaine P. Dunn A COPY ATTEST Kris C. Tierney Frederick County Administrator (2k �t-�,[I� 14 u o-c b y c� 44s o a-k P C ry\�� (�) COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 MEMORANDUM TO: Frederick County Board of Supervisors FROM: Mark R. Cheran, Zoning Administrator RE: Continuation or Revocation of Conditional Use Permit #13-96 Hogue Creek Country Market — Public Hearing DATE: August 30, 2018 At their July 25, 2018 meeting the Frederick County Board of Supervisors directed that CUP #13- 96, Hogue Creek Country Market be presented to the Planning Commission and Board of Supervisors for potential revocation through the process described in the Frederick County Zoning Ordinance for the revocation of Conditional Use Permit (CUP). The Planning Commission held a public hearing on August 15, 2018 and recommended that the CUP #13-96, Hogue Creek Country Market not be revoked at this time. By way of background the Frederick County Board of Supervisors approved Conditional Use Permit (CUP) #13-96 Hogue Creek Country Market on December 11, 1996 to allow for an expansion of the country market on parcel 40-A-66D in the Gainesboro Magisterial District. This CUP was approved with the following conditions: 1) A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2) Any future expansion of this facility or change of use will require a new conditional use permit. 3) All review agency comments and requirements must be complied with at all times. 4) At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution, and be able to catch blowing debris. 5) If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6) The required screening to the east of the store site may be dense low screen that would capture any,blowing paper or debris that escapes from the market site. 107 North Kent Street, Suite 202 9 Winchester, Virginia 22601-5000 7) The permitted hours of operation of the market will be from 5:00 A.M. to Midnight. Violation of Condition This Property was approved for a country store via Conditional Use Permit #13-96 (CUP #13-96), by the Frederick County Board of Supervisors on December 11, 1996, with the above conditions assigned to the CUP. Staff received a complaint regarding a violation of the hours of operation. The property owner was cited on April 2, 2018, for violating Condition #7 of the CUP, states hours of operation to be from 5 A.M. to Midnight. The use of the store operating after midnight is a violation of the conditions placed on Conditional Use Permit #13-96. The property owner applied to amend Condition #7 of CUP #13-96 to change the hours of operation to 24 hours, in response to a zoning violation complaint. Amending the CUP is an available remedy to this violation. The property owner submitted (CUP #07-18). At the Planning Commission meeting on June 6, 2018, citizens spoke about additional violations of the conditions assigned to the CUP. These included: Conditions #1 and #4. The Planning Commission voted to forward a recommendation of denial of the proposed change of the hours of operation to this CUP. The Board of Supervisors (Board) held a public hearing of CUP #07-18 to amend Condition #7 to extend the hours of operation at their July 25, 2018, meeting. Citizens spoke of additional violations of conditions assigned to CUP #13-96. These included: Conditions #1 and #4. The Board voted to deny the CUP to extend the hours of operation. Furthermore, the Board recommended revocation of CUP #13-96 due to violations of Conditions #1 and #4. § 165-103.08 Revocation. The Board of Supervisors may, by resolution, initiate the revocation of any active conditional use permit. The consideration of the revocation shall proceed following the procedure set forth for approving a new conditional use permit. Following recommendation by the Planning Commission, the Board may revoke an active conditional use permit for the following reasons: A. Failure to establish or discontinuance of the approved conditional use. If the approved conditional use has not been established within two years of its approval or if it has been discontinued for two years, the conditional use permit may be revoked. B. Repeated or continuing violations of this chapter, including violations of the conditions placed on the permit. C. Fraudulent, false or misleading information supplied by the Applicant in applying for the conditional use permit. Planning Commission Summary & Action of 08/15/18 Staff reported at the July 25, 2018 Board of Supervisors meeting, it was directed that CUP #13-96 be scheduled for potential revocation; reason for revocation — site plan violation, hours of operation, light pollution, and blowing debris. Staff continued, CUP #13-96 was, approved on December 11, 1996 to allow for an expansion of the country market on parcel 40-A-66D in the Gainesboro Magisterial District. Staff noted; CUP #13-96 was approved with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change of use will require a new condition use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce -light pollution, sound pollution, and be able to catch blowing debris. 5. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6. The required screening to the east of the store site may be dense low screen that would capture any blowing paper or debris that escapes from the market site. 7. The permitted hours of operation of the market will be from 5:00 a.m. to Midnight. Staff presented a location map and site plan of the property. It was explained, Staff had received a complaint regarding a violation of the hours of operation; the property owner was cited on April 2, 2018 for violating condition #7 — hours of operation (5 a.m. to midnight). Staff noted, the property owner applied to amend condition #7 to change the hours of operation to allow for 24 hours. The Planning Commission recommended denial of this revision on June 6, 2018 and the Board of Supervisors denied this change on July 25, 2018. Staff concluded, the violations identified have been addressed by the Applicant including the hours of operation, screening, trash, and lighting. A Commission Member inquired, is the site currently adhering to the site plan. Staff noted, as of August 10, 2018 the site plan is being adhered to. The Commission Member stated in the ordinance it reads there are three conditions for revocation; one is failure to establish or discontinue a conditional use for more than two years; the second is repeated or continued violations on the conditions of the CUP; the third is fraudulent or misleading information supplied by the Applicant. The Commission Member asked if this is the first violation for the current owners. Staff explained, the current owner has been cited for one violation; Staff has worked with him regarding site plan issues and the owner has complied. The Commission Member noted, at best there is possibly two conditions for revocation, is that enough to pull the CUP. Staff commented that is a decision for the Planning Commission and the Board of Supervisors. A Commission Member commented since the last Planning Commission meeting he has seen action taken by the Applicant to correct some of the issues discussed. Mr. Gifford Hampshire, Attorney with the law firm of Blankenship & Keith, representing the Applicant" came forward. Mr. Hampshire began by emphasizing the owner has been working diligently to address the complaints brought forth by the neighbors. Mr. Hampshire presented photos that addressed the concerns such as: fencing, signs for no parking, lighting shields put in place. Mr. Hampshire noted, a lot has been done to address neighbor complaints and the Applicant is adhering to the midnight closure time. He concluded, the only violation that the current owner was cited for was the excessive hours; there may have been other" complaints but only one violation, therefore the revocation is unfounded, and the Applicant wants to be a good neighbor; if any complaints arise in the future he is willing to address them promptly. Mrs. Robin Menefee, the adjacent property owner came forward and shared her concerns and thoughts. She explained, she has spent 18 months reporting the violation of hours, the fence was broken for a long time allowing the trash to enter her property and her husband has spent four hours cleaning up the property. Mrs. Menefee continued, after the first meeting the store continued to operate after midnight and the trucks entering at night were not fuel trucks but customers coming in. She noted, they are not advocating the store be closed; they feel the business and the conditions of the CUP should be closely monitored. Mrs. Menefee concluded, she and her husband are requesting the CUP be revoked due to the conditions being violated and recommend the adoption of a new CUP with conditions. Ms. Tonya Elliott, an employee of the store for three years commented the owners are truly nice people and are trying to comply and work with everyone on resolving the issues at hand. Mr. James Bucher commented he lived on the adjacent property for a period of time and the lights, noise, and trash were not major issues. He requests the store remain open for business. Mr. Edward Menefee, the adjoining property owner commented it took him four hours to clean up trash and the noise is an ongoing issue. He noted, he has been to the store on three occasions to address the issues and concerns and has not gotten any results. Mr. Menefee concluded, he would, like to see the business operated better so not to impact the neighbors. Mr. Ray Hiner, a store customer commended the integrity of the store employees and owners. He noted, being a truck driver, this store and its location offers a great service to the community. Mr. Alan Morrison speaking on behalf of Mr. and Mrs. Charles and Brenda Newcome thanked the Applicant for the replacement lighting shields. He continued, late night braking remains an issue; the Newcome's do not want this store to be a truck stop and are opposed to it being open 24 hours. Ms. Beth Potts who owns a vacation home in Capon Bridge, West Virginia frequently visits the store and would like to see it remain open. Mr. Damn Derflinger a customer commented he supports the store; he has been to other locations these owners have and like all of the stores. Mr. Derflinger noted this CUP should not be revoked due to the owners making an honest effort to comply with the conditions. Mrs. Robin Menefee commented again she is not advocating the store be closed but is asking the conditions within their control be monitored. Mr. Hampshire commented, the Applicant will continue to address any concerns and complaints from the neighbors or Staff. A Commission Member shared, he does not feel one citation warrants revocation of the CUP. A Commissioner suggested to Mr. Morrison that Mr. and Mrs. Newcome contact Staff to recommend the Transportation Committee take a look and possibly get signs from VDOT for "No Jake Brakes" being placed in the area. A Commission Member commented he is a customer of the store; he appreciates the store being there and the owners have done a lot to correct the concerns and complaints brought forth. A motion was made, seconded, and unanimously passed that CUP #13-96 not be revoked at this time, and to recommend the Board of Supervisors direct County Staff to monitor the store for a minimum of 60 days. (Note: Commissioner Molden and Commissioner Thomas were absent from the meeting.) MRC/pd M e NORTHINESTE Applications Parcels {� Building Footprints B1 (Neighborhood Business District) B2 (General Business District) B3 (Industrial Transition District) EM (Extractive Manufacturing District) HE (Higher Education District) M1 (Light Industrial District) M2 (Industrial General District) MH1 (Mobile Home Community District) MS (Medical Support District) ' OM (Office - Manufacturing Park) R4 (Residential Planned Community District) R5 (Residential Recreational Community District) RA (Rural Areas District) RP (Residential Performance District) "0u''ra 50�T PIMENCIL•a Note: CUP # 07 - 18 Frederick County Dept of \ Winchester 101, LLC Planning & Development 107 N Kent St e PIN: 40 - A - 66D Suite 202 t Winchester, VA 22601 Convenience Store 540 - 665 - 5651 A� Zoning Map Map Created: April 30, 2018 if Staff: mcheran n Inc o�n non reel gApplications Parcels Building Footprints Note: CUP # 07 - 18 f Frederick County Dept of \ Winchester 101, LLC Planning & Development PIN: 107 N Kent St e 40 - A - 66D Suite 202 S i Winchester, VA 22601 Convenience Store 540 - 665 - 5651 .y Location Map Map Created: April 30, 2018 Staff: mcheran \ 0 105 210 420 Feet I Submittal Deadline 5fil 118 P/C Meeting 1, B BOS Meeting t1 r '8 APPLICATION FOR CONDITIONAL USE PERMIT FREDERICK COUNTY, VIRGINIA 1. Applicant (check one): Property Owner Other NAME: M A P Ali i< ra s 1 /� ,-3 T C 1_ ADDRESS: ti t i Pin.' y t3 �, ►� �.; c rr t)p FAirZr►�x,V A Lj TELEPHONE: 'T o 3 ti 7 S- 9 6 y o 2. Please list all owners, occupants, or parties in interest of the property: ,tjK ! R p K A'S "+ 4.L. T-'r 1. The property is located at: (please give exact directions and include the route number of your road or street) y? S(_) 1,)p9Tr-1 b C_ETc RAC P iK.r ij ) t,) L j�jCSFi -ir ►1/9 2.16V3 4. The property has a road frontage of % D feet and a depth of Z feet and consists of 5, o (o acres. (Please be exact) The property is owned by ,�L u t f r toll Lc- as evidenced by deed from H ,' 1 L L (previous owner) recorded in deed book no. _L�_ on page 2-3 6 , as recorded in the records of the Clerk of the Circuit Court, County of Frederick. 6. Property Identification Number (P.I.N.) /1 o A 4 6, -6 Magisterial District ;j 431-4 n Current Zoning 7. Adjoining Property: USE North V-1 c L- p . S East South West Ce'"f- ZONING 8. The type of use proposed is (consult with the Planning Dept. before completing): Lle2 (1 L ,! 7— 0 o P I- n1 Z U r2S 9. It is proposed that the following buildings will be constructed: 10. The following are all of the individuals, firms, or corporations owning property adjacent to both sides and rear and in front of (across street from) the property where the requested use will be conducted. (Continue on back if necessary.) These ueovle will be notified by mail of this application: Name and Property Identification Number Address Name H' W A i 1 D 1 �- A NA at tl c, c G T �••sr'•-'s c err v'rz 1 a6 S_s' Property # t l n/' p y p 2 1 67 Name iir -r JrF 2. ).G> 0.3 Property # Name ^ � Q hl ✓ALLEY N I L L- /� DSO A 1,V j' rJ Ltlr s c�iZ, t �f� Z 2 6 0.3 Property # A Name h 7 !o ✓r N" i►Jf sT! R �✓ P 1l-< != jJ ) t-J e- "zr7 ?' "' 01 2 J- 6 o 3 Property # D Name S r,; A �! 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Cheran, Zoning Administrator, Mcheran@i feva.us and FEDEX . 107 North Kent Street Suite 202 Winchester, Va. 22601 RE: August 15, 2018 Hearing on Continuation or Revocation of CUP # 13-98, Hogue Creek Country Market Dear Mr. Chairman and Honorable Members of the Planning Commission: This firm represents Winchester .101, LLC (Winchester 101). Winchester 101 is the owner of property located at 4780 Northwestern Pike, P1N 407A-66D, Gainesboro Magisterial District (the "Property"). The Property is subject to Conditional Use Permit # 13-96 (the "CUP"). The Board approved the CUP on December 1,1996. The CUP allowed for the expansion of a country market that had already existed on the Property for some years. Nature of Violation Winchester 101 has only been cited once for.violating the terms of the CUP. See minutes of June 6, 2018 Planning Commission meeting. The violation solely concerned the alleged operation of the country market after midnight in violation of Condition #7 of CUP. The single citation was dated April 2, 2018 and is attached for your reference (the "Citation"). Winchester 101 Provides a Valuable Service to the Community Winchester provides a valuable service to citizens of Frederick County. 1 cite several of the comments from July 27, 201.8 Winchester Star entitled, "Frederick Could .Revoke Permit for Convenience Store": 0 "l just moved not too far from the gas station and enjoy the easy access for fueling up my vehicles, etc. [remainder of commit omitted] cpassman, July 27, 201811:48 D ".. , that store has like 5 neighbors. The store is doing way more good for Frederick County taxpayers than it is to annoy those few neighbors. [remainder of comment omitted] Steve Cunningham, July 27, 2018,11:46 a.m. 4020 University Drive, Suite 300, Fairfax, Virginia 22030 1 703.691.1235 TEL 1 703.691.3913 FAX I WWtv.EKLA\vvA.COm U Blank""5ship'KeitY' Frederick County Planning Commission August 14, 2018 Page 2 0 "1 live up off 259 and if I need something in the middle of the night, [I] have to go all the way to Winchester. [remainder of comment omitted] Hawkl, July 27, 2018, 10:26 a.m. ❑ "I live up off 259 and this store not being open 24 hrs causes me to have to run all the way into Winchester which is a PITA. [remainder of cominent omitted] Hawk1, July 27, 201, 8:26 a.m. 0 "Vikki Prea, the business' general manager, countered that operating 24 hours a day would be a convenience for customers and improve safety on a dark stretch of road. A lot of truth in that quote". Coaehmilburn, July 27, 2018, 9:53 a.m. Winchester 101's Response to the Citation Winchester 101, thus, responded to the Citation by applying to amend the CUP to allow continued valuable service to the citizens and to improve safety on a dark stretch of road. Amendment of a conditional use permit is a valid and time-honored way of resolving zoning violation. Yet, the same Winchester Star reported comments from one Board member at the July 25 hearing that application to amend the CUP was unfair: I don't like the idea that, I've been* caught violating the rules. " Well I don't want to follow the rules, allow me to change the rules." McCarthy said. That's not fair to the neighbors. That's not fair to the residents of the county. And I don't like that. The Zoning Ordinance, however, gives landowners the absolute right to seek amendments to the conditional sue permits through the process set forth therein. That process is, indeed, eminently fair to the residents of the County precisely because advertised public hearings are required before the Planning Commission and the Board of Supervisors on the merits of the application. It is well - established in Virginia law, moreover, that the Board of Supervisors has great discretion to grant or deny an amendment to a CUP based on land use considerations. Board of Supervisors of Fairfax County v. Southland Corporation, 224 Va. 514, 522 (1982). Thus, application to amend a CUP to legalize a needed' public service is fair to neighbors because the concerns of the neighbors will be addressed at advertised public hearings before the Planning Commission and Board of Supervisors and because of the great discretion the Board possesses to deny an application based on land use impact. 4816-3849-4817, v. 2 i an B8-,s-KB1;311`1i-r1gsmPKeitYc Frederick County Planning Commission August 14, 2018 Page 3 The Board of Supervisors Rejects Winchester 101's Request for Deferral of Public Rearing to Address Complaints Apart from the Citation and Summarily Denies the Application without Winchester 1.01 or its Attorney Present It is most perplexing, therefore, that the Board of Supervisors rejected the Winchester 101's attached July 19, 2018 request to defer the public hearing "to ensure that all site plan issues are resolved and to continue to work with neighbors". It is even more perplexing that the Board went on deny the amendment application when neither the. applicant nor its attorney had appeared because of the deferral request'. It appears from the video of proceedings that the reason for the denial was not related to the land use impact of the proposed amendment to extend hours, but rather out of a desire to revoke the permit altogether. As stated. by another resident in response to the Winchester Star article: I'm all for following the rules,,but I see, nothing wrong with this business -owner asking to amend them either. If there is enough business to justify 24-hour opening, an (sic) there appears to be with Sheetz and others in this, industry -why is it so offensive that they are asking to amend the CUP? 1111iat would be offensive is ifthe ,board really entertains revoking the current CUP altogether. This business serves many residents of Frederick County and the many workers travelling to Frederick County from West. Virginia" Scottshoemaker, July 27, 10:33 a.m.. (emphasis added). It must be stressed again that the Citation is based solely on violation. of Condition.47 relating to hours and that Winchester 101 has only "been cited once for violating hours of operation." See July 17 Staff Report for July-25 Board of Supervisors Meeting, page 5. In response to a question from a Board member at the July 25 hearing, Mr. Cherans. tated that he is not aware of any other violations of the CUP, although he has received plenty of complaints over the years. Based on comments at the July 25 hearing, it appears that these complaints include road, noise on Route 50, including trucks using jake breaks,. excessive canopy lighting and the property being used as truck stop. ' In the experience of the undersigned requests for deferral of public hearings on .land use. applications, are routinely honored, for ,the purpose of addressing concerns of neighbors. Doing so makes common sense because it allows complaints to be resolved prior to the public hearing. It is perplexing that the Board of Supervisors did not follow this common practice this instance because Winchester 101 was in the process of addressing neighbor concerns. 4816-38494817, v. 2 B&K" Blai*ingsMp' KeitY Frederick County Planning Commission August 14, 2018 Page 4 The Board's Resolution Initiating Revocation Proceedings is Void Because it did not Comply with the Zoning Ordinance The Board of Supervisors' July 25, 2018 resolution initiating revocation of the CUP is void because it is based only on a single alleged violation of Condition 47. The Code only allows the Board to initiate revocation proceedings based on: B. Repeated or continued violations of this chapter, including violations of the conditions placed on the permit. (emphasis added). Zoning Ordinance § 165-103.08 (B). The failure of the Board of Supervisors to find that there were repeated or continuing zoning violations prior to passing its revocation ordinance renders this revocation proceeding void ab initio. Renkey v. County Board of Arlington County, 272 Va. 369, 375-76 (2006), (County's rezoning without complying with requirements of ordinance rendered action was arbitrary and capricious, and not fairly debatable, rendering rezoning void and of no effect). Therefore, the Planning Commissions should recommend to the Board of Supervisors that these revocation proceedings should be dismissed as void because the Board failed to comply with the requirements of its own ordinance. Winchester 101 has Nevertheless Continued to Address Complaints Notwithstanding the above, Winchester 101 has continued to address neighbor concerns consistent with its July 19, 2018 request for deferral.2 As shown by the attached photographs, Winchester 101 has placed shields on canopy lights, repaired the fence, installed landscaping, erected and enforced no -parking signs to prevent unauthorized parking of trucks and hired additional service to keep trash picked up and from being carried to neighboring properties. None of these issue are part of the Citation but Winchester 101 has continued to address them anyway in the spirit of a being a good neighbor.3 Winchester 101 has also redoubled its efforts to ensure closing at midnight, including the establishment of a closing protocol that starts at approximately 11:45 p.m. 2 At the July 25 Board of Supervisors hearing, Mr. Cheran stated to the Board the Winchester commenced to address the neighbor concerns promptly upon leaning of them. The rejected deferral request to amend the CUP to extend hours was to continue those efforts. 3 Winchester 101 is not empowered to address other complaints voiced at the July 25, 2018 hearing that led to the revocation resolution, such as noise on Route 50 including from jake breaks and increased traffic on Route 50 that has come with increase in population over the years. Winchester 101 has no control over Route 50 road noise. 4816-3849-4817, v. 2 B8mKB'm*fi1gs'1iPKeith` Frederick County Planning Commission August 14, 2018 Page 5 At the July 25 Board hearing, Mr. Cheran stated that the usual practice is to work with a landowner who is attempting to address neighbor complaints rather than to initiate revocation proceedings. Mr. Cheran also stated that out of the 5 revocation cases listed on page 3 of the Menefee letter attached to the staff report, the Board only revoked a CUP in one of those cases and that, in this single case (Winchester Motor Services), the landowner did not seek an amendment to the CUP. Thus, the usual practice is use work with landowners to abate the violation through compliance or amendment of the permit while the unusual and rare case is to revoke the permit. Indeed, based on Mr. Cheran's testimony at the July 25 hearing, it appears unprecedented for the Board to revoke a permit where the landowner is working promptly and good faith to resolve complaints and has sought an amendment of the CUP to legalize the activity that is the basis for the violation. Winchester 101's Prompt Resolution of Complaints Militates in Favor of the Usual Practice of Abatement Rather than the Extraordinary Practice of Revocation This case calls for the customary manner of resolving complaints thxougli abatement rather than the extraordinary path that the Board initiated in this case. Winchester 101 has acted promptly the complaints apart the Citation when it learned of them. Winchester 101 has also redoubled its efforts to abate instances exceeding allowable hours. In addition, any revocation of the CUP would be void because the Board did not find repeated continuing violations of Condition ##7 before voting to initiate this revocation proceeding. Therefore, Winchester 101. urges the Planning Commission to recommend that the CUP not be revoked and that the Board reconsider its ordinance summarily denying the request for amendment of the CUP without Winchester or its attorney present. Sincerely, Gifford R. Hampshire Enclosures, as stated cc: Winchester 101, LLC, pprakash890@aol.com Mark R. Cheran, Zoning Adminstrator, mcheran@fcva.us Roderick B. Williams, County Attorney, rwillia(@fcva.us 4816-3849-4817, v. 2 COUNTY of FREDERIC'K. Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 CERTIFIED MAIL April 2, 2018 Winchester 101 LLC Attn: Timothy M. Purnell 9214 Center Street, Ste. 101 Manassas, Virginia 20110 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) Dear Mr. Pumell: This letter is to inform you, that this office has received complaints of the country store on the above -referenced property violating its required hours of operations. This property was approved for a county store via Conditional Use Permit (CUP) # 13-96, by Frederick County on December 11,1996. The Condition #7• of the CUP state' hours of operation to be from 5 A.M to Midnight. The use of the store operating after midnight is a violation of the conditions placed on CUP #13-96. In accordance with Section 165-103.08 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. Conditional Use Permit #13-96 will be scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office regarding the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/kgs 107 North Kent Street, Suite 202 * Winchester, Virginia 22601-5000 FILE COPY COUNTY of FREDERICK Department of nd DevOopment 1 FAX: SW679-0692 December 12, 1996 Painter -Lewis, P.L.C. 302 S. Braddock Street Suite 200 Winchester, VA 22601 RE: CUP #013-% OF PAINTER-LEWIS, P.L.C. FOR HOGUE.CREEK COUNTRY MARKET; PIN 040-A-66D *Dear Mr. Lewis: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting of December 11,1996. Since you had withdrawn the portion of your application that requested an additional dwelling, no action was taken on that portion of the request. The Board of Supervisors approved the portion of your Conditional Use Permit, #013-96, to allow expansion of the market with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution,. and be able to catch blowing debris. 5. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6. The required screening to tie ,east of the store site may be a dense low screen that would capture any blowing pi� or debris that escapes from the market site. 7. The permitted hours of operation of the market will be from 5:00 AM to midnight. 107 North Kent Street • Winchester, Virginia 22601-MO Hogue Credo Country Market CUP #013-96 Page 2 December 12,1996 if you have any questions regarding this action, please feel free to call this office. W. Wayne NUer Zonin¢ Administrator Wwmcc cc: Commissioner of Revenue Doug Ovens, Hogue Creek Cmmtry Market Gifford Hampshire From: Gifford Hampshire Sent: Thursday, July 19, 2018 2:48 PM To: ' mchera n @fcva.us' Subject: RE: Mark Attachments: SKMBT 55218071913410.pdf Mark Here is the limited power of attorney. Will you confirm receipt of request for a deferral? Tx. gill From: Gifford Hampshire Sent: Thursday, July 19, 20181:54 PM To: mcheran@fcva.us Subject: RE: Mark Hello Mark I left you a voicemail as well. My client would like to request a deferral to ensure that all site plan issues are resolved and to continue to work with neighbors. Is this email sufficient? I will follow up with the power of attorney. Tx. Giff Hampshire. From: Gifford Hampshire Sent: Thursday, July 19, 20181:24 PM To: 'mcheran@fcva.us' <mcheranC@fcva.us> Subject: Mark Here is my email for sending me the Patel information. 1 �.` ys K � O 3 x - �l IllCO .a so 9MI-CZAAln[ FUEL �SUNOCO � �,.� y i '.g�, 1. i i r,�, r .-r�; :�' r �' ,,1� � r ,''t l..� �t ` � � tt II� } I `` ' ! IIis1{1 ����11��1 �♦t ! I I��� F I r� � I I � �' � � a ..^ ?a. +y�r1i;- �I 4 _ tBUCF � i i III1 I i l -1V 5 'rtir �y � A .r, 'r r . ' � yam,. 4- 4!5-44 K. 3 7,- COUNTY of FREDERICK Department of Planning and Development 540/ 665-5651 Fax: 540/ 665-6395 July 27, 2018 Mr. Prakash Patel Winchester 101 LLC 4780 Northwestern Pike Winchester, VA 22603 RE: Conditional Use Permit #07-18 Property Identification Number: 40-A-661) Dear Mr. Patel: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting on July 25, 2018: Conditional Use Permit #07-18 for a Country General Store to change hours of operation was denied. You have the right to reapply after 12 months have expired. If you have any questions regarding this action, please feel free to call this office. Sincerely, 1VIa1`k R. Cheran " ` --- Zoning Administrator MRC/pd cc: J. Douglas McCarthy, Gainesboro District Supervisor Kevin Kenney, Chairman of Planning Commission Charles E. Triplett and June Wilmot, Gainesboro District Planning Commissioners Gifford Hampshire, email gampshire@bklawva.com Ell 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 July 27, 2018 Mr. Prakash Patel Winchester, 101 LLC., Winchester, VA 22603 RE: Revocation of Conditional Use Permit #13-96(Hogue Creek Country Market) Property Identification Number: 404-661) Dear Mr. Patel: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting on July 25, 2018. At this meeting the Board of Supervisors directed Conditional Use Permit #13-96 for Hogue Creek Country Market (Winchester 101 LLC) be scheduled for revocation. This revocation is due to violations of conditions 4 and 7 of Conditional Use Permit #13-96 which pertain to buffers, light pollution, noise, debris and hours of operation. The property is located at 4780 Northwestern Pike, Winchester, Virginia and is identified with Property Identification Number 40-A-66D in the Gainesboro Magisterial District. The revocation of Conditional Use Permit #13-96 is scheduled to be heard by the Planning Commission on August 15, 2018 and the Board of Supervisors on September 12, 2018. If you have any questions regarding this action, please feel free to call this office. Sincerely, ark R. Cheran Zoning Administrator MRC/pd cc: J. Douglas McCarthy, Gainesboro District Supervisor Kevin Kenney, Chairman of Planning Commission Charles E. Triplett and June Wilmot, Gainesboro District, Planning Commissioners Gifford Hampshire, email gampshire@bklawva.com 107 North Kent Street, Suite 202 ® Winchester, Virginia 22601-5000 RT. 50 Gasmart Sunoco, 1 (540) 877-2.622 4780 Northwestern Pike Winchester, VA 22603 03/27/2018 12:04:09 AM Register: 1 Trans #: 6836 Op ID: 6 Your cashier: MOH 3 MUSKETEERS $1.29 101 Subtotal = $1.29 Tax = $0.07 Total = $106 Change Due = $-3.64 Cash $5 MO Footer ■ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ■ Print your name and address on the reverse so that we can return the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: Winchester 101 LLC 4780 Northwestern Pike Winchester, Virginia 22603 Xr' -- - - ❑ Addressee eceived by (Printed Name) C. Date of Delivery D. Is delivery address different from item 1? ❑ Yes If YES, enter delivery address below: ❑ No 3. Service Type P Certified Mail® ❑ Priority Mail Express'" Registered p Return Receipt for Merchandise ❑ Insured Mail ❑ Collect on Delivery 4. Restricted Delivery? (Extra Fee) ❑ Yes 7017 0660 0000 7134 3643 1 PS Form 3811, July 2013 Domestic Return Receipt UNITED STATES POSTAL SERVICE First -Class Mail Postage & Fees Paid USPS Permit No. G-10 • Sender: Please print your name, address, and ZIP+41 in this box* Frederick County Dept of Planning & Development 107 N. Kent Street, Suite 202 Winchester, VA 22601 rl ')C_ ■ Complete items 1, 2, and 3. ■ Print your name and address on the reverse so that we can return the card to you. ■ Attach this card to the back of the mailpiece, or on the front if space permits. Article Addressed to: W-ihester 10.1 LLC 9504•O�shaw Drive Manassaf �Iirginia 20110 A. Signature ❑ Agent X " Ct- ` ` C ❑ Addressee B. Received by (Printed Name) C. Dale of Del' ery D. Is delivery address different from item I? Yes /� If YES, enter delivery address below: ❑ No 3. Service Type ❑ Priority Mail Express® I I I I I III'I I I IIII I I I I I I' ❑ Adult Signature El Registered MaiIT'" I I ❑ Adult Signature Restricted Delivery ❑ Registered Mail Restricted �4Certified Mail® Delivery 9590 9402 3530 7275 9640 25 ❑ Certified Mail Restricted Delivery t Return Receipt fer ❑ Collect on Delivery UaAgwAdoe ❑ Collect on Delivery Restricted Delivery ❑ Signature Confirmation- 7017 0660 0000 713 4 4831 sured Mail sured Mail Restricted Delivery ture Confirmation RestSignricted Delivery ry over $500) PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Return Receipt � � First -Class Mail III Postage & Fees Paid USPS Illuips e 1111 Permit No. G-10 9590 9402 3530 7275 9'40 25 United States • Sender: Please print your name, address, and ZIP+4® in this box• Postal Service Frederick County _s'"• ; Cept. Of Ptapning & I;evelo;ncenl 1.07 N. Kent Street, Suite 202 "` ..._ 'Winchester, VA 22601 CY) C_ )111)1 11'��►►i1���►!!►�firlli'1I�f���fi��li�l��'i'���i11���1�1�1� 1 USPS TRACKING # First -Class Mail y Postage & Fees Paid USPS Permit No. G-10 9590 9402 3530 7275 9640 18 United StatesV_ 5 Sender: Please print your name, address, and ZIP+4® in this box* Postal Service Frederick Countv Dept. Of Planning & Development 107 N. Kent Street, Suite 202 ' Winchester, VA 22601 IIIi�!!!�„!II!!llliill!!i„���1,!l�I�lilil�ill„!j„l,iI11I'!i!I ■ Complete items 1, 2, and 3. A. Sig ature ■ Print your name and address on the reverse ❑ Agent X 1 tjr so that we can return the card to you. -40 ❑ Addressee B• Recei byd Name) C. D to o Delivery ■ Attach this card to the back of the mailpiece, or on the front if space permits. ST, (Y : > VI 3 1. Article Addressed to: Is elivery address different from item Yes If ES, enter delivery address below: p No Winchester 101 LLC Attn: Timothy M. Purnell 9214 Center Street, Ste. 101 Manassas, Virginia 20110 3. Service Type ❑ Priority Mail Express® I I I I I I'll III I I (III III III I I I I II I I ❑ Adult Signature ❑Registered Mai ITM ❑ Adult Signature Restricted Delivery ❑ Registered Mail Restricted 9590 9402 3530 7275 9640 18 Certified Mail® Delivery 13 Certified Mail Restricted Delivery p3Retur Receipt fop ^ • 1- - , • ^. Tranefcr frnm carvirn lahall ❑ Collect on Delivery ❑ Collect on Delivery Restricted Delivery 0 Signature ConfirmationTm 7 017 0660 0000 7134 3803 d Mail ❑ Signature Confirmation d Mail Restricted Delivery Restricted Delivery 500) PS Form 3811, July 2015 PSN 7530-02-000-9053 Domestic Return Receipt n- ru Ln E oZ.�sM, .a ni Postage $ I O .0 � Certified Fee PoHatemre9rk Return Receipt Fee (Endorsement Required) O Restricted Delivery Fee Er- (Endorsement Required) m 0 Total P Mr. Neil K. Malaviya Ln O Sent To High -Up Dairy Mart, Inc. A 4780 Northwestern Pike -------- °'Po& Winchester VA 22603 -"---- cny, sia � Certified Mail Provides: �8�e�aal aooa eunr ooaE �o� sd ■ A mailing receipt ■ A unique identifier for your mailpiece ■ A record of delivery kept by the Postal Service for two years Important Rctninders: ■ Certified Mail may ONLY be combined with First -Class Mail® or Priority Mail®. ■ Cefified Mail is not available for any class of international mail. ■ NO INSURANCE COVERAGE IS PROVIDED with Certified Mail. For valuables, please consider Insured or Registered Mail. ■ For an additional fee, a Return Receipt may be requested to provide proof of delivery. To obtain Return Receipt service, please complete and attach a Return Receipt (PS Form 3811) to the article and add applicable postage to cover the fee. Endorse mailpiece "Return Receipt Requested". To receive a fee waiver for a duplicate return receipt, a USPS® postmark on your Certified Mail receipt is required. ■ For an additional fee, delivery may be restricted to the addressee or addressee's authorized agent. Advise the clerk or mark the mailpiece with the endorsement "Restricted Delivery". ■ If a postmark on the Certified Mail receipt is desired, please present the arti- cle at the post office for postmarking. If a postmark on the Certified Mail receipt is not needed, detach and affix label with postage and mail. IMPORTANT: Save this receipt and present it when making an inquiry. Internet access to delivery information is not available on mail addressed to APOs and FPOs. i Flu COPY COMY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/ 665-6395 CERTIFIED MAIL July 12, 2007 Neil K. Malaviya High -Up Dairy Mart, Inc. 4780 Northwestern Pike Winchester, Virginia 22603 RE: 4780 Northwestern Pike Property Identification Number (PIN): 40-A-66D Zoning District: RA (Rural Areas) Dear Mr. Malaviya: This letter is to inform you, that this office has received complaints of "U-Haul" trucks and trailers for rent on the above -referenced property. This use is a violation of the conditions placed on Conditional Use Permit #13-96. In accordance with Section 165-21 of the Frederick County Zoning Ordinance, the Board of Supervisors may revoke a Conditional Use Permit for any violation of the conditions placed upon the Conditional Use Permit. Conditional Use Permit (CUP # 13-96) is being scheduled for revocation at the earliest public hearing (30 Days), due to violations of the conditions placed on the Conditional Use Permit. I have included a copy of the conditions placed on this Conditional Use Permit. You will receive further notice from this office in regards to the time and location of this public hearing. Please contact me regarding any questions that you may have at (540) 665-5651. Sincerely, Mark R. Cheran Zoning Administrator Enclosure MRC/dlw cc: Gary W. Dove, Gainesboro District Supervisor George J. Kriz and Charles E. Triplett, Gainesboro District Planning Commissioners 107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000 5 December 12, 1996 Painter -Lewis, P.L.C. 302 S..Braddock Street Suite 200 Winchester, VA 22601 FILE COPY COUNTY of FREDERICK Department of Planning and Development 5401665-5651 FAX: 540/ 678-0682 RE: CUP #013-96 OF PAINTER-LEWIS, P.L.C. FOR HOGUE. CREEK COUNTRY MARKET, PIN 940-A-66D 'Dear Mr. Lewis: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting of December 11, 1996. Since you had withdrawn the portion of your application that requested an additional dwelling, no action was takenon that portion of the request. The Board of Supervisors approved the portion of your Conditional Use Permit, #013-96, to allow expansion of the market with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity.. ' s 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution,. and be able to catch blowing debris. .5. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6. The required screening to the; east of the store site may be a dense low screen that would capture any blowing paper or debris that escapes from the market site. 7. The permitted hours of operation of the market will be from 5:00 AM to midnight. 107 North Kent Street - Winchester, Virginia 22601-5000 Hogue Creek Country Market CUP #013-96 Page 2 December 12, 1996 If you have any questions regarding this action, please feel free to call this office. Si erely, W. FVayne Miller Zoning Administrator WWM/cc cc: Commissioner of Revenue . Doug Owens, Hogue Creek Country Market „�� 6 6 FILE COPY COUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/ 678-0682 December 12, 1996 Painter -Lewis, P.L.C. 302 S. Braddock Street Suite 200 Winchester, VA 22601 RE: CUP #013-96 OF PAINTER-LEWIS, P.L.C. FOR HOGUE CREEK COUNTRY MARKET, PIN #40-A-66D Dear Mr. Lewis: This letter is to confirm action taken by the Frederick County Board of Supervisors at their meeting of December 11, 1996. Since you had withdrawn the portion of your application that requested an additional dwelling, no action was taken on that portion of the request. The Board of Supervisors approved the portion of your Conditional Use Permit, 4013-96, to allow expansion of the market with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution, and be able to catch blowing debris. 5. If an external speaker is used for the drive-in window, the volume must be controlled so it is not a noise nuisance to adjoining residences. 6. The required screening to the east of the store site may be a dense low screen that would capture any blowing paper or debris that escapes from the market site. 7. The permitted hours of operation of the market will be from 5:00 AM to midnight. 107 North Kent Street - Winchester, Virginia 22601-5000 I 1 y Hogue Creek Country Market CUP #013-96 Page 2 December 12, 1996 If you have any questions regarding this action, please feel free to call this. office. a cerely, W.r Miller Zoning Administrator WWM/cc cc: Commissioner of Revenue : Doug Owens, Hogue Creek Country Market FILE COPY COUNTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/ 678-0682 September 16, 1996 Painter -Lewis, P.L.C. Consulting Engineers 24 East Piccadilly street Winchester, VA 22601 Re: Hogue Creek Market Conditional Use Permit Reapplication Dear John: The conditional use permit (CUP) application that you submitted to our department for expansion of the Hogue Creek Market requests a two bedroom dwelling, as accessory to the business, also be allowed on the existing lot. Since the existing dwelling was built after the market was completed, it is the Planning Staffs opinion that the existing dwelling is accessory to the business and that an additional dwelling on the property is not permitted. We will process the CUP application but felt it appropriate to advise you that we will support the expansion of the market but not the additional dwelling. Knowing that you have discussed this with several people in this department, I hope you did not get the impression that the additional dwelling would be supported. We did spend a considerable amount of time discussing and researching this issue prior to rendering this decision. The major point of influence is the fact that the existing market was constructed prior to the house located on the property. Enclosed is a receipt for the CUP application and the deposit on the required sign. You will need to have someone pick the sign up from our department. I will be available to answer any questions you may have. Sincerely, W. W ne Miller Zoning Administrator 107 North Kent Street - Winchester, Virginia 22601-5001) ''J COUNTY OF FREDERICK, VIRGINIA FIRE MARSHAL'S OFFICE LAND DEVELOPMENT COMMENTS Control No.0522960189 Date Received 041096 Date Reviewed 052296 Applicant Painter -Lewis, PLC Address 24 E. Piccadilly St. Winchester, Va. 22601 Project Name Hogue Creek Market Phone No. 540-722-9377 Type of ApplicationCUP Current Zoning 1st Due Fire Co. 15 1st Due Rescue Co. 15 Election DistrictGainesboro Tax I.D. No. RECOMMENDATIONS Automatic Sprinkler S,ystemXX Residential Sprinkler System Automatic Fire Alarm SystenK'X Other REQUIREMENTS Emergency Vehicle Access Adequate XX Inadequate Not Identified Fire Lanes Required Yes XX No Comments Roadway/Aisleway Widths Adequate XX Inadequate Not Identified Special Hazards Noted Yes No XX Comments Hydrant Locations Adequate Inadequate Not IdentifiedXX Siamese Location Adequate Inadequate Not Identified XX Additional Comments Attached? Yes No XX Plan Approval Recommended? Yes XX No Signature Title COUNTY of FREDERICK Department of Planning and Development 5401665-5651 FAX: 540/ 678-0682 April 29, 1998 Edward D. Menefee Robin F. Menefee 4722 Northwestern Pike Winchester, VA 22603 RE: Petition for review of Hogue Creek Country Market Site Plan. Dear Mr. & Mrs. Menefee: The Frederick County Board of Zoning Appeals were provided with a copy of your letter regarding the above referenced site plan at their April 21, 1998 meeting. They were also provided with the opinion of their counsel Mr. Robert T. Mitchell, Jr. pertaining to your request, a copy of which is attached for your information. This material was for their information only and no action was taken by the Board of Zoning Appeals as the Board has no jurisdiction to hear and decide appeals relating to site plan applications. Please contact me if you have any questions regarding this letter. Sincerely, �%vriLcc�e�l7`l �. r%d Michael T. Ruddy Planner II att: 107 North Kent Street • Winchester, Virginia 22601-5000 APR-10-98 FRI 04:40 AM HALWAHAN ETC FAX NO. 15624304 ' 14 HALL, MONAHAN, ENGLE, MAHAN & MITCHELL A R.RTNEOS-0 O� PROPESS10NA1 CO—OAATIONS WI' -BUR C. HALL (1892.1972) THOMA3 V. MONAMAN .RCTiacO, SAWA% D. ENGLE O_ LELAND MAHAN PnsrnT T. MiTr,.FLL. JR. ..JAMei A. KL=NKAR LZE E. HERLiK ATTORNCYS AT LAW 3 EAST -ARKET STAECT LEESSur00, VIRGIN1A TCL=P-ONE 703•777-fOSO TELECCP,ER 703.7Tr4112 April 10, 1998 Manuel Sempeles, Chairman Frederick County Board of Zoning Appeals 107 N. Kent Street Winchester, VA 22601 RE: Conditional Use Permit No. 013-96 Menefee "Petition for Review" Dear Manuel: 0 CA^.T OOSCAwEN STfNCCT wINCw[SrER. WAIMNIA TEL�P�Cnd 3+o-ee.•J200 �E"LCGGn Ca 6+C•6e2•�30• >LEA3C aC-IT -0. P. O. Box 848 WINCHESTER, VIRGINIA 22604.0848 At the request of Mike Ruddy, I have reviewed the letter dated March 20, 1998 from Edward D. Menefee and Robin F. Menefee, purporting to submit a "Petition for Review" to the Board of Zoning Appeals to appeal the approval of a site plan for the Hogue Creek Country Market. Pursuant to the provision of § 15.2-2258, Code of Virginia, the provisions of § 15.2-2259, including the provisions governing the appeals related to subdivision applications, apply to appeals relating to site plan applications. § 15.2-2259 provides that appeals shall be to the Circuit Court, and shall be filed within sixty (60) days of the action taken on the application. It is my opinion, therefore, that the Board of Zoning Appeals has no jurisdiction to hear and decide appeals relating to site plan applications, and that any such appeals must be to the Circuit Court in accordance with stattrte. If there is any further questions concerning the foregoing, please contact me. yours, T. Mitchell, Jr. RTM/Iww COMMONWEALTH of VIRGINIA DEPARTMENT OF TRANSPORTATION DAVID R. GEHR EDINBURG RESIDENCY JERRYA COPP COMMISSIONER 14031 OLD VALLEY PIKE P.O. BOX 278 RESOENT ENGINEER 1'ELE (540) 964-5600 EDINBURG, VA 2282"278 FAX (W) 9B4S607 April 28,1998 Mr. Eric Lawrence, Zoning Admin. Ref: Hogue Creek Market County of Frederick Route 50 107 North Kent Street Frederick County Winchester, VA 22601-5000 Dear MrQe ce: I am writing in response to Robin and Ed Menefee's letter of 10/28/97 which you forwarded to us by letter dated 04/09/98. We have contacted our District Traffic Engineering Office for input. As a result of these discussions, it was determined no further action should be taken at this time. Please advise Mr. & Mrs. Menefee of VDOT's present position. If we can be of further assistance, do not hesitate to call. SAM/ rf xc: Mr. J. B. Diamond Mr. G. T. Hoffman Mr. Kris Tierney Sincerely, V/ Steven A. Melnikoff Transportation Engineer WE KEEP VIRGINIA MOVING COMMONWEALTH of VIRGINIA DEPARTMENT OF TRANSPORTATION DAVID R. GEHR EDINBURG RESIDENCY COMMISSIONER 14031 OLD VALLEY PIKE P.O. BOX 278 EDINBURG, VA 22824-0278 April 28,1998 Mr. Eric Lawrence, Zoning Admin. County of Frederick 107 North Kent Street Winchester, VA 22601-5000 Dear MrtAw-'r-e--nc e: JERRY A COPP RESIDENT ENGINEER TELE(540)984-5i600 FAX (540)9845607 Ref: Hogue Creek Market Route 50 Frederick County I am writing in response to Robin and Ed Menefee's letter of 10/28/97 which you forwarded to us by letter dated 04/ 09/ 98. We have contacted our District Traffic Engineering Office for input. As a result of these discussions, it was determined no further action should be taken at this time. Please advise Mr. & Mrs. Menefee of VDOT's present position. If we can be of further assistance, do not hesitate to call. SAM/ rf xc: Mr. J. B. Diamond Mr. G. T. Hoffman Mr. Kris Tierney Sincerely, Steven A. Melnikoff Transportation Engineer APR 1998 PT RE DEcet VEp OF SNItio AND DEVELOPMENt Z� WE KEEP VIRGINIA MOVING COMMONWEALTH of VIRGINIA DEPARTMENT OF TRANSPORTATION DAVID R. GEHR EDINBURG RESIDENCY COMMISSIONER 14031 OLD VALLEY PIKE P.O. BOX 278 EDINBURG, VA 22824-0278 April 28,1998 Mr. Eric Lawrence, Zoning Admin. County of Frederick 107 North Kent Street Winchester, VA 22601-5000 Dear Mr`.�'-aw� nce: JERRY A. COPP RESIDENT ENGINEER TELE(540)984-5600 FAX (540) 9845607 GvP Ref: Hogue Creek Market Route 50 Frederick County I am writing in response to Robin and Ed Menefee's letter of 10/28/97 which you forwarded to us by letter dated 04/09/98. We have contacted our District Traffic Engineering Office for input. As a result of these discussions, it was determined no further action should be taken at this time. Please advise Mr. & Mrs. Menefee of VDOT's present position. If we can be of further assistance, do not hesitate to call. SAM/ rf xc: Mr. J. B. Diamond Mr. G. T. Hoffman / Mr. Kris Tierney Y Sincerely, Steven A. Melnikoff Transportation Engineer 1 LC �\j WE KEEP VIRGINIA MOVING 9 COUNTY of FREDERICK Department of Planning and Development 5401665-5651 FAX: 540/678-0682 Virginia Department of Transportation 14031 Old Valley Pike Edinburg, Virginia 22824-0278 RE: Hogue Creek Market Dear Steve - Attached is a letter from Robin and Ed Menefee. The Menefee's are concerned with a number of issues related to the Hogue Creek Country Market on Route 50 West. I have addressed most of their concerns, but believe that VDOT is in the best position to address items C and D, on page 5 and 6 of their letter. Please review their concerns and provide a letter addressing VDOT's actions, if any are warranted. This letter could either be addressed directly to the Menefee's, or to me and I'll forwarded it. In either case, I would like to receive a copy of your response for our office files. Thank you for you attention to this matter. Sincerely, c� Eric Lawrence Zoning Administrator Attachment 107 North Kent Street • Winchester, Virginia 22601-5000 • • Russell A. Fowler J. David Griffin Beth M. Coyne Timothy S. Coyne Bradley W. Finch FOWLER, GRIFFIN, COYNE & COYNE, P.C. Attorneys and Counselors at Law 29 North Braddock Street Winchester, Virginia 22601 Telephone (540) 667-6400 Facsimile (540) 722-4828 E-Mail fgcc4visuallink.com February 27, 1998 Eric R. Lawrence, Zoning Administrator County of Frederick Department of Planning and Development 107 North Kent Street Winchester, Virginia 22601-5000 RE: Hogue Creek Country Market Additions CUP #13-96 and Site Plan #011-97 Dear Mr. Lawrence: Of Counsel David J. Andre Please Reply To: Post Office Box 403 Winchester, Virginia 22604 This will acknowledge receipt of a copy of your March 6, 1998 letter to Mr. & Mrs. Owens. This is also to advise that the 8 foot high board -on -board fence is now constructed well in advance of the March 31, 1998, compromised deadline set forth in your letter. I had previously advised that the collars/shields had been installed on the canopy lamps. Mr. & Mrs. Owens continue in their efforts to meet and understand your requirements. Mr. & Mrs. Owens will let you know on or before April 15, 1998, that the required Evergreen plantings have begin completed. With kind regards, I am Very t.ru yo , sell A. Fowler RAF:kbj cc: Mr. & Mrs. Douglas Owens Richard Shickle, Gainesboro District Supervisor ;c(c, o � RECEIVED `cam OEPT. OF PLAN • Russell A. Fowler J. David Griffin Beth M. Coyne Timothy S. Coyne Bradley W. Finch FOWLER, GRIFFIN, COYNE & COYNE, P.C. Attorneys and Counselors at Law 29 North Braddock Street Winchester, Virginia 22601 Telephone (540) 667-6400 Facsimile (540) 722-4828 E-Mail fgccC&visuallink.com February 27, 1998 Eric R. Lawrence, Zoning Administrator County of Frederick Department of Planning and Development 107 North Kent Street Winchester, Virginia 22601-5000 RE: Hogue Creek Country Market Additions Dear Mr. Lawrence: Of Counsel David J. Andre Please Reply To: Post Office Box 403 Winchester, Virginia 22604 Mr. & Mrs. Owens have provided me with a copy of your letter of February 6, 1998, which accompanied two copies of the approved site plan. We note that the privacy fence which was formerly shown as 184' long has been extended to 300' in length on the approved site plan. Mr. & Mrs. Owens were not previously aware that a substantial addition to the fence would be required, but they intend to comply fully in installing the 300' privacy fence. They appreciate your authorization to install the fence in a straight line generally parallel to the eastern boundary of their property. They are now in the process of obtaining bids and scheduling the construction of the fence. They will keep you informed of the progress and will make every reasonable effort to have ti.e fence in place by your proposed deadline of April 15, 1998. You certainly will be promptly notified of any circumstances beyond the control of Mr. & Mrs. Owens which might require additional time, but at present, Mr. & Mrs. Owens believe they will be able to meet that deadline. At our meeting on January 23, 1998, we discussed your finding that the new canopy lights at Hogue Creek Country Market violate the glare requirements of the Frederick County Zoning Ordinance. Your letter of January 28, 1998, requires that efforts to resolve the violation be initiated by the end of February, 1998, and the violation be resolved by mid -March, 1998. I believe Mr. Owens has already informed you that, notwithstanding the costs, lamp collars or shields have been installed on all of the canopy lights so as to eliminate the violation. • • Eric R. Lawrence, February 27, 1998 Page Two Zoning Administrator Mr. & Mrs. Owens will continue attempting to satisfy all requirements. RAF:kbj to cooperate fully in y7yo rs ellA. Fowler cc: Mr. & Mrs. Douglas L. Owens Richard Shickle, Gainesboro District Supervisor 4780 Northwestern Pike Winchester, Virginia 22603 December 17, 1997 Eric R. Lawrence, Planner II Frederick County Department of Planning & Development 107 North Kent Street Winchester, Virginia 22601-5000 RE: Hogue Creek Country Market Additions Site Plan No. 011-97: Conditional Use Permit No. 13-96 Dear Mr. Lawrence: We have received your letter of December 4, 1997, and have talked to you by telephone since receiving that letter. As you know, we clarified during our telephone conversation, that we have not reached any agreement regarding what alternatives are available or which of those alternatives we may elect to follow with respect to the issues addressed in your letter. We are still in the process of assembling information and trying to understand the nature of the complaints which you say have been lodged against Hogue Creek Country Market. We anticipate having the information needed shortly after the first of the year. At that time, we would appreciate the opportunity to meet with you again to determine the fairest, most reasonable way to resolve your concerns without adversely affecting the operation of our business. As you know, we have tried to do our very best to satisfy the County's requirements. In fact, the site plan which you refer to in your letter had been approved by your office. We will continue our good faith efforts to quickly and amicably resolve this matter. We note from your letter of December 4, 1997, that Mr. Shickle has taken an interest in this matter. Therefore, we are forwarding a copy of this letter to Mr. Shickle and will copy future correspondence to him so as to provide him the opportunity to be fully informed regarding this matter. Very truly yours, Douglas L. Owens and Penny Owens cc: Mr. Richard Shickle . ti 'r- 1 Hogue Creek Country Market Site Plan 4011-97 Site Plan Actions December 11, 1996 The Frederick County Board of Supervisors approves Conditional Use Permit application #013-96 for the Hogue Creek Country Market. Seven conditions are applied, ranging from hours of operation to the consideration of buffer and screening to protect adjoining properties. March 24, 1997 Application and preliminary site plan are submitted to this office. The review fee is not received until March 31, 1997. April 3, 1997 Preliminary site plan review. 12 issues identified. Letter mailed to engineer. Staff requested verification that all health permits are valid. April 23, 1997 Revised preliminary site plan, date April 18, 1997, is received by staff Most previously identified issues have been addressed. Health department issues have been resolved, as per owner. Staff requests verification via letter from Health officials. April 25, 1997 Preliminary site plan review #2. 4 issues identified. Letter mailed to engineer. May 16, 1997 Site plan administratively approved. This was for building additions that totaled 5,500 square feet (9,120 square feet building), parking, and buffer and screening. July 16, 1997 Fax received from John Lewis, Project Engineer, requesting to: modify fuel canopy size; improve diesel island; and relocate existing canopy to diesel island. Proposed size concurs with approved CUP. Staff responds favorably to request. Requests updated illustration with seal identifying improvements. 2 August 5, 1997 Fax received illustrating proposed modifications to fuel and diesel island canopies. Beginning of October, 1997 Ed and Robin Menefee express an interest in the Hogue Creek Country Market. State that they feel that site plan does not adequately address the approved CUP and the concerns voiced during the CUP hearings. Feel that the site plan is not in conformance to the CUP. October 28, 1997 Robin and Ed Menefee meet with Kris Tierney and Eric Lawrence to discuss their concerns with the Hogue Creek Country Market site plan. Mr. Mark Stivers, Attorney for the Menefees, is present. The Menefees expressed their concern that the site plans does not comply with the approved CUP. Provide a letter, dated October 28, 1997, outlining their concerns and requesting a response to each issue. October 30, 1997 Staff informs Mr. Owens via letter that site plan #011-97 is invalid. It has been determined that the site plan permits more building square footage than permitted by the CUP. November 3, 1997 Mr. Owens called the Planning Office to acknowledge his receipt of letter dated October 30, 1997. Mr. Owens thought that his approved CUP and Site Plan were in agreement. Said that John Lewis would contact this office to discuss and resolve conflict. November 13, 1997 Staff responds to the Menefee letter dated October 28, 1997. Issues that concern outside review agencies, i.e., VDOT and Health agencies, have been forwarded for their responses. December 1, 1997 Staff representative, Eric Lawrence, meets with the Menefees at their residence to observe outdoor light concern. Staff confirms that the lighting is excessive; in particular, glare is being emitted from the new fuel island canopy. Will work with Hogue Creek Country Market to reduce glare on adjoining properties. December 2, 1997 Staff meets with John Lewis, Project Engineer, and Doug Owens to discuss the County's concerns. Issues discussed include: outdoor lighting; site plan and CUP conformance; trucks traveling around the building, disturbance of ., .. _f. • existing vegetation; and buffer and screening. December 4, 1997 Staff meets on site with Mr. and Mrs. Owens to discuss issues. Staff expresses interest in implementing buffer and screening to mitigate any possible negative impacts generated by truck traffic. All parties agree as to the necessary actions. �9 Staff mails letter summarizing discussions of December 2 and 4. Ice � ` S//�F��b4+FJi (�reF- t.IfiT �tbHT S�!(�L�iJrLGYLa.i r---/ -4— w1.�� December 10, 1997 Mark Stivers, the Menefee's Attorney, contacts this office to review actions since last meeting. Staff bring Mr. Stivers up-to-date of discussions with the Menefee's and the Owens. Stivers expresses his concern that insufficient efforts and actions have been achieved. Eludes to possible legal actions. December 11, 1997 Mr. Owens contacted this office to voice his disapproval of issues in the October 30, 1997 letter and the December 4, 1997. Indicates that the County should provide legal argument that site plan is invalid. Mr. Owens said that he would contact this office within the week to schedule another meeting time to further discuss situation. LV A U:\ERIC\COMMON\SITEPLAN\HOGUECRE.HIS 3 �® . a �R COMMONWEALTH of VIRGINIA RANDOLPH L. GORDON, M.D., M.P.H. Department of Health ROCKBRIDGE SQUARE SHOPPING CENTER COMMISSIONER Office of Water Pro rams 131 WALKER STREET 9 LEXINGTON, VIRGINIA 24450-2431 Environmental Engineering Field Office PHONE: (540) 463-7136 FAX: (540) 463-3892 9 December 1997 SUBJECT: Frederick County Sewerage - NPDES Permits (Hogue Creek Country Market) Mr. Eric R. Lawrence County of Frederick Department of Planning and Development 107 North Kent Street Winchester, Virginia 22601-5000 Dear Mr. Lawrence: This office has reviewed the comments concerning the Hogue Creek Country Market wastewater treatment works forwarded in your 10 November 1997 letter. Based on this review, the following comments are offered: Current criteria utilized in evaluating wastewater discharges to intermittent streams or dry ditches stipulate that the discharge must be located entirely within the owner's property or within a recorded easement or a combination of the two, and extend from 250 to 500 feet below the point of discharge depending on treatment process. This criteria applies to new discharges of less than 1000 gallons per day and has only been in effect since July 1992. Commercial discharges, similar to Hogue Creek Country Market, in existence prior to July 1992 did not have minimum property setback distances although it was customary to obtain easements from downstream property owners for flows crossing their property. In that the Hogue Creek Country Market permit was originally issued in 1987 and processed through the Frederick County Health Department, they may have copies of any easements or conditions imposed at the time of the original permit issuance. 2. Discharges should be.to a defined stream channel or drainway which is typically examined during the permitting process to determine acceptability for the proposed flow. Channel and drainway maintenance, however, is the property owner's responsibility. The channel or drainway should be sufficiently sloped, usually between 2% and 50%, to carry flow away from the discharge point and prevent ponding. 3. Future expansion of the Hogue Creek Country Market would require a complete re- evaluation of their discharge permit and treatment system. This re-evaluation would be based on the fact that projected flows would exceed 1000 gallons per day, would change effluent discharge limits, and may require relocation of the discharge point to a year-round receiving stream. Any change in discharge limits would require substantial upgrading of the existing treatment, plant's capacity and treatment capability. Permit monitonn requirements would increase significantly, going from earl to monthly. q 9 Y�9 9 yearly � YJ 8 _1v�op,, Mr. Eric Lawrence 2 9 December 1997 SUBJECT: Frederick County Sewerage - NPDES Permits (Hogue Creek Country Market) Hopefully, the above adequately addresses the concerns posed. If not, do not hesitate to contact me. Very truly yogrs, Harold T. Eberly District Engineer HTE/bt/97120904.doc cc Frederick County Health Department VDH - Richmond Central FILECOSY COUNTY of FREDERICK Department of Planning and Development 5401665-5651 FAX: 540/ 678-0682 December 4, 1997 Mr. Doug Owens 4780 Northwestern Pike Winchester, Virginia 22603 RE: Hogue Creek Country Market Additions Site Plan #011-97; CUP #13-96 Dear Mr. Owens: I appreciated the opportunity to meet with you and John Lewis on December 2, 1997, to discuss the Hogue Creek'Country Market's site plan. While a number of issues were discussed, I would like to reiterate five significant issues that will need your immediate attention. These five issues are discussed in more detail below. Invalid Site Plan. As you are aware, it has been determined that the Hogue Creek Country Market Site Plan (Site Plan #011-97) does not comply with the issued Conditional Use Permit (CUP #013-96). This discrepancy invalidates Site Plan #011-97. During our discussion, we agreed upon two alternatives to achieve an approved site plan. The first involved revising the site plan to more accurately reflect the approved CUP and, in particular, the conceptual site plan submitted with the CUP. This would require the removal of two building additions (totaling 1,550 square feet) to the eastern side of the building. The only building additions that should be illustrated on the revised site plan will be on the building's western side and total 4,080 square feet. We also agreed that the two fuel island canopies and the business sign should be shown in their proper configuration. The second alternative involved revising the CUP. This would involve the submission of a new Conditional Use Permit application, and the application's approval by the Board of Supervisors. 2. Building Permits. It is important that you be aware that this department will not approve any building permits associated with this market until a site plan has been approved. 107 North Kent Street - Winchester, Virginia 22601-5000 0 1 0 Hogue Creek Country Market Additions Page 2 December 4, 1997 Therefore, it is imperative that attention be given to this matter so that you may maintain your business's expansion time table. 3. Outdoor Lighting. This department has received complaints regarding the outdoor lighting, in particular the new canopy's lighting. The Zoning Ordinance states that "Outdoor lighting shall be arranged to deflect glare away from adjoining properties and public streets. Sources of light on a lot shall be hooded or controlled to prevent glare beyond the lot line." I visited the site on Monday, December 1, 1997, at 7:30 p.m. and confirmed the validity of the lighting complaints. During this visit, I observed that glare from this site could be seen well into and across the entire yards of adjoining properties. This lighting also appears to be a traffic hazard as it has the ability to `blind' drivers as they approach the facility. Most of the source of the excessive lighting is being emitted from the new canopy's lamps. Based on my observation, lighting on this property is in violation of Chapter 165 (Zoning Ordinance), Section 35.A of the Frederick County Code. It is imperative that this lighting violation be resolved in a timely manner. Additionally, please note that the County will not approve a site plans for the site until the lighting violation is resolved. 4. Gravel Driveway. The existing gravel drive around the rear of the building continues to produce concern for this department. It appears that the drive is being utilized by vehicles (trucks and passenger cars, alike) to gain access to the diesel pumps. As the use of this gravel surface continues, excessive dust is produced. Such dust is a nuisance to the adjoining properties and is a violation of the Zoning Ordinance. Hard surfacing this driveway, as illustrated on the submitted site plan, and as required by the Zoning Ordinance, would alleviate the dust; the hard surfacing would also bring the driveway into compliance with the Zoning Ordinance. As a minimum effort and a temporary solution, the County would expect that the driveway be improved to a double prime -and -seal surface. When a site plan is approved, and building construction commences, you will be required to hard surface the driveway and install parking that complies with the business standards of the Zoning Ordinance. 5. Landscape Buffer. During the Conditional Use Permit hearings for your CUP (CUP #013- 96), there was discussion concerning requirements to buffer your business from the adjoining Hogue Creek Country Market Additions Page 3 December 4, 1997 properties; the Zoning Ordinance also requires such a buffer. It was mentioned that a landscape buffer would be required and, in fact, the CUP was approved with the condition that a buffer be considered along property lines. As complaints have been received by this department, it is important to now address this landscape buffer requirement. As we discussed, because vehicles use the driveway around the rear of the building, the buffer should be implemented. This buffer will not only reduce the visual effects of the paved surface but will also reduce the ability for debris to leave your property, as mentioned during the CUP hearings. Each of the above issues should be promptly addressed. Please note that the lighting issue should be addressed immediately as a potential traffic hazard exists. It is also important that each of these issues be addressed as soon as possible. Please keep me informed as to your progress in satisfying each of the issues. And again, thank you for meeting with me to discuss the Hogue Creek Country Market. Sincerely, Eric R. Lawrence Planner H ERL/cc cc: Richard Shickle, Gainesboro District Supervisor t 10, Gt `�T�+�! � �ti c�/^CGt% 6Va h S RA-0' -70 h U:\ERICICOMMONMS rrEPLAN\HOGUECRE. VI2 "C FILE COPY �1 COUNTY of FREDERICK Department of Planning and Development 540/665-5651 7 A FAY: 540/678-0682 November 12, 1997 Ed and Robin Menefee 4722 Northwestern Pike Winchester, Virginia 22603 RE: Hogue Creek Country Market Dear Mr. and Mrs. Menefee: Thank you for meeting with Kris Tierney and me on October 29, 1997 to discuss your concerns of the Hogue Creek Country Market expansion plan. I believe this discussion was quite informative and productive; we now have a much clearer understanding of your concerns and will make every attempt to address and resolve them. I hope that our discussions, and now this letter, will assist in clarifying your concerns. In a letter dated October 28, 1997 addressed to Kris Tierney, delivered to this office on October 29, 1997, you presented a number of issues concerning the Hogue Creek Market. Many of your concerns were in reference to the approved CUP (CUP #013-96) and the approved site plan (SP #011-97). A number of your concerns referred to- your belief of the County's insufficient effort to inform the population of details about the market expansion. It is important to be aware that the CUP approval process involves public participation; public hearings are held to encourage public comments. Unless a particular issue of concern is raised, the planning department staff, the Planning Commission, and the Board of Supervisors may not view a particular aspect of the proposal as a potential problem. Below are the issues as listed in your October 28th letter, followed by a response. I hope you will find each response to adequately resolve your stated concern. The site plan with final approval from the Department of Planning approved 1, 410 square feet beyond what was approved by the Board of Supervisors. This was a 30% increase over the footage approved in the CUP. Response: Based on the information provided in the CUP application, staff agrees that the site plan illustrated a greater increase in building size than previously approved. This was an error on behalf of staff, and efforts have been made to resolve the square footage discrepancy. Such efforts include the notification of the Hogue Creek Country Market owner, and the site plan engineer, that the previously approved site plan for this market is invalid. Two options are available to the market owner to rectify this situation. First, he could revise the site plan to allow for a building addition more in keeping with the 4,080 +/- square feet, as approved by the CUP. 107 North Kent Street • Winchester. Virginia 22601-5000 Ed and Robin Menefee RE: Hogue Creek Country Market Page 2 November 10, 1997 Second, he could make application for a new CUP allowing for the additional square footage, and gain CUP approval by the Board of Supervisors. 2. Recently, Hogue Creek installed new automobile fuel pumps that expanded the sale of petroleum. The installation resulted in doubling the capacity to sell fuel by enabling twice as many cars to fuel at the same time. No word was ever said to us of any changes to the fuel service. How can expansion of capacity not require a CUP? Isn't building more square footage an expansion of capacity for a retail store? How was this not disclosed? The application disclosed it to the Health Department in a letter dated 7115196. Response: Based on the information provided in the CUP application, this facility is a country store with petroleum sales. The CUP application also contained a representation of how the site plan may be designed. This plan provides an illustration of four fuel islands and a canopy. By providing the text and the representative site plan, one is led to believe that the existing fuel service would be expanded. As no concern was voiced during the public meeting review of the CUP, the expansion of fuel services did not lead to discussions. Also, it is important to remember that fuel service already existed on the site, before the most recent CUP was approved. The mere expansion of sale volume would not, in and of itself, trigger the requirement for a CUP or public hearing process. 3. Hogue Creek also recently installed new diesel pumps and a 10, 000-gallon underground storage tank (UST) to replace a small above ground tank. This installation greatly increased diesel fuel capacity and resulted in greatly increasing the sale of diesel fuel, which will likely, expand further once tractor -trailer drivers are aware of the service. Again, no word was ever mentioned to its of changing the fuel service; however, the Department of Planning approved this tank via correspondence from the applicant on 7116197. How? On what authority? Response: As stated, diesel fuel sales already exist at the market. There was no concern indicated about the fueUdiesel service during the public meetings, therefore discussion did not ensue. The relocation of the diesel pumps was necessary to provide the drive-thru service portion of the food service, as requested in the CUP application. Placement of fuel service islands is addressed by the zoning ordinance, and the diesel pumps were located in conformance to this ordinance requirement. The installation of underground storage tanks does not require zoning approval. Therefore, the conversion of above -ground storage tanks to underground storage tanks does not require action on behalf of this department or the Board of Supervisors. 4. On the site plan the Department of Planning approved a 2,500 square foot canopy with 16 very high wattage lights The canopy has been installed over the new automobile pumps in front of the store and the original canopy has been relocated over the new diesel pumps at the front west 0 Ed and Robin Menefee RE: Hogue Creek Country Market Page 3 November 10, 1997 side of the property. The new canopy illuminates light throughout our front yard and extends over 425 feet and into the next property. In addition, the light creates shadows as far into our yard as 350 feet. Our house is approximately 225 feet from the lights. Response: This department did approve a 100' by 25' canopy to be placed above the four fuel islands, as illustrated on the representative site plan included in the CUP application. While such canopies generally contain lighting, the department does not necessarily approve lighting, and did not address lighting for this canopy. The Zoning Ordinance states that "outdoor lighting be arranged to deflect glare away from adjoining properties and public streets". Staff has worked with business establishments in the past to reduce this light spillage onto adjoining properties, and will do the same on this site. The 16-light canopy lighting is in addition to the 6 dimmer lights that exist with the original canopy for a total of 22 lights. A driver has commented to us that the lights are so bright they are blinding to drivers that look into them. Response: Staff will work with the market to redirect and reduce this light glare. No word was mentioned of constructing a larger canopy. Haw was this not disclosed? We have discovered that it was disclosed on a site plan to the Health Department on a 7115196 letter from the applicant. How could such a light nuisance be allowed on the site plan without consideration to neighboring properties? Response: Again, the canopy was included in the representative site plan and lighting concerns will be addressed. Further, we were left with the impression the maximum size of a sign is 100 square feet. This canopy advertises fiiel and is much larger and brighter then the previous canopy which still exists. How does this canopy conform to the ordinance? Response: You are accurate about the maximum size for a business sign. As for the canopy, current county sign regulations do not address a canopy as a business sign. 5. A "small" drive-thru to service the proposed restaurant was described to us at the public hearing and shown on the application drawing we received from the Dept. of Planning. However, the site plan required 2-way traffic around the store plus the drive-thru lane, resulting in 3 lanes of traffic behind the building. This 2-way traffic is used by tractor -trailers fireling at the newly installed diesel pumps and increases traffic closer to our home (approximately 150 feet away). Ed and Robin Menefee RE: Hogue Creek Country Market Page 4 November 10, 1997 Response: It is correct that the drive-thru was shown on the representative site plan. The size of the drive-thru lanes and adjacent access aisles were not discussed in detail during the CUP process, nor were concerns voiced. The travel lanes providing for circulation around the rear of the facility was illustrated on the representative site plan. These lanes are designed for parking space access and a drive-thru lane, and comply with the required zoning ordinance minimum width of 34 feet (22-foot driving aisle, 12-foot drive-thru lane). Before presentation to the Planning Commission, is the application reviewed by the Dept. of Planning or the applicant to ensure adequate space exists to accommodate an expansion? Would one not expect the conceptual plan to follow ordinances and indicate multiple lanes of traffic? Response: The CUP application is reviewed by staff, the site plan is not reviewed until submitted, normally this occurs after the CUP is approved. The conceptual plan, as submitted with the CUP application, is for generalization purposes and presented no obvious ordinance conflicts. To staffs knowledge, no issue was raised with regard to the number of lanes of traffic. Why was this not disclosed? Traffic behind the building is a critical issue for safety and in living by a business with regards to increased noise pollution, fuel fume pollution and lighting pollution. Response: This is not a question of information not being disclosed. Traffic flow around the market, as a problem, was not brought to the attention of the staff, the Commission, nor the Board. Therefore, it was not considered an issue that needed to be addressed during the CUP review nor the site plan review. 6. During the Planning Commission Hearing and in conversation with our supervisor we requested the operating hours be limited to the current hours. The original CUP in 1987 did not define hours. Current hours are Sun. -Wed. 5: 00 a.m.-10: 00 p.m., and Thurs.-Sat. 5: 00 am.-12: 00 p.m. Out of the blue, the approved December 1996 CUP establishes hours as 5: 00 a.m - 12:00 p.m. with no limitation to the day of the week. How did the hours change This sign is much brighter and larger than the prior one and is a nuisance. Response: At the public hearing, the applicant expressed his intention of maintaining the same hours of operation, as you have indicated above. He also stated that he had no intention of being open 24 hours a day. Staff will look into this issue. 7. The plan presented at the hearing indicated 13 parking spaces on the east side of the property Ed and Robin Menefee RE: Hogue Creek Country Market Page 5 November 10, 1997 line (adjacent to our property) and 17 spaces on the west side (store owner's side). The approved site plan has 29 spaces on our side and 17 spaces on the west side. The result of this change is the 29 spaces now wrap down the property line and around the backside of the building. Therefore, there will be more car traffic added to that of the drive-thru creating more noise near our house (150 feet away). The noise will be increased road noise, starting of car engines, and doors slamming. Response: The increase in parking spaces is required based on zoning ordinance requirements; the number of required parking spaces is calculated based on building square footage. This number of parking spaces will be revisited once the permitted building square footage is resolved. A reduction in square footage will reduce the number of required parking spaces. But, it is important to be reminded that the representative site plan is for generalization purposes only; the actual required number of parking spaces was not addressed nor reviewed based on the representative site plan. 8. To accommodate the foot traffic in the back, it appears a rear entrance under a covered porch has been approved by the Site Plan. We were not advised of any rear entrance or code requiring this. As a result, this entrance will encourage more traffic in the back creating more noise and light pollution. Adding another entry into the building for egress is a safety concern to me as the store was robbed less than two years ago. Response: Following conversations with representatives from the engineering firm, the rear of the building is not intended to be utilized as a customer entrance into the market. The access is intended for employees and deliveries only. Here again, in the absence of any public objections, the Planning Department, Commission, and the Board would not customarily be concerned with where customers are to enter a business establishment. 9. We understood from our supervisor, Richard Shickle, that the border between our property line with Hogue Creek would be low dense landscaping in the front, and a taller dense one along the side and back. The site plan approved an 8-fool high fence that is 18 feet long. To "hide " this fence, the site plan has 9 white pines to be planted. The border was a major concern to us and I had even asked how the border would be approved and if adjoining property owners could be apart of the approval process I was advised that the Department of Planning would handle this appropriately with the site plan. Response: During the Planning Commission and Board of Supervisors meetings, there was indeed voiced concern regarding the protection of neighboring properties from debris, lighting, and noise. Staff was directed to address these concerns during site plan review with consideration towards a possible buffer. Staff elected to implement a comparable buffer/screen Ed and Robin Menefee RE: Hogue Creek Country Market Page 6 November 10, 1997 that is used throughout the county on other business developments: a board -on -board fence and periodic evergreen plantings continuing the length of the parking area. This fence will significantly reduce the impact from debris, lighting, and noise. Additional plantings located between the fence and the property line reduce the visual impact of the fence. It is our understanding, based on our meeting on October 29, 1997, that you now feel this is an adequate solution. 10. The CUP application did not note any major change to garbage location. The site plan was approved with the addition of a 20' x 10' Dumpsite. Although this may be required by code, how will rodents be kept out and the smell contained? When will we hear the dump truck picking up trash? Response: The County requires that dumpster sites be enclosed with a board -on -board enclosure and have a latched gate. It is also required that the dumpster not be placed in the front yard of a site. The County does not regulate the hours that trash removal may occur. Additional issues not relating to the signed Site Plan but still greatly affect us include: A. Hogue Creek's wastewater dumps into our front yard. This was discovered earlier this month when intermittent streams on our property dried up, but the front yard along Route 50 remained a wet swampy area with still wastewater. Investigation by my father-in-law discovered a pipe approximately 5 feet from the mutual property line that flows into our yard. Although the sewer was not noted on the CUP application, the Site Plan indicates the sewer field drain is within feet of the property line. Current wastewater flows are estimated at 353 gallons per day with an existing store size of 3,600 square feet. This waste flow is expected to increase to max. 950 gallons per day once the storeirestaurant is in operation. How is the water allowed to flow onto our property? How is it metered? Where does the Department of Planning or the Board of Supervisors think the wastewater will go once the volume triples? Isn't drainage a concern when approving a CUP? Response: This concern falls under the jurisdiction of the Department of Health Office of Water Programs. It has been forwarded to these agencies for their consideration. When we receive their comments, it will be forwarded to your attention. B. Upon inquiry with the State Health Department, we discovered the department had approved the CUP application based on the information provided in July 1996. The Health Department Ed and Robin Menefee RE: Hogue Creek Country Market Page 7 November 10, 1997 never received the revised site plan showing the increased 30% square footage on the retail space as approved in comment # 1 on the first page of this letter. Four of the five reviewing agencies were submitted the revised site plan with the 1,440 additional store footage. The applicant indicated this to the Planning Commission on a letter dated 3/24197. The Health Department was the only review agency that did not submit updated comments to the site plan, but instead documentation indicates the Dept. of Planning accepted comments from 8121196. The Health Department letter of 8121196 indicates the wastewater treatment system is at 95% capacity based on the information in the CUP Application. The applicant's engineer defined the waste levels for a 7,680 square foot store/restaurant and a 1,100 square foot additional dwelling (which was dropped from the application). The Health Department in Lexington, VA advised my husband that when a system exceeds 95% capacity, upgrades to the system and a different permit are needed However, as noted above, once the Site Plan increased the square footage to a 9,120 square foot retail store/restaurant, how did this effect the 95% wasteflow treatment capacity? Why were updated comments not required from the Health Department? Response: The increased square footage, as previously stated, does violate the approved CUP. Once the square footage concern is addressed, this issue may be resolved. Nevertheless, we have forwarded these concerns to the Department of Health Office of Water Programs for their consideration. When we receive their comments, it will be forwarded to your attention. C. Last week, my husband discussed with VDOT our safety (or lack oj) in turning into our driveway from the westbound deceleration lane, in addition to the overall safety of the intersection with the increased traffic. Most cars are not expecting us to turn before the store and it may be a matter of time before we are hit from the rear. This was stated in our concerns during the Planning Commission Hearing. VDOT advised the statistics are not high enough to require any changes. The information given to VDOT by the applicant indicates that the maximum number of cars turning from the site during a peak traffic hour is 55 vehicles. This calculation is the number of cars after the 4, 080' retail storeXrestaurant is added with a drive-thru service. We disclosed the actual traffic count is drastically above the national statistical calculation used in the application. The actual traffic counts that we conducted from 4: 00 p. m. to 5: 00 p. m. on Friday 10124 was 132 cars turning into the store in a one -hour peak traffic period. This is before construction of the CUP application (but after installation of fuel tanks, etc.) Neither count of course considers the cars exiting the store or those making a U-turn in the same intersection. During Ed and Robin Menefee RE: Hogue Creek Country Market Page 8 November 10, 1997 six minutes in the hour noted above, from 4: 00 p. m. and 4: 06 p. m., there were 23 cars entering the store. Our actual traffic counts are attached. The traffic is much higher since the fuel expansion. Response: This concern falls under the jurisdiction of the Virginia Department of Transportation, and have been forwarded to them for their consideration. Once we receive comments, it will be forwarded to you. D. During the Planning Commission hearing process another neighbor expressed concern for safety due to tractor -trailer parking on Route 50. When the Planning Commission asked the owner about it, he replied there are no parking signs posted and the store advised drivers not to do this. This appeased the Commission and our comments were ignored. Tractor -trailers continue to park on Route 50. We have pictures of a truck parked on the westbound deceleration lane during peak traffic on 10122 and another on Route 50 shoulder in front of the store in the morning of 10124 (the times we conducted traffic counts). Response: Based on conversations with the Sheriffs Office, the placement of "no parking" signs along the road right-of-way will enable the Sheriffs Office to enforce parking restrictions. The market may not be liable for the actions of the truck drivers who choose to ignore the "no parking" signs; their effort to advise customers about the "no parking" signs probably reduces the frequency of parking violations. I have forwarded this concern to VDOT and requested their comments. In summation, the Planning Commission has the authority to request a review of site plans if significant concerns exist and are brought to the staff s and Commission's attention. Without the Planning Commission's request, review and approval of site plans are left to the responsibility of the Zoning Administrator and staff. In terms of the accuracy of the approved site plan, staff believes that in essence, the only discrepancy between the approved CUP and the approved site plan is the 1,440-square-foot addition and the required parking associated with this addition. The presence of the diesel canopy, while not specifically identified on the representative plan included in the CUP application, is not considered to be an increase above and beyond the existing diesel service. Simply stated, if the fuel pumps already exist, placing a canopy above them does not change the pumps legal status. Details such as building entrance locations, dumpster locations, and sales volume are not typically addressed in the absence of voiced concerns. Staff will certainly investigate and address outdoor lighting and noise concerns. Each will be treated in accordance with our policy regarding zoning violations. We will make a concerted effort to work with the property owner to reduce the negative impacts associated with each. Ed and Robin Menefee RE: Hogue Creek Country Market Page 9 November 10, 1997 Based on our discussion, we now have a much clearer understanding of your concerns and will make every attempt to resolve those issues under our control. We will keep you informed of any developments with issues addressed by other agencies, and are available to further discuss this information should you feel that it is necessary. Sincerely, Eric R. Lawrence Planner II ERL/cc cc: Richard Shickle, Gainesboro District Supervisor Jim Longerbeam, Chairman, Board of Supervisors John R. Riley Jr., County Administrator Mark E. Stivers, Council to the Menefees UAE RIOCOMMON\SREP"N\HOGUECR L MEN �CO,6JAJ -79 - SS�� r Ed and Robin Menefee 4722 Northwestern Pike Winchester, VA 22603 October 28, 1997 Mr. Kris Tierney Department of Planning and Development 107 North Kent Street Winchester, VA 22601-5000 Dear Mr. Tierney, On Wednesday, October 22, 1997 my husband and I visited you regarding the Hogue Creek Market Conditional Use Permit (CUP) #013-96. During this meeting we reviewed the CUP Application process and the roles and respective authorities of the Planning Commission and Board of Supervisors. More importantly, we discussed our complaints that the site plan approved by the Department of Planning on 5/14/97 differed from the information given us during the CUP public hearing and approval process in November and December 1996. Hence the purpose of this letter. After this meeting, we visited Richard Shickle from the Board of Supervisors on October 23, 1997 with the same questions and information. To establish some background, please note that in October 1996, my husband and I visited the Department of Planning numerous times regarding the Hogue Creek Market CUP Application after receiving notice of an upcoming hearing. At these visits we asked what the Hogue Creek Market application wanted to do, what were our rights as neighbors, how could we limit/prevent parts of the application and what type of conditions can be requested. We attended the November 1996 Planning Commission's public hearing, along with other neighbors, and spoke of our concerns and requested conditions in the event the application was approved. After the first hearing, we visited Richard Shickle and requested his assistance, which he kindly and professional gave us. All of our knowledge and subsequent actions were based on the information given us at the time by the Department of Planning and our supervisor. We did not want to see the store expand from a country store to a major mini -mart and drive-thru restaurant. However, we were led to believe by the Department of Planning that the Hogue Creek request was a reasonable one. To fight the expansion, we worked with Mr. Shickle to ensure appropriate protection of our right for a peaceful home and protect our property value as best as we could under the circumstances. Mr. Shickle met with the owner and at the time it appeared an understanding was reached. Mr. Shickle advised I did not need to send my letter to the other Board members detailing our concerns. He also advised we did not need to speak at the public hearing as he worked Page 2 Mr. Kris Tierney 10/28/97 out a compromise beforehand with the Hogue Creek Market's owners on the conditions my husband I agreed to accept. This is the reason my husband attended the Board's hearing but did not speak as indicated by the minutes (I was out of town). On Thursday, October 16, I visited the Department of Planning regarding recent construction by Hogue Creek Market. Upon seeing the final site plan for the first time, I learned what the Planning Commission advised prior to the public hearings (October 1996) and what we heard at the two hearings (November/December 1996), differed from the site plan approved by the Department of Planning (May 1997). This has been confirmed from conversations with people in the approval system. Below is a list of our issues. The CUP Application received from Hogue Creek Market on 9/16/96 requested approval to add retail space to the existing Country General Store, and add a small dwelling for a store manager, and provide space for a small drive -through type food service outlet. The additional dwelling was removed from the application. Issues: 1. The site plan with final approval from the Department of Planning approved 1,440 square feet beyond what was approved by the Board of Supervisors. This was a 30% increase over the footage approved in the CUP. 2. Recently, Hogue Creek installed new automobile fuel pumps that expanded the sale of petroleum. The installation resulted in doubling the capacity to sell fuel by enabling twice as many cars to fuel at the same time. No word was ever said to us of any changes to the fuel service. How can expansion of capacity not require a CUP? Isn't building more square footage an expansion of capacity for a retail store? How was this not disclosed? The applicant disclosed it to the Health Department in a letter dated 7/15/96. 3. Hogue Creek also recently installed new diesel pumps and a 10,000-gallon underground storage tank (UST) to replace a small above ground tank. This installation greatly increased diesel fuel capacity and resulted in greatly increasing the sell of diesel fuel, which will likely expand further once tractor -trailer drivers are aware of the service. Again, no word was ever mentioned to us of changing the fuel service; however, the Department of Planning approved this tank via correspondence from the applicant on 7/16/97. How? On what authority? 4. On the site plan the Department of Planning approved a 2,500 square foot canopy with 16 very high wattage lights. This canopy has been installed over the new Page 3 Mr. Kris Tierney 10/28/97 automobile pumps in front of the store and the original canopy has been relocated over the new diesel pumps at the front west side of the property. The new canopy illuminates light throughout our front yard and extends over 425 feet and into the next property. In addition, the light creates shadows as far into our yard as 350 feet. Our house is approximately 225 feet from the lights. This 16-light canopy lighting is in addition to the 6 dimmer lights that exist with the original canopy for a total of 22 lights. A driver has commented to us that the lights are so bright they are blinding to drivers that look into them. No word was mentioned of constructing a larger canopy. How was this not disclosed? We have discovered that it was disclosed on a site plan to the Health Department on a 7/15/96 letter from the applicant. How could such a light nuisance be allowed on the site plan without consideration to neighboring properties? Further, we were left with the impression the maximum size of a sign is 100 square feet. This canopy advertises fuel and is much larger and brighter then the previous canopy which still exists. How does this canopy conform to the ordinance? 5. A "small" drive-thru to service the proposed restaurant was described to us at the public hearing and shown on the application drawing we received from the Dept. of Planning. However, the site plan required 2-way traffic around the store plus the drive-thru lane, resulting in 3 lanes of traffic behind the building. This 2-way traffic is used by tractor -trailers fueling at the newly installed diesel pumps and increases traffic closer to our home (approximately 150 feet away). Before presentation to the Planning Commission, is the application reviewed by the Dept. of Planning or the applicant to ensure adequate space exists to accommodate an expansion? Would one not expect the conceptual plan to follow ordinances and indicate multiple lanes of traffic? Why was this not disclosed? Traffic behind the building is a critical issue for safety and in living by a business with regards to increased noise pollution, fuel fume pollution and lighting pollution. 6. During the Planning Commission Hearing and in conversations with our supervisor we requested the operating hours be limited to the current hours. The original CUP in 1987 did not define hours. Current hours are Sun. -Wed. 5:00 a.m.-10:00 p.m., and Thurs.-Sat. 5:00 a.m.-12:00 p.m. Out of the blue, the Page 4 Mr. Kris Tierney 10/28/97 approved December 1996 CUP establishes hours as 5:00 a.m. —12:00 p.m. with no limitation to the day of the week. How did the hours change? This sign is much brighter and larger than the prior one and is a nuisance. 7. The plan presented at the hearing indicated 13 parking spaces on the east side of the property line (adjacent to our property) and 17 spaces on the west side (store owner's side). The approved site plan has 29 spaces on our side and 17 spaces on the west side. The result of this change is the 29 spaces now wrap down the property line and around the backside of the building. Therefore, there will be more car traffic added to that of the drive-thru creating more noise near our house (150 feet away). The noise will be increased road noise, starting of car engines, and doors slamming. 8. To accommodate the foot traffic in the back, it appears a rear entrance under a covered porch has been approved by the Site Plan. We were not advised of any rear entrance or code requiring this. As a result, this entrance will encourage more traffic in the back creating more noise and light pollution. Adding another entry into the building for egress is a safety concern to me as the store was robbed less than two years ago. 9. We understood from our supervisor, Richard Shickle, that the border between our property line with Hogue Creek would be a low dense landscaping in the front, and a taller dense one along the side and back. The site plan approved an 8-foot high fence that is 184-feet long. To "hide" this fence, the site plan has 9 white pines to be planted. The border was a major concern to us and I had even asked how the border would be approved and if adjoining property owners could be apart of the approval process. I was advised that the Department of Planning would handle this appropriately with the site plan. 10. The CUP application did not note any major change to garbage location. The site plan was approved with the addition of a 20' x 10' Dumpsite. Although this may be required by code, how will rodents be kept out and the smell contained? When will we hear the dump truck picking up trash? Additional issues not relating to the signed Site Plan but still greatly affect us include: A) Hogue Creek's wastewater dumps into our front yard. This was discovered earlier this month when intermittent streams on our property dried up, but the front yard along Route 50 remained a wet swampy area with still wastewater. Investigation by my father-in-law discovered a pipe approximately 5 feet from the Page 5 Mr. Kris Tierney 10/29/97 mutual property line that flows into our yard. Although the sewer field was not noted on the CUP application, the Site Plan indicates the sewer field drain is within feet of the property line. Current wastewater flows are estimated at 353 gallons per day with an existing store size of 3,600 square feet. This waste flow is expected to increase to max. 950 gallons per day once the store/restaurant is in operation. How is the water allowed to flow onto our property? How is this metered? Where does the Department of Planning or the Board of Supervisors think the wastewater will go once the volume triples? Isn't drainage a concern when approving a CUP? B) Upon inquiry with the State Health Department, we discovered the department had approved the CUP Application based on information provided in July 1996. The Health Department never received the revised site plan showing the increased 30% square footage on the retail space as approved in comment #1 on the first page of this letter. Four of the five reviewing agencies were submitted the revised site plan with the 1,440 additional store footage. The applicant indicated this to the Planning Commission on a letter dated 3/24/97. The Health Department was the only review agency that did not submit updated comments to the site plan, but instead documentation indicates the Dept. of Planning accepted comments from 8/21/96. The Health Department letter of 8/21/96 indicates the wastewater treatment system is at 95% capacity based on the information in the CUP Application. The applicant's engineer defined the waste levels for a 7,680 square foot store/restaurant and a I;100 square foot additional dwelling (which was dropped from the application). The Health Department in Lexington, VA advised my husband that when a system exceeds 95% capacity, upgrades to the system and a different permit are needed. However, as noted above, once the Site Plan increased the square footage to a 9,120 square foot retail store/restaurant, how did this affect the 95% wasteflow treatment capacity? Why were updated comments not required from the Health Department? C) Last week, my husband discussed with VDOT our safety (or lack of) in turning into our driveway from the westbound deceleration lane, in addition to the overall safety of the intersection with the increased traffic. Most cars are not expecting us to turn before the store and it may be a matter of time before we are hit from the rear. This was stated in our concerns during the Planning Commission Hearing. VDOT advised the statistics are not high enough to require any changes. Page 6 Mr. Kris Tierney 10/28/97 The information given to VDOT by the applicant indicates that the maximum number of cars turning from the site during a peak traffic hour is 55 vehicles. This calculation is the number of cars after the 4,080' retail store/restaurant is added with a drive-thru service. We discovered the actual traffic count is drastically above the national statistical calculation used in the application. The actual traffic count that we conducted from 4:00 p.m. to 5:00 p.m. on Friday, 10/24 was 132 cars turning into the store in a one -hour peak traffic period. This is before construction of the CUP application (but after installation of fuel tanks, etc.) Neither count of course considers the cars exiting the store or those making a U-turn in the same intersections. During six minutes in the hour noted above, from 4:00 p.m. and 4:06 p.m., there were 23 cars entering the store. Our actual traffic counts are attached. The traffic is much higher since the fuel expansion. D) During the Planning Commission hearing process another neighbor expressed concern for safety due to tractor -trailers parking on Route 50. When the Planning Commission asked the owner about it, he replied there are no parking signs posted and the store advises drivers not to do this. This appeased the Commission and our comments were ignored. Tractor -trailers continue to park on Route 50. We have pictures of a truck parked on the westbound deceleration lane during peak traffic on 10/22 and another on the Route 50 shoulder in front of the store in the morning of 10/24 (the times we conducted traffic counts). Needless to say, noise pollution, light pollution, traffic and congestion have increased since the expansion. Our estimation is that it will continue to increase even greater. When is too much traffic, too much for a rural area? How much more traffic will there be once the approved CUP expansion is complete? Wouldn't the fuel expansion affect the approval of VDOT or the Board of Supervisors? How could all this be allowed to happen? How can the Board of Supervisors approve or not approve a request if realistic and accurate information is not provided during the time of the CUP application process? How can the public (my husband and I) give input if the proposed application is not reality? Why does someone with a small antique shop need a public hearing notice to erect a sign (as noted by a recent public hearing newspaper ad), yet a store can go from the CUP approval to a site plan with the changes noted here and no public hearing is required? Page 7 Mr. Kris Tierney 10/28/97 This CUP was a major change. The approved store/restaurant expansion was a 213% increase over the current size. We need answers, and we need to know how each of these issues will be resolved. Last year, we received a 2-week notice from the Planning Commission on a Public Hearing to discuss an application that had been in the planning by the applicant for at least 8 months. Will we receive a reply in two weeks too? As you know, I originally discovered these discrepancies when I went to the Department of Planning on October lb, 1997. I brought some of the discrepancies to the attention of Andrew Evans as we reviewed the May 1997 Site Plan with the plan in the CUP application. As noted previously, this was the first time I saw the site plan. Although I did not ask for any specific action, Mr. Evans knew I was upset .and that I felt very misrepresented. He said he 'would need to review it further. Mr. Evans noted many of the same differences between the application and approved site plan. Yesterday I received a call from Eric Lawrence advising the additional 1,440 square feet of retail space was not approved by the CUP and would be removed. Will a new sight plan be required? What about the remaining issues and questions noted herein? A written reply is kindly requested. Sincerely, D bin F. Menefee Attachment Cc: Richard Shickle, Board of Supervisor, Gainsboro District Jim Longerbeam, Board of Supervisor, Chairman John Riley, County Administrator Andrew Evan, Zoning Administrator Mark E. Stivers 0 Appendix A Hogue Creek Market — Actual Traffic Counts Wednesday., October 22 1997 Westbound Eastbound Entry Entry 4:00 pm — 4:30 pm 42 4 = 4:30 pm — 5:00 pm 44 3 = 5:00 pm — 5:30 pm 39 8 = 5:30 pm — 6:00 pm 38 4 = 6:00 pm — 7:00 pm 68 FridgaL October 24 1997 6:00 am — 6:30 am 6:30 am — 7:00 am 7:00 am — 7:30 am 7:30 am — 8:00 am 8:00 am — 8:30 am 4:00 pm — 4:30 pm 4:30 pm — 5:00 pm 5:00 pm — 5:30 pm 5:30 pm — 6:00 pm 6:00 pm — 6:30 pm 6:30 pm — 7:00 pm Total 46 47 47 42 15 = 83 Westbound Eastbound Ent ry Entry 7 22 = 19 18 = 17 14 = 13 14 = 14 13 = 56 14 = 52 10 = 60 9 = 45 12 = 28 10 = Total 29 37 31 27 27 70 62 69 57 38 48 Total Per Hour Total Per Hour 63 68 58 54 132 131 126 95 86 CO"NTY of FREDERICK Department of Planning and Development 540/665-5651 FAX: 540/ 678-0682 MEMORANDUM TO Finance Department FROM: Karen A. Clark, Receptionist/Clerk Typist II SUBJECT: Return Of Sign Deposit DATE: December 19, 1996 am -Go The amount of $25.00 was deposited in line item #10-1911-08 for the business named below as a deposit for a sign for Conditional Use Permit Application #013-96. They have now returned the sign and are therefore entitled to the return of their deposit. You may pay this through the regular bill cycle. Please send a check in the amount of $25.00 to: Hogue Creek Country Market 4780 Northwestern Pike Winchester, VA 22603 Please contact me if you have any questions. RSA/kac 107 North Kent Street • . Winchester, Virginia 22601-5000 r • • 01' N COMMITTEE REPORTS Development Review & Regulations Subcommittee (DRRS) - 10/24/96 Mtg. Mr. Wyatt reported that the two items discussed by the DRRS were a text amendment for self-service storage facilities and assisted -living care facilities. PUBLIC HEARING Conditional Use Permit #013-96 of Hogue Creek Country Market by Painter -Lewis for an addition to the existing market and a two -bedroom residence. The property, zoned RA (Rural Areas), is located at 47800 Northwestern Pike and identified with PIN 40-A-66D in the Gainesboro Magisterial District. Action - Recommended Approval Mr. Miller stated that Conditional Use Permit #017-87, approved on October 14, 1987, originally authorized the Hogue Creek Country Market in its present configuration. He said that the proposed expansion is for a drive -through food service to be added to the western end of the existing country store. He added that a site plan would need to be submitted for the addition to the store and significant issues associated with this request could be addressed at that time. Mr. John Lewis ofPainter-Lewis, P.L.C., the project architect, stated that the owner desires to expand his present operations with the addition of a drive-in restaurant/ fast food facility. Mr. Lewis said that the additions will be severely limited by the available sewage treatment, however, they have received tentative approval from the Health Department in Lexington. Mr. Lewis said that they are also contemplating the possibility of constructing an accessory dwelling to the primary dwelling to be used for a store manager. Chairman DeHaven called for public comments and the following persons came forward to speak: Mr. Bill Shevokas, adjoining property owner, was opposed to the expansion for the following reasons: 1) traffic safety in the vicinity of the market; 2) parking of tractor trailer trucks along the berm of Route 50, west of the market, which blocks visibility; and 3) noise pollution from trucks leaving their engines running while they are in the store and/or pumping gas. PLANNING COMMISSION MINUTES NOVEMBER 6, 1996 4280 F 3 Mrs. Robin Menefee, adjoining property owner, said that the map in the application depicts Lot 67 as vacant, however, this is the lot of her primary residence. She stated that all surrounding lots are residential. Mrs. Menefee said that if the application is approved, she and her husband would like to request that: 1) the drive -through be paved; and 2) a tree -line be established between Mr. Owens' property and her property to serve as a visual buffer, a noise buffer, and a trash barrier. Mrs. Menefee commented that Mr. Owens' store has been robbed once before and she has concerns about that, since she lives next door. She added that this is quite a busy place and she would prefer that the store not be expanded. Mr. Douglas L. Owens, the owner/ applicant, said that he understands his neighbors' concerns. Mr. Owens said that there is a deceleration lane along Route 50 and signs are posted prohibiting trucks from parking along the highway. Mr. Owens felt that the property was well - landscaped. He said that some trees were removed, but many trees remained behind the store and at the rear property line. In response to a question about his hours of operation, Mr. Owens replied that his hours are from 5:00 a.m. until 10:00 p.m. Sunday through Wednesday and 5:00 a.m. until midnight Thursday through Saturday. He said that he did not anticipate longer hours with the expansion. Members of the Commission wanted to make sure that suitable buffers were located on the property to protect the adjoining residents from the lights and noise associated with the market and to prevent trash and paper from blowing onto the neighbors' properties. They instructed the staff to consider this upon site plan submittal. They also felt that the drive -way for the drive -through area'should be paved. Other questions that arose concerned permitted sign size, hours of operation, and extent of the fast food operation. Upon motion made by Mr. Thomas and seconded by Mr. Marker, BE IT RESOLVED, That the Frederick County Planning Commission does hereby unanimously recommend approval of Conditional Use Permit #013-96 of Hogue Creek Country Market by Painter -Lewis to allow the expansion of the market with the following conditions: 1. A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line which would reduce light pollution, sound pollution, and be able to catch blowing debris. 4281 PAINTER-LEWIS, P.L.C. CONSULTING ENGINEERS tel.: (540)722-9377 24 East Piccadilly Street tel.: (540)662-1565 Winchester, VA 22601 fax.: (540)662-1861 7 SEPTEMBER 1996 Mr. Wayne Miller COUNTY OF FREDERICK Department of Planning and Zoning 107 North Kent Street Winchester, VA 22601 Re: HOGUE CREEK COUNTY MARKET CONDITIONAL USE PERMIT REAPPLICATION FREDERICK COUNTY, VIRGINIA Dear Wayne: Along with this letter you will find an application for a conditional use permit, a site sketch, comments from VDOT, Inspections, Health, and the fire marshal, and a fee check in the amount of $100.00. The owner would like permission to add retail space to the existing Country General Store, add a small dwelling for a store manager, and provide space for a small drive -through type food service outlet. If you have any questions, or need additional information please call me. Sincerely; J olui C. Lewis, 'P. E�.C.L.A. cc: D.Owens file: 9604001 PAINTER-LEWIS, P.L.C. 0 • Virginia Department of Transportati Attn: Resident Engineer P.O. Box 278 Edinburg, Virginia 22824-0278 (540) 984-4133 The local office of the Transportation Departmen 1550 Commerce St. in Winchester if you prefer to h; form. lNTS RECEIVED APR 9 1996 V.Rr,C ❑i pl ® 011�f [jLNp;Z:loOc t d aG id� deliver this Applicant's name, address and phone number: kk) t Ky-a( sr ram. V ►4 22,1001 Name of development and/or description of the request: Location: Va. Dept. of Transportation Comments: No objections to a conditional use permit for this property. The existing commercial entrances are adequate for the proposed expansion. However, should use ever expand in the future, the entrances may have to be upgraded. VDOT Signature and Date:6 ,/ - (NOTICE TO RESIDENT ENGINEER*PLEASE RETU69 THIS FORM TO APPLICANT.) xc: Mr. S. A. Melnikoff NOTICE TO APPLICANT It is your responsibility to complete this form as accurately as possible in order to assist the agency with their review. Also, please attach a copy of your application form, location map and all other pertinent information. E REQUEST FOR CONDITIONAL USE PERMIT COMMENTS Frederick County Inspections Department Attn: Building Official P.O. Box 601 Winchester, Virginia 22604 (540) 665-5650 The Frederick County Inspections Department is located at 107 North Kent Street, 4th Floor of the County Administration Building in Winchester, if you prefer to hand deliver this review. Applicant's name, address and phone number: -- �p..tVA -- LA5W S , T�L-� � - :j-ZZZ-e1377 244 � , W i N c at5psTc-3 2, U a. zZ f Name of development and/or description of the request: le Z �t-IV L* 6 ZL--X V- Cott MT[Z- "�P�aT L�X?t-- st o 4 OF -FWca l tAtJS,�-> inspection Department comments: Building shall comply with Vi rqi ni a TTn; form Statewide E111 1ding Code and Section 303,309, Use Group A(Assembly) M(Merchantile) of the BOCA National Building Code/1993. Other codes that apply are title 24 Code of Federal Regulation, Fart 36 Nondi'9cr' n Basis of Over please - 7- (NOTICE �� Code Administrator Signature & Date: S, TO INSPECTIONS DEPT.*PLEASE R R TH S FOREM TO MAPPaAN.) NOTICE TO APPLICANT It is your responsibility to complete this form as accurately as possible in order to assist the agency with their review. Also, please attach a copy of your application form, location map and all other pertinent information. • • Disability by Public Accommodations and in Commercial Facilities. ADA 20% Rule applies for addition and renovations. Will need to show ADA Parking and Unloading. The Virginia A/E Seal is required on plans submitted for permit of Assembly Use. Questions on the location of the grease interceptor for kitchen drainage system. 0 8. The type of use proposed is (consult with the Planning Dept. before completing) A� r--"J0'q4 te�btoL-y--LCt3 t3, CI-VY'oUG-,14 Ran) Zocc hKr l 1-7,k uj j,4G VcV- krigricBriS 9. It is proposed that the following buildings will be \ constructed: 1 �►�l �-t�TJ 1T�o.S (9�" , �c%r� ` t- Gaf To 140 oXisTt K�G V-1A1L �T IN lw o C3 r'1 �• ett�.t 10. The following are all of the individuals, firms, or corporations owning property adjacent to both sides, rear and in front of (also across street from) the property where requested use will be conducted. (Continue on back if necessary.) These people will be notified by mail of this application: (PLEASE LIST COMPLETE 14-DIGIT NUMBER.) NAME � 2t� W- 4 �`'`C.� L LLL;-,i e Address 14�3 �uc3 C 1,2vc k L 2 Z Property ID# 14L9_ A- (.9CoS ll��l.l-lcNl J• �3K�2c3t�rt►4 . S F-�-�l�-a�5 Address � �-E-Gi �C-i v C.C2.(�"��- l,.i�►1.G Z Z(co 3 Property ID#_ Address 47( Property ID# _ (c) `' �u�A �� 'CO Address 7 " Pka 2Z6,503 Property ID# A10^A w Lo'w1i� R `' A+-N-4 0• r.i ►NI1 L Address 147*7 P(L& ZZlpo 3 Property ID# 1-0 .A • C � � 14(ffr 2_� Address M1 I 4-7 `�� I�tofZ�LOL%Tct�! Property ID# NAME �. IM(.trev Address q"122 n1�tZ-ct'tc�r�a E��tcz '2.Z4x�3 Property ID# 1-10.- 2'(07 Address Property ID# Address Property ID# Address Property ID# Address Property ID# Address Property ID# Address Property ID# Address Property ID# Address Property ID# Address Property ID# Address Property ID# Address Property ID# it �U'CE 50 DUT- EAST -I NFSigpUND 50 4 MPD/CANOPY r \ 4P, LrEAa\ER USE- !6C' C AfJMCU.TURE EX 9UXDiA0C \ s \ \Jaw SF \ \ \ \ '� RETAIL ' � \ \ fJL 266d Sr p7VEwY \ \ o\ \ \ \ \ 1 0 TTmE STREAMDir /79 L — / ,wc LOT 67 MN ONE / / „20 Sr / DCWANO ESTATES De 476 PO 7J \ USE: Mawr \ v. \ ( ACCESSORYOWE Ll /� I i - RIr 44RO w LARX44 TE e VSL' RES+OELyCE -� SAR£ N o" AXE i - /N 16159 .-7?&5 j or. OwruAYC �\ ISEP71C T 17 \ A7U \\ AS F0000 � \ a - \ ,2 OUTLET CavrMoL " WCM4NDS CEU Te rwv. awwr+c£ Paivr p dIOG�G7�QL�'�17��. 24 Ead NwadMy St—t wlaa—tn . wQinia 22501 ToMp-6 (703)722-9377 0 LI 12. Additional comments, if any: I (we), the undersigned, do hereby respectfully make application and petition the governing body of Frederick County, Virginia to allow the use described in this application. I understand that the sign issued to me when this application is submitted must be placed at the front property line at least seven (7) days prior to the first public hearing and maintained so as to be visible until after the Board of Supervisors' public hearing. Your application for a Conditional Use Permit authorizes any member of the Frederick County Planning Commission, Board of Supervisors or Planning and Development Department to inspect your property where the proposed use will be conducted. Signature of Applicant Signature of Owner Owners' Mailing Address VJ ►.� lkc�S`C a& V I4 '2 -Z&,o 3 Owners' Telephone No.j�ti TO BE COMPLETED BY ZONING ADMINISTRATOR: USE CODE: RENEWAL DATE: 013r-q6 Submittal Deadline -11- P/C Meeting N- 6 s BOS Meeting 11-$*1-J9 -APPLICATION. FOR CONDITIONAL USE PERMIT FREDERICK COUNTY, VIRGINIA 1. Applicant (The applicant if the owner �_ other) NAME: :Pitt I-kTVF -- L-cwLS , Tom• L •6- .` ADDRESS : �` 1. `�tGG't`�-'say i .t�`1 I �`T. 4�I t�lCt(-t+�'� �IP► 'Z�.(an TELEPHONE GJ 40- (22 - T-3-7.7 2. Please list all owners, occupants, or parties inv,t eves the property: 3. The property is located at: (please give exact directions and include the route number of your road or street) 4. The property has a road frontage of %X5 feet and a depth of feet and consists of 5.c > acres. (Please be exact) 5. The property is owned by-,:�boC,L4�a �„ �uU,�IJS as evidenced by deed from -nI,,c�'Cn tn1C recorded (previous owner) in deed book no.. % Z1' on page 2 3� , as recorded in the records of the Clerk of the Circuit Court, County of Frederick. 6. 14-Digit Property Identification No. 4o-A 66, ') Magisterial District AI���,dt2� Current Zoning 7. Adjoining Property: USE ZONING North V- A East L D M-MTCtaL South r2,0%(Do-ATt*L 10\ West C�,lett �T o� W Or`l PC REVIEW: 11/6/96 BOS REVIEW: 12/11/96 CONDITIONAL USE PERMIT #013-96 PAINTER-LEWIS, P.L.C. Hogue Creek Country Market LOCATION: This property is located at 4780 Northwestern Pike. MAGISTERIAL DISTRICT: Gainesboro PROPERTY ID NUMBER: 40-A-66D PROPERTY ZONING & PRESENT USE: Zoned RA (Rural Areas) District; Land Use: Residential ADJOINING PROPERTY ZONING & USE: Zoned RA (Rural Areas) District; Land Use: Residential and a right-of-way PROPOSED USE: Country market addition with drive -through food service and to add an accessory dwelling to the site. REVIEW EVALUATIONS: Virginia Dept. of Transportation: No objections to a conditional use permit for this property. The existing commercial entrances are adequate for the proposed expansion. However, should use ever expand in the future, the entrances may have to be upgraded. Inspections Department: Building shall comply with Virginia Uniform Statewide Building Code and Section 303, 309, Use Group A (Assembly) of the BOCA National Building Code/1993. Other codes that apply are title 24 Code of Federal Regulation, Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities. ADA 20% Rule applies for addition and renovations. Will need to show ADA Parking and Unloading. The Virginia A/E Seal is required on plans submitted for permit of Assembly Use. Questions on the location of the grease interceptor for kitchen drainage system. 0 Painter -Lewis, P.L.C. - CUP #013-96 Page 2 December 4, 1996 Fire Marshal: No comments. Commonwealth of Virginia Department of Health, Office of Water Programs: (See attached letter from Harold T. Eberly, District Engineer, dated 8-21-96.) Planning and Zoning: Conditional use permit #017-87, approved by the Board of Supervisors on October 14, 1987, originally authorized the Hogue Creek Country Market in its present configuration. The original permit required a new permit for expansion and/or change of use, the reason for this application being presented. The proposed expansion is for a drive -through food service to be added to the western end of the existing country store. This appears to be a reasonable request and staff supports approval of this request. A site plan would need to be submitted for the addition to the store and significant issues associated with this request can be addressed at that time. A portion of this request also requests approval for the addition of another two -bedroom accessory residence to this property. The ordinance does permit one accessory residence with a business which must be occupied by the owner, an employee or watchman. This already exists in the form of the residence of the owner, Mr. Owens. Since the existing residence was built after the market was completed, it is the Planning Staff s opinion that the existing. dwelling is accessory to the business and that an additional dwelling on the property is not permitted. Our ordinance clearly limits residences to one per lot and allowing this to occur would be an unwarranted precedent. The zoning and size of the lot does not permit further division of this property. Staff Recommendation for 11/6/96: Staff recommends approval of the portion of this permit to allow expansion of the market and denial of the portion of the permit requesting the additional residence on the property. If the portion allowing expansion of the market is approved, the . following conditions are recommended: A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. All review agency comments and requirements must be complied with at all times. 0 0 Painter -Lewis, P.L.C. - CUP #013-96 Page 3. December 4, 1996 PLANNING COMMISSION SUMMARY & ACTION OF 11/06/96: Two adjoining property owners spoke in opposition to expansion of the market. Their concerns centered around general traffic safety, tractor -trailers parking along the side of Route 50 which blocks visibility, and the overall sights and sounds generated by a busy establishment --engine noise from trucks utilizing the market, blowing trash, and the appearance of the property. Members of the Commission wanted to make sure that suitable buffers were located on Mr. Owens' property to protect the adjoining residents from the lights and noise associated with the market and to prevent debris from blowing onto their properties. An additional condition was added to those recommended by staff to ensure that buffers were addressed at site plan submittal. The Commission felt that their other concerns, such as hours of operation, sign size, extent of operations, and pavement of the drive -through area, were adequately addressed by the applicant. The Commission unanimously recommended approval with the following conditions: A site plan must be submitted and approved for the proposed addition prior to any construction activity. 2. Any future expansion of this facility or change in use will require a new conditional use permit. 3. - All review agency comments and requirements must be complied with at all times. 4. At the time of site plan submittal, a buffer shall be considered along the property line of the adjoining residence which would reduce light pollution, sound pollution, and be able to catch blowing debris. (Mr. Wilson and Mr. Romine were absent.) �� ..III III (, � w � dA �➢FJP 1 a �PSACOMMONWEALTH of VIRGINIA RANDOLPH L. GORDON, M.D., M.P.H. Department of Health ROCKBRIDGE SQUARE SHOPPING CENTER COMMISSIONER Office of Water Pro/grams 131 WALKER STREET y LEXINGTON, VIRGINIA 24450-2431 Environmental Engineering Field Office PHONE: (540) 463-7136 FAX: (540) 463-3892 21 August 1996 SUBJECT: Frederick County Sewerage - NPDES Permits (Hogue Creek Country Market) Mr. John C. Lewis, P.E. Painter -Lewis, P.L.C. 24 East Piccadilly Street Winchester, Virginia 22601 Dear Mr. Lewis: This is in response to your letter of 15 July 1996 requesting comments on the proposed improvements to the Hogue Creek Country Market. Based on our review of the information provided and limited information in our files, we offer the following: 1. The projected wastewater flows (950 gallons per day [gpd]) should be within the treatment capabilities of the retail outlet's existing 1000 gpd wastewater treatment facilities. This observation is based on separate treatment facilities being provided for the retail outlet and existing residence and metered water use provided. 2. Neither the site plan nor available permit site sketches indicates the presence of chlorination, dechlorination, or post aeration facilities for the retail outlet treatment facility. Therefore, it appears that these unit processes will be needed to insure compliance with effluent discharge limits. 3. The status of the NPDES permits should be verified. Discussions with the Department of Environmental Quality indicate that two .permitted discharges exist for this property and that renewal of one permit, believed to be the existing residence, has not yet been accomplished. In accordance with the above comments, this office has no objection to the proposed Hogue Creek Country Market improvements provided adequate treatment capacity is available, a valid discharge permit exists, and any necessary local approvals are obtained. . 0 0 Mr. John C. Lewis 2 21 August 1996 SUBJECT: Frederick County Sewerage - NPDES Permits (Hogue Creek Country Market) Should you have any questions, do not hesitate to contact me. Very truly yours, y Harold T. Eberly District Engineer HTE/bt/08213. doc cc Frederick County Health Department VDH - Richmond Central • • K 2 U CASH RECEIPT Date �19-00250 3 W �► Received From v a , 1100 Address`'�T 5 W W o Aj p -d ars$ D .Z6 For vw- m z ACCOUNT HOW PAID Wd > G LL a W AMT. OF ACCOUNT �"'1/� \jLJ CASH G LL AMT PAID CHECK F BALANCE DUE MONEY ORDER G. Q S w 4C��Cnr COUNTY of FREDERICK Department of Planning and Development . 5401665-5651 FAX: 540/678-0682 INICAMCPAVICAN OF PUBLIC HEA11MING November 27, 1996 TO: THE APPLICANTS) AND/OR ADJOINING PROPERTY OWNER(S) RE: APPLICATIONOF"HOGUECREEK COUNTRY MARKET" -PAINTER-LEWIS,P.L.C., CONDITIONAL USE PERMIT #013-96 On behalf of the Frederick County Board of Supervisors, you are hereby notified of a public hearing being held on December 11, 1996, at 7:15 p.m., in the board room of the new Frederick County Administration Building at 107 N. Kent Street, Winchester, Virginia. This hearing is to consider the application of Painter -Lewis, P.L.C. for "Hogue Creek Country Market," for an addition to the existing market and a two -bedroom residence. The property is located at 47800 Northwestern Pike and identified with PIN 40-A-66D in the Gainesboro Magisterial District. Any interested parties having questions or wishing to speak may attend this meeting. A copy of the application is available for review at the Handley Library, or the Department of Planning and Development located at 107 North Kent Street in Winchester, VA. Sincerely, W. Wayne iller Zoning Administrator WWM/cc 107 North Kent Street • Winchester, Virginia 22601-5000 r' 1 Y • This is to certify that the attached correspondence was mailed to the following on 6ir, q6 from the Department of Planning and Development, Frederick County, Virginia: .C) — -n Eac!s) i40 I...Fal•• (.)L..I...EE.'T"T'I.., Iv.l.t.:l••It`�I•tix) W. NF1.1.1.-, L..C)I•�ING F., 14 ANNF• C)w A 1C)< 1.�i(E3 I IG)t l.1EE: (::F.EE:k:I< LANE'.1 14'747 NORTF•IWEKSTE RN PIKE' WTNC:h•IE'X;-T'1"s:F�, VA. i W:I:NC HEE:S T'EE R, VA. 40 A 66ti ral•• EVOKAS, WIL..l...TAM ..1 x?c61Fuvio)RA G 40 A 99 1.w'i C'(YT'1^1F:F+ I: NEE: :i>'T' Fir-x)FUC.K, flew :i HEERWOOD YORK , SIC: 47(E)'P NORTHHWE STERN PIKE KEE: WINCI-129*11-ii-R, VA. 40 F1 1.0 ;? SEE:EIK, RAYMOND h 7:N)T T'1^1 i AC) .,? i 67 4769 N(3r-n'1•1Wr-:9T'Ei:RN 1^':I:KF. i MEE:NI::FEE:Ei:, 'Ei:1)WARD D WTNC:1••IEE:9T1?E:R, VA. i 472,2 N(:)F:11-•IWE ST'E RN P:I 1:1' � WINCHE'STER, VA AC) 'A C.:HAVU..EE:13 W.. &x:a�EE:Nx)n x> j PAINTER-LEWIS, P.L.C. 4'76W:I:Nc`1.*"..fa7 E w ti EE:F4N I° ,:E:1<I„: 302 South Braddock St 6 '"'s— Suite 200 Winchester, VA 22601 Douglas L. & Penny J. Owens ' 4780 Northwestern Pike Winchester, VA 22603 W. Wayne MPr, Zoning Administrator -- --- -- — - - Frederick County Planning Dept. STATE OF VIRGINIA COUNTY OF FREDERICK I, I=f I NT)n 'F1d i l I , a Notary Public in and for the State and.County aforesaid, do hereby certify that W. Wayne Miller, Zoning Administrator for the Department of Planning and Development, whose name is signed to the foregoing, dated I I - a1 .9 to , has personally appeared before me and acknowledged the same in my State and County aforesaid. !� Given under my hand this @1th day of ft7►piY bec lQG V . My commission expires on - Fdm1,1 cog jq q q NOTARY PUBLIC COUNTY of FREDERICK Department of Planning and Development 5401665-5651 FAX: 540/ 678-6682 AIFICAIVIOI I Of PUBLIC HEARING October 21, 1996 TO: THE APPLICANT(S) AND/OR ADJOINING PROPERTY OWNER(S) RE: APPLICATION OF "HOGUE CREEK COUNTRY MARKET" - PAINTER-LEWIS, CONDITIONAL USE PERMIT #013-96 On behalf of the Frederick County Planning Commission, you are hereby notified of a public hearing being held on November 6, 1996, at 7:00 p.m., in the board room of the Old Frederick County Courthouse, Winchester, Virginia. This hearing is to consider the application of Painter -Lewis for "Hogue Creek Country Market," for' an addition .to the existing market and a two -bedroom residence. The ptoperty is located at 47800 Northwestern Pike and identified with PIN 40-A-66D in the Gainesboro Magisterial District. Any interested parties having questions or wishing to speak may attend this meeting. A copy of the application is available for review at the Handley Library, or the Department of Planning and Development located at 107 North Kent Street in Winchester, VA. Sincerely, W. Wayne iller Zoning Administrator W WM/cg 107 North Kent Street • Winchester, Virginia 22601-5000 This is to certify that the attached correspondence was mailed to the following on c t. 2 3, / 9g16 from the Department of Planning and Development, Frederick County, Virginia: 40 A i.QQ NAIL., L.ORING R. h ANNA 0.. 4747 NORTHWESTERN PIKE: WINCHE::STER, VA. 22603-M 40 A 661 L.AF"OL.L.E:TT'E, RICHARD W. 148 HOGUE CREEK LANE WINCHE:STER, VA. 2260:3.... 4Q A 43,60 SHEVOKAS, WIL.L.IAM J & �tAl:<IgARA G 15 CATHE:RINE ST YORK, SC 2974"..'i-- 4Q A 1.02 SEE-.:, RAYMOND & EE:DITH 4769 NORTHWESTERN PIKE: WINCHE'STE::R, VA. 226Q3- 40 A 101. NEWCOME:, CHARL.E::S W. & BRE:NDA D 4765 NORTHWESTERN PIKE: W I NCHESTEER , VA. 2.2603 - PAINTER-LEWIS, P.L.C. 302 South Braddock St Suite 200 Winchester, VA 22601 40 HE DRIC:K, B. SHEE:RWOOD 4784? NORTHHWE:STEE:RN PIKE WINCHEE:STER, VA 40 MENEF'E:E, EDWARD D 4722 NORTHWESTERN PIKE WINCHE:.'STE:R, VA Douglas L. & Penny J. Owens 4780 Northwestern Pike Winchester, VA 22603 A 99 22603-. 2 1 67 27603-- AX W. Wayne Miler, Zoning Admi istrator Frederick County Planning Dept. STATE OF VIRGINIA COUNTY OF FREDERICK I, �)cjr) Ha I! , a Notary Public in and for the State and County aforesaid, do hereby certify that W. Wayne Miller, Zoning Administrator for the Department of Planning and Development, whose name is signed to the foregoing, datedIc1q (p has personally appeared before me and acknowledged the same in my State and County aforesaid. Given under my hand this a8Cd day of (:)C:bb F, I I `"I tU My commission expires on E(:Lw / 6"" NOTARY PUBLIC FFF TRAW vol � k At SART f• ..� t, t -TAw 7 14 Aid" L AISL aLm7 UP 08-28-2009