HomeMy WebLinkAbout03-06 Application (2)2 91YERICK
Department of Planning and Development
540/665 -5651
FAX: 540 /665 -6395
May 29 2008
Thomas Moore Lawson, Esquire
PO Box 2740
Winchester, VA 22604
RE: REZONING #03 -06, 0 -N MINERALS (CHEMSTONE)
Portions of Parcels 83 -A -109 and 90 -A -23
Dear Mr. Lawson:
This letter serves to confirm action taken by the Frederick County Board of Supervisors at their
meeting of May 28, 2008. The above- referenced application was approved to rezone 394.2 acres
from the RA (Rural Areas) District to EM (Extractive Manufacturing) District, with proffers, for a
quarry. The Middle Marsh property is located east of Belle View Lane (Route 758), west and
adjacent to Hites Road (Route 625), and is bisected by Chapel Road (Route 627). The Northern
Reserve is bounded to the south by Cedar Creek and is west and adjacent to Meadow Mills Road
(Route 624), in the Back Creek Magisterial District.
The proffer originally dated June 13, 2005 and revised last on May 27, 2008 which was approved as
a part of this rezoning application is unique to this property and is binding regardless of ownership.
Enclosed is a copy of the adopted proffer statement for your records.
Please do not hesitate to contact this office if you have any questions regarding the approval of this
rezoning application.
Sincerely, � —
✓ Michael T. Ruddy, AJCP
Deputy Planning Director
MTR/bad
Enclosure
cc: O -N Minerals, PO Box 71, Strasburg, VA 22657
Patrick Sowers, P.E., PHR &A, 117 E. Piccadilly St., Ste. 200, Winchester, VA 22601
Gary A. Lofton, Board of Supervisors, Back Creek District
\ Cordell Watt and Greg Unger, Back Creek Planning Commissioners
Jane Anderson, Real Estate
\Commissioner of Revenue
107 North Kent Street, Suite 202 Winchester, Virginia 22601 -5000
I)
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REZONING APPLICATION #03 -06
O -N MINERALS (CHEMSTONE)
Staff Report for the Board of Supervisors
Prepared: May 22, 2008
(Original prepared on March 20, 2006, May 22 2006, and April 14, 2008)
Staff Contact: Michael T. Ruddy, AICP, Deputy Planning Director
BOARD OF SUPERVISORS UPDATE FOR 05/28/08 MEETING
The following is a chronology of events that have occurred since the Board of Supervisors tabled
this request at vour April 23, 2008 meeting.
The Applicant provided a revised Draft Proffer Statement to County dated May 14, 2008.
Staff and Mr. Mitchell reviewed and commented on revised proffers dated May 14, 2008 and met with
Applicant on May 19, 2008 (Mr. Mitchell provided a review letter dated May 19, 2008).
The Applicant provided a revised Draft Proffer Statement to County dated May 20, 2008.
Staff and Mr. Mitchell reviewed and commented on revised proffers dated May 20, 2008 and met with
Applicant on May 21, 2008 (Mr. Mitchell provided a review letter dated May 21, 2008).
The Anplicant provided a revised Final Proffer Statement to County dated May 22, 2008.
Mr. Mitchell reviewed the Final Proffer Statement dated May 22, 2008 and states that the Applicant has
made an effort to address the staff comments and his legal review comments. Further, that the Applicant
has made numerous revisions to the Proffer Statement and has improved the Proffer Statement. The
Proffer Statement is in the appropriate legal form. Mr. Mitchell has provided an update of his legal
review in the attached letter dated May 22, 2008; letter attached.
The following is a summary of the changes that the Applicant has made to their application and is
based upon the Applicant's Proffer Statement dated Mav 22, 2008.
The Applicant has reduced the total acreage sought to be rezoned from 639.13 acres to 394.2 acres, a
reduction of 244.93 acres.
The Applicant has modified their GDP to reflect the reduced acreage and has specifically incorporated
the following into the Proffer Statement; the additional phasing plans and view shed plats, the berming
and landscape recommendations of the VA State Forester, the exhibit which clarifies the 8 acre
dedication, and the well and blasting survey and agreements.
The Applicant has proffered to limit the truck loads to 86 per day, except under certain circumstances.
in which event it will be limited to 200 per day.
The Applicant has made a number of additional changes to address the comments offered by Mr.
Mitchell which are further described in Mr. Mitchell's May 22, 2008 proffer review letter.
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Rezoning 403 -06 — O -N Minerals (Chemstone)
May 22, 2008
Page 2
Based upon an evaluation of the May 22, 2008 Proffer Statement, Mr. Mitchell has also provided an
opinion to the Board that the Board is not required to hold another public hearing before acting on this
conditional rezoning application with the revised proffers and reduced acreage. Please see attached
letter dated May 22, 2008.
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HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
G+' XMIJ IMNS.Arra Olia:BlI Ma 22 '
HAND- DELIVERED
Michael T. Roddy, AICP
Deputy Director
Frederick County Department of Planning &
Development
107 North Kent Street
Winchester, VA 22601
PLEASE REPLY TO
P. O. Box 848
WINCHESTER, VIRGINIA 22604 -0848
Re: Chemstone -- Middletown [O.M. Minerals (Chemstone) Company]
Proposed Proffer Statement -- Updated Review
Dear Mile:
I am in receipt of the Applicant's Proposed Proffer Statement, revised as of
May 22, 2008.
This wi II Update my proffer review letter of May 19, 2008 which reviewed the
Proposed Proffer Statement revised as of May 14, 2008.
Since my letter of May 19, we have had two extensive meetings with the
Applicant's representatives and attorney, in which staff comments and my legal
review comments have been addressed. As a result of those meetings, the Applicant
has, in my view, made nwnerouS revisions in response to otu comments and has
improved the proffer Statement. In addition, the Applicant has reduced the total
acreage sought to be rezoned from 639.13 acres to 394.2 acres, a reduction of 244.93
acres.
A PARRIERSHIP OF PROFESSIONAL CORPORATIONS
ATTORNEYS
AT LAW
WILBUR C.
HALL (1892 - 1972)
THOMAS V.
MGNAHAN (1924 -1999)
6 301 EAST MARKET STREET
9 EAST BOSCAWEN STREET
SAMUEL D.
ENGLE
LEE58URG. VIRGINIA
WINCHESTER. VIRGINIA
O. LELAND
MAHAN
TELEPHONE 103 -777 1050
TELEPHONE 540.6623200
ROBERT T.
MITCHELL, JR.
FAX 540-6624304
JAMES A.
KLENKAR
E -MAIL lawyers @allmonahan.Wm
G+' XMIJ IMNS.Arra Olia:BlI Ma 22 '
HAND- DELIVERED
Michael T. Roddy, AICP
Deputy Director
Frederick County Department of Planning &
Development
107 North Kent Street
Winchester, VA 22601
PLEASE REPLY TO
P. O. Box 848
WINCHESTER, VIRGINIA 22604 -0848
Re: Chemstone -- Middletown [O.M. Minerals (Chemstone) Company]
Proposed Proffer Statement -- Updated Review
Dear Mile:
I am in receipt of the Applicant's Proposed Proffer Statement, revised as of
May 22, 2008.
This wi II Update my proffer review letter of May 19, 2008 which reviewed the
Proposed Proffer Statement revised as of May 14, 2008.
Since my letter of May 19, we have had two extensive meetings with the
Applicant's representatives and attorney, in which staff comments and my legal
review comments have been addressed. As a result of those meetings, the Applicant
has, in my view, made nwnerouS revisions in response to otu comments and has
improved the proffer Statement. In addition, the Applicant has reduced the total
acreage sought to be rezoned from 639.13 acres to 394.2 acres, a reduction of 244.93
acres.
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HALL, MONAHAN, ENGLE, MAHAN S& MITCHELL
Michael T. Ruddy, AICP
May 22, 2008
Page 2
You will find enclosed an update of illy legal review based on the May 22, 2008
revised Proffer Statement. The enclosed dMinlent contains my May 19 review
comments, annotated with updated comments reflecting the May 22 revised Proffer
Statement.
Very truly yours,
Robert T. Mitch
RTM /glh
Enclosure
CC: Thomas Moore Lawson, Esquire, via fax
COMMENTS ON
MAY 14, 2008 REVISED PROFFER STATEMENT
General:
1. I would recommend that the "PROPERTY" heading of the Proposed
Proffer Statement, in referring to the Tax Map Parcels, be revised to state as follows:
"Tax Map Parcels 83 -A -109 ( "Parcel 109 ") and 90 -A -23 ( "Parcel 23 ") (collectively,
the "Properties "). In addition, the Proposed Proffer Statement should be consistent
throughout in the manner in which it refers to the respective parcels.
Undated Comment: The Applicant has made the suggested changes in the
heading.
2. In the second paragraph the proffer statement references a GDP dated
March 18, 2008. However, the GDP plats submitted with the March 18, 2008
Proposed Proffer Statement are dated "June 2007 ". The reference to the date of the
GDP needs to be corrected.
Undated Comment: The Applicant has corrected the GDP date.
3. The next to the last sentence of the second paragraph should more
specifically identify what is being submitted as the GDP. I would suggest language
along the following lines: "The Applicant attaches and incorporates the GDP, which
includes a plan titled Generalized Development Plan; a plan titled Overall Plan; four
plans titled Phase I Plan, Phase II Plan, Phase III Plan and Phase IV Plan; and ten
vewshed plats titled Viewshed IA, Viewshed 113, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 413, Viewshed 5A, Viewshed 513, Viewshed 6, Viewshed 7
and Viewshed 8."
Ujdatecl Comment: The Applicant has included the suggested language.
4. In the last sentence of the second paragraph the Applicant states "The
Applicant submits its operations and activities will be in general conformance with the
Generalized Development Plan." The usual reference to a GDP in a proffer statement
is to proffer that the development will be in "substantial conformity" with the GDP.
Accordingly, I would recommend that the last sentence of the second paragraph be
revised to state as follows: "The Applicant proffers that its operations and activities
and development of the Properties will be in substantial conformity with the GDP."
Undated Comment: The Applicant has included the suggested langitage.
5. The third sentence in the second paragraph states: "Any proffered
conditions that would prevent the Applicant from conforming with the State and /or
Federal regulations shall be considered null and void." The Applicant is in a better
position than the County to determine whether or not any of its proffers are not in
conformity with the State or Federal regulations, and this sentence should be deleted.
Undated Comment.' No change. Items in violation of state and /or federal
regudations would be unenforceable in a„y event. In my revieiv of the proffers, 1 do
not find proffers which would likely be inconsistent with state orfederal regulations.
6. In a number of places in the Proposed Proffer Statement (second
paragraph on Page I, Proffer 2.3, Proffer 5. 1, Proffer 9. 1, Proffer 9.2) a reference is
made to an exhibit as "Exhibit 11 . On the eve of final action on this proffered
rezoning, all exhibits should be numbered and the exhibit numbers set forth in the
proffers. A complete and final Proffer Statement, with all exhibits, must be before the
Board at the time final action is taken on the rezoning.
Updated Canment: The exhibits referenced in the Proffer Statement have been
labeled and provided.
Proffer 2.3 (Berms)
1. The revised proffer is, at best, confusing and incomplete. The revised
proffer states "The berm depicted on the Phase I plat shall be installed within 10 years
of the approval of the rezoning." However, the Phase I Plan depicts two berms,
"BERM A" and "BERM B ". Further, this would seem to indicate that mining
operations would commence on Parcel 23 immediately (See Proffer 15. 1), but that the
berm would not be created until up to 10 years later. Further, the proffer makes no
reference to the Viewshed plats which are a part of the GDP and which presumably
establish the height and Location of the berm or berms. Therefore, it is illy opinion
that this proffer needs to be amended to address the foregoing issues.
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2. The revised proffer purports to address my prior comment that the
proffer is not specific as to the landscaping to be installed by adding the sentence,
"Furthermore, the plantings, includingbut not limitedto, the descriptions of the plants
to be installed on the berms are more specifically described in the attached and
incorporated `Exhibit '." First of all, the words "the plantings, including but not
limited to" should be deleted from the sentence. Further, staff should review the
exhibit (1 was not provided a copy) to determine if the plants proposed to be installed
are satisfactory.
3. The sentence regarding the overburden stock pile has been added. It
should be noted that the reduction in height of the stock pile does not have to occur
for 5 years, and, further, the Applicant is only obligated to reduce the height to thirty
feet, which may be higher than the adjacent tree line.
Undated Comment: Proffers 2.2 and 2.3 (formerly Proffer 2.3) have beery
rewarded in accordmmce rvitlr our suggestions, and has substantially addressed the
above comments on this proffer.
Proffer 3.1 (8 -acre Historic Site)
1. The revised proffer changes the grantee of the site to the Cedar Creek
Battlefield Foundation, Inc. My recommendation is that it be conveyed to Belle
Grove, Inc., for the reasons set forth in my April 11, 2008 letter revising my April 4,
2008 proffer view letter as to this proffer.
I)dated Comment: No change.
2. It would appear that any necessary plat work to delineate the 8 -acre
site has already been done, or could be quickly done. Accordingly, there should be
a commitment to dedicate the 8 acre site within 60 days of final rezoning.
Undated Comment: The Appliccnrt has revised the proffer to dedicate the 8-
acre site within 60 clays.
3. Further, if the 8 -acre site is to be promptly dedicated, I question the
need or advisability of the Applicant placing restrictions on that 8 acre site,
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particularly without specifying the restrictions in the proffer and without any
commitment that the restrictions placed on the site would be acceptable to the grantee
of the dedication.
Updated Comment: The Applicant has provided a copy of the restrictions to
be placed on the property (Exhibit 4).
4. IN A NOTE TO THIS PROFFER THE APPLICANT STATES THAT
THE 8 -ACRE SITE "IS NOT TO BE INCLUDED IN THE PROPERTY TO BE
REZONED ". THIS WOULD BE A CHANGE IN THE APPLICANTS'
APPLICATION AS TO THE PROPERTY REQUESTED TO BE REZONED. THE
APPLICANT SHOULD SPECIFICALLY AMEND ITS REZONING REQUEST IN
WRITING, AND NOT SOLELY BY A PARENTHETICAL NOTE IN AN
INDIVIDUAL PROFFER. FURTHER, THE GDP, AND PERHAPS OTHER
EXHIBITS, WILL NEED TO BE AMENDED TO SHOW THAT THE 8 -ACRE SITE
IS NOT PART OF THE PROPERTY SOUGHT TO BE REZONED.
Undated Comment: The zoningplats (Exhibit]) show that the 8 -acre site is not
a part of the property to be rezoned.
Proffer 3.2 (Archeological Survey)
1. It would seem that it would have been advisable for the Archeological
Survey to have been conducted prior to the rezoning application, so that all historic
sites, buildings, structures, and objects on the property would be located and identified
in order for the impacts of the proposed rezoning on those historic features to be
evaluated.
Updated Comment: No change.
2. The proffer contains no commitment as to how any such historic
features identified will be dealt with and protected in the development and use of the
property.
Updated Comment: No change.
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3. There is no commitment in the proffer to conduct further phases of the
study if warranted from the information developed from the Phase I Study.
Updated Comment: No change.
4. This proffer previously provided for a Phase I Archeological Survey
within one year of final rezoning or prior to any land disturbance on the Properties.
However, the May 14 revision changes the time period to do the survey from one year
to 18 months. Further, the May 14 revision permits mining activities on a "portion of
the Properties" on which a survey has been done, but before a survey has been done
on all of the Properties. The "portion of the Properties" is not defined, and may be
construed to mean a portion of one of the two parcels. At the very least, there should
be a commitment to not commence any land disturbance on Parcel 23 or Parcel 109
until the survey is completed for that parcel.
Updated Comment: No substantial change. This proffer does conunit to all
archeological survey being completed on mryportion oftheproperty on which mining
activities are to be conducted, before such activities are commenced.
Proffer 3.3 (Cemeteries)
1. The Applicant, in response to the comment in my April 4 proffer
review letter that the proffer should include aprovision that the cemeteries will remain
in an undisturbed state following the historical restoration, has added the following:
"After the historical restoration, the Applicant will follow the recommendations of
Applicant's historian." This sentence has been added with respect to both cemeteries.
It should be noted that the Applicant is stating that it will following the
recommendations of its own historian.
Updated Comment: No change.
2. With respect to the second cemetery, reference is made to a right of
way, which the Applicant proffers to open. There is no commitment of the timing of
the opening of that right of way.
UpdatedComment: TheApplicanthasconnnittedtoirnprovingthee •ight -of =way
within 12 months of the completion of the cemetery restoration, and to maintain the
right -of -way once opened.
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3. Further, the proffer provides that it will be open for access by "the
relatives" of those in the cemetery. I recommend substituting the word "visitors" for
the words "the relatives ".
Undated Comment. The Applicant explains that the subject cemetery contains
only a few family graves, and is not a cemetery of historical importance or interest.
Applicant has changed the term "relatives" to "descendants ".
4. In the last sentence the words "it is anticipated that" should be deleted
from the beginning of the sentence.
Updated Comment: The Applicant has deleted those words.
Proffer 5.1 (Monitoring Wells) (I was not provided with a copy of the exhibit
referenced in this revised proffer. The exhibit must be included with the Proffer
Statement, and it should be reviewed by staff.)
Updated Comment: The location of the monitoring wells are shown on the
Overall Plan of the GDP.
Proffer 5.2 (Impact on Wells) By having the phrase "Subject to and consistent
with the provisions of paragraph 9.2" at the beginning of the first sentence, it may
limit the responsibility of the Applicant to remediate adverse impacts to wells to those
properties which opted for a pre- mining survey under Proffer 9.2. It is my
recommendation that that phrase be deleted from the beginning of Proffer 5.2.
Updated Comment: No change.
Proffer 6.1 C Dust Controlj This proffer does not describe how and by whom
"adverse impacts" to surrounding properties caused by dust will be determined.
Updated Comment: No change. The Applicant indicates that dust control is
regulated by government regulations.
Proffer 8.1 (Traffic)
1. By the adding of the first three sentences in this proffer in the May 14
revision, it would appear that what the Applicant is proffering that truck loads will be
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limited to 86 truck loads per day, averaged over the prior 30 days, except in the event
of "emergency or circumstances ", in which event truck loads will be limited to 200
per day, averaged over the prior 30 days. It would seem that this portion of the proffer
could be more clearly and simply stated in the proffer.
Updated Comment: The language of the Proffer is not changed. The Applicant
is proffering to limit truck loads to 86per day, except under certain circumstances,
in which event it will be limited to 200 per day.
2. The "emergency or circumstances" exception to the truck load limits
would appear to be very difficult for the County to document in enforcing this proffer.
Updated Comment. No change.
3. The last sentence of this revised proffer is so vague as to be
unenforceable as a proffer.
Updated Comment: The last sentence has been deleted.
Proffer 9.1 (Pre -Blast Surveys- Buildings) (I was not provided with a copy of
the exhibit referenced in this revised proffer. The exhibit must be included with the
Proffer Statement, and it should be reviewed by staff.)
Updated Continent: The exhibit is identified (Exhibit S).
Proffer 9.2 (Pre - Mining Surveys- Wells) I was provided with two documents
Which would seem to apply to this revised proffer, although only one exhibit is
referenced in the proffer. One document appears to be the procedures for the survey,
and would appear to be the document referenced in the proffer as an exhibit. The
second document is titled "Well Guarantee Agreement ". Tt is not clear if this
document is meant to be incorporated into the proffer. If so, it needs to be referenced
in the text of the proffer. Not knowing the status of this docLnnent, T have not
undertaken to do a legal review of it. However, 1 did note that it states that the
7
Applicant will "replace or replenish" a well negatively impacted in such a way "as to
render it unsuitable for its existing use ". This would seem not to cover a situation
where the output of a well (gallons per day) is decreased, but the well is still usable.
Updated Comment: The two exhibits are identified (Exhibits 6A and 6B).
Proffer 9.3 (Insurance) The staff should consider whether the $1,000,000.00
policy limits are adequate. In any event, given the long term of prospective mining
operations, the policy limits should be subject to an escalator, perhaps every five
years. This proffer should also contain a provision that the County will annually be
provided a certificate of insurance from the insurance carrier.
Updated Comment: The Applicant has revised this Proffer to address these
comments.
Proffer 14.2 (Trees) Based on my discussions with Mr. Lawson, it appears that
this proffer is meant to apply to trees located on portions of the parcels which are
not being rezoned. It would appear that all of Parcel 23 is being rezoned (except, now,
for the 8 -acre site), and, therefore, this proffer is meant to apply to the portion of
Parcel 109 which is not being rezoned. This proffer needs to be reworded to
specifically identify the location of the area of trees which is the subject of this
proffer. Also, the area or areas of trees referenced in this proffer should be located
and identified on the GDP, with a reference in the proffer to the GDP. (My review of
the Tax Map would indicate that none of the parcels adjoining Parch 23 or Parcel 109
are titled to the same entity which owns Parcels 23 and 109. Further, no other parcels
are made subject to these proffers. Therefore, this Applicant could not effectively
proffer to maintain trees on any parcels other than Parcels 23 and 109.)
Undated Comment: This proffer now references the GDP plat showing the
location of the trees.
Proffer 15 (Phasing) This proffer needs to reference the Phasing Plans made
a part of the GDP, and to proffer that the phasing will be substantial conformity with
the Phasing Plans of the GDP.
UpdatedConnnent_ Thisproffernowreferences the Phasing Plans oftheGDP.
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HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
A P A�ERSHIP OP PROI EWIONAL CORPORATIONS
STEVEN F. JACKSON May 22, 2000 P. O. BOX 848
WINCHESTER, VIRGINIA 22604-0848
Mr. John Riley, County Administrator HAND DELIVERED
County of Frederick
107 North Kent Street
Winchester, VA 22601
Re: O.M. Minerals (Chemstone) Rezoning Application
(RZ #03 -06)
Dear John:
I have been asked to provide my legal opinion as to whether the revised proffers
(revised after the public hearing) and the reduction in the acreage requested to be
rezoned in the above - referenced rezoning require a further public hearing
A public hearing was held on this rezoning application on April 23, 2008. The
Applicant's Proffer Statement was duly filed prior to the public hearing. Following
public continents at the public hearing the public hearing was closed. Action on the
rezoning application was continued, giving the Applicant the opportunity to address
issues raised at the public hearing.
Subsequently, the Applicant has filed revised proffers, and has reduced the area
requested to be rezoned from 639.13 acres to 394.2 acres.
I have reviewed the revised proffers and have provided an updated legal review
of the revised proffers.
ATTORNEYS A
AT LAW
WILBUR O. HALL (1892-1972)
THOMAS V. MONAHAN (1924 -1999) 7
7 6307 EAST MARKET STREET 9
9 EAST BOSCAWEN STREET
SAMUEL D. ENGLE L
LEESBURO, VIRGINIA W
WINCHESTER, VIRGINIA
O. LELAND MAHAN T
TELEPHONE 703 -777 -1050 T
TELEPHONE 540862U200
ROBERT T, MITCHELL, JR. F
FAK 54aes2 -4304
JAMES A. KLENKAR
PLEASE REPLY TO:
STEVEN F. JACKSON May 22, 2000 P. O. BOX 848
WINCHESTER, VIRGINIA 22604-0848
Mr. John Riley, County Administrator HAND DELIVERED
County of Frederick
107 North Kent Street
Winchester, VA 22601
Re: O.M. Minerals (Chemstone) Rezoning Application
(RZ #03 -06)
Dear John:
I have been asked to provide my legal opinion as to whether the revised proffers
(revised after the public hearing) and the reduction in the acreage requested to be
rezoned in the above - referenced rezoning require a further public hearing
A public hearing was held on this rezoning application on April 23, 2008. The
Applicant's Proffer Statement was duly filed prior to the public hearing. Following
public continents at the public hearing the public hearing was closed. Action on the
rezoning application was continued, giving the Applicant the opportunity to address
issues raised at the public hearing.
Subsequently, the Applicant has filed revised proffers, and has reduced the area
requested to be rezoned from 639.13 acres to 394.2 acres.
I have reviewed the revised proffers and have provided an updated legal review
of the revised proffers.
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HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
Mr. John R. Riley
May 22, 2008
Page 2
My review of the proffers indicates that the proffers and the reduction in
acreage of the property requested to be rezoned do not increase the intensity of the use
of the property from that on which the public hearing was held, and actually represents
a less intense use of the property, as 244.93 acres less of the property is sought to be
rezoned and would remain zoned RA, clearly a less intense use of that portion of the
property.
Virginia Code § 15.2- 2285(C) provides that before adopting an amendment to
the zoning ordinance, the governing body shall hold a public hearing thereon, "after
which the goveming body may make appropriate changes" in the proposed
amendment. Specifically as to rezoning amendments, § 15.2- 2285(C) states that "no
land may be zoned to a more intensive use classification than was contained in the
public notice without an additional public hearing ..." In interpreting this language
in § 15.2- 2285(C), the Supreme Court of Virginia in Board of Supervisors v. Pte
224 Va. 629 (1983) stated:
"When the governing body rezones to a use less intensive
than the one sought in the subject application, upon which
notice of hearing has been given, a second public hearing
is not required. This is because as a practical matter any
citizen interested in preventing the less intensive use would
or should be present to be heard at the hearing on the
request for the more intensive use."
Therefore, based on Virginia Code § 15.2- 2285(C) and the Pyles case, it is my
opinion that the Board of Supervisors is not required to hold another public hearing
before acting on this conditional rezoning application with the revised proffers and
reduced acreage.
Very truly yours,
, a
Robert T. Mitchell,
RTM/ks /glh
• •
Rezoning #03 -06 — O -N Minerals (Chemstone)
May 22, 2008
Page 3
** *STAFF REPORT FROM THIS POINT FORWARD HAS NOT BEEN MODIFIED SINCE
YOUR 04123108 MEETING * **
BOARD OF SUPERVISORS UPDATE AND PLANNING COMMISSION
RECOMMENDATION FOR 04/23/08 MEETING.
The Planning Commission had a considerable amount of discussion regarding this application and
numerous issues and concerns were raised by the Commission. Fifty -seven (57) citizens spoke during
the Public Hearing for this request. The Commission recognized conflicts with the goals of the
Comprehensive Policy Plan as identified in the staff report and acknowledged significant issues and
impacts associated with the request that had not been satisfactorily addressed by the Applicant.
These included the following:
- Potential impacts associated with the scope and more intensive use of properties.
- Historic resource concerns (HRAB)
-View shed coordination and mitigation
- Cultural Resource Surveys
- Environmental impacts.
- Rural view shed impacts.
- Transportation impacts on Route 625, its intersection with Route 11, and the Town.
- Potential groundwater, dust, and blasting impacts and controls on adjacent properties.
Ultimately, the Planning Commission forwarded a recommendation of denial to the Board of
Supervisors.
Following the Commission's review, the Applicant has provided a revised Proffer Statement. However,
the modifications in the Proffer Statement are relatively limited and focus upon recognition of the two
historical cemeteries discovered on the property and a phasing plan for the quarry.
In summary, while the O -N Minerals (Chemstone) rezoning application addresses several of the goals
of the Comprehensive Plan, more significant elements of the rezoning application have been identified
that should be carefully evaluated to ensure they fully address specific components of the
Comprehensive Plan. In addition, the Board of Supervisors should ensure that the impacts associated
with this rezoning request have been fully addressed by the applicant. These would include:
1) The Potential impacts associated with more intensive use of properties and the scope of the use.
2) The recommendations of the Historic Resources Advisory Board, particularly regarding view
shed coordination and mitigation and Cultural Resource Surveys
3) The potential groundwater, dust, and blasting and view shed impacts on adjacent properties.
4) Transportation impacts, particularly within the Town of Middletown.
Rezoning 403 -06 — O -N Minerals (Chemstone)
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This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in making a decision on this
application. It may also be useful to others interested in this zoning matter. Unresolved issues
concerning this application are noted by staff where relevant throughout this staff report.
Reviewed
Action
Planning Commission: April 5, 2006
Tabled 60 days
June 7, 2006
Recommended Denial
Board of Supervisors: April 23, 2008
Tabled 30 days
May 28, 2008
Pending
PROPOSAL To rezone 639.13 acres from RA (Rural Areas) District to EM (Extractive
Manufacturing) District with proffers.
LOCATION The Middle Marsh property is located east of Belle View Lane (Route 758), west and
adjacent to Eites Road (Route 625), and is bisected by Chapel Road (Route 627). The Northern
Reserve is bounded to the south by Cedar Creek and is west and adjacent to Meadow Mills Road (Route
624).
MAGISTERIAL DISTRICT Back Creek
PROPERTY ID NUMBERS 83 -A -109 and 90 -A -23
PROPERTY ZONING RA (Rural Areas)
PRESENT USE Undeveloped
ADJOINING PROPERTY ZONING & PRESENT USE
North:
RA (Rural Areas)
Use:
Residential
South:
EM (Extractive Manufacturing)
Use:
Shenandoah County
East:
RA (Rural Areas)
Use:
Residential /Agricultural
West:
RA (Rural Areas)
Use:
Residential /Agricultural
PROPOSED USES Quarry
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REVIEW EVALUATIONS:
Virginia Dept. of Transportation: The documentation within the application to rezone this property
appears to have little measurable impact on Route 757. This route is the VDOT roadway which has
been considered as the access to the property referenced. VDOT is satisfied that the transportation
proffers offered in the Global Stone Chemstone Corporation rezoning application dated June 13, 2005
address transportation concerns associated with this request. Before development, this office will
require a complete set of construction plans detailing entrance designs, drainage features, and traffic
flow data from the LT.E Trip Generation Manual, Seventh Edition for review. VDOT reserves the right
to comment on all right -of -way needs, including right -of -way dedications, traffic signalization and off -
site roadway improvements and drainage. Any work performed on the State's right -of -way must be
covered under a land use permit. This permit is issued by this office and requires an inspection fee and
surety bond coverage.
Fire Marshal Will not directly effect fire and rescue. Plan approval recommended.
Department of Inspections: Demolition permit required prior to removing any existing structures. No
additional comments required.
Public Works Department: Refer to page 4, Environmental Features: The discussion indicated that
an environmental report prepared by Science Applications International Corporation (SAIC) was
included with the impact statement as Appendix "A ". A copy of this report was not included with our
submittal. Please provide us with a copy of this report for our review. Refer to page 6, Soils /Geology:
The geology discussion should be expanded to include hydrogeology and the impact of the project on
the local groundwater. In particular, the subdivisions which rely on groundwater wells for their water
supply. General: The impact analysis has not addressed one very important item related to a rezoning
from RA to EM. That item is the impactor effect of blasting on adjacent residential buildings. This
issue should also be expanded to include the impact of dust on adjacent residential dwellings.
Frederick - Winchester Service Authority No comment.
Sanitation Authority The Frederick County Sanitation Authority supports this rezoning request. The
Authority will use these pits, when abandoned, as a source of water supply under an agreement with
Global Stone Chemstone Corporation, dated March 2, 2000. Larger pits will provide a more abundant
supply and reliable source of water. Larger pits are also more cost effective for the Authority to develop
as a water supply. That benefits the residents of Frederick County that depend upon the Authority for
water service.
Frederick - Winchester Health Department: The Health Department has no objection if there is to be
no increase in water use which would require sewage disposal.
GIS: No road/name requirements noted. Any road network that provides primary access to four or
more occupied business structures shall be names. Numbering will be assigned as applicable.
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Department of Parks & Recreation: No comment.
Frederick County Public Schools: Based on the information provided that states no residential units
will be part of the rezoning, there will be no impact to the school population upon build -out.
Winchester Regional Airport: Allowed uses under this rezoning should not effect airside operations
of the Winchester Regional Airport.
Town of Middletown: The Middletown Town Council provided the County with a resolution
opposing this rezoning request. Please see attached resolution dated May 8, 2006.
Frederick Countv Attorney: Please see attached correspondence from Mr. Bob Mitchell dated April
4, 2008 and April 11, 2008.
Historic Resources Advisory Board: Please seethe attached letter dated January 3. 2006, signed by
Candice E. Perkins, Planner 11.
Planning & Zoning:
1) Site History
The original Frederick County zoning map (U.S.G.S. Middletown Quadrangle) identifies the
subject parcels as being zoned A -2 (Agricultural General). The County's agricultural zoning
districts were subsequently combined to form the RA (Rural Areas) District upon adoption of an
amendment to the Frederick County Zoning Ordinance on May 10, 1989. The corresponding
revision of the zoning map resulted in the re- mapping of the subject property and all other A -1
and A -2 zoned land to the RA District.
2) Comprehensive Policv Plan
The Frederick County Comprehensive Policy Plan is an official public document that serves as
the community's guide for making decisions regarding development, preservation, public
facilities and other key components of community life. The primary goal of this plan is to
protect and improve the living environment within Frederick County. It is in essence a
composition of policies used to plan for the future physical development of Frederick County.
[Comprehensive Policy Plan. p. 1 -1]
Land Use
The property for which the rezoning is being requested is located within the Rural Areas of
Frederick County. This land use designation is defined in the Comprehensive Plan as all areas
outside of the designated Urban Development Area. The primary land uses in the Rural Areas
are agriculture and forests. The primary growth pattern consisting of widely scattered, large lot
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residential development. Many residents of Frederick County are attracted to the natural beauty
and special lifestyle found in rural portions of the County. Excessive or inappropriate
development in these areas can reduce their value and attractiveness. At the same time, the rural
areas play an important role in the County's economy through the income generated by
agriculture. [Comprehensive Policy Plan, p. 6 -55]
The subject property contains areas of prime agricultural soils which are generally located in the
limestone belt running north -south through the County. The Comprehensive Plan recognizes the
value to the County's economy of the limestone resources within the County and the extraction
of these natural resources. Within the Business and Industrial Area policies it is recognized that
policies are needed and standards should be developed concerning how to deal with new
requests for large mining operations [Comprehensive Policy Plan, p. 6 -11, 6 -721.
The Rural Areas Conclusion states that most of the County wilt continue to be rural areas used
for agriculture, forests, or low density residential uses. Certain types of business uses may be
located at scattered rural locations if safe access is available, and if adverse impacts on
surrounding uses and the rural environment can be avoided. These rural business and industrial
uses should be those that provided services to rural areas or that are more appropriate in rural
areas than urban areas. The locations for such business would include major intersections or
locations with recent or existing business activity [Comprehensive Policy Plan, p. 6 -60] Two of
the identified goals of the Rural Area policy are to maintain the rural character of areas outside
the UDA and to protect the rural environment [Comprehensive Policy Plan, p. 6 -76].
Environment
The Comprehensive Plan recognizes the need to promote environmental issues and protect the
environment in several locations. Specific goals of the Environmental Chapter include
identifying and protecting important natural resources and protecting the natural environment
from damage due to development activity. After describing the physical characteristics of the
County, the Environment Chapter of the Comprehensive Plan addresses Water Supply. Issues
concerning water quality, quantity, use, and protection of water resources are directly related to
land development activities. Water supplies are needed to support development, while surface
and groundwater are potentially affected by development activities [Comprehensive Policy
Plan, p. 5-3].
Major sources of water used in the County are groundwater and the North Fork of the
Shenandoah River. In 2000, the Frederick County Sanitation Authority entered a seventy year
lease with Global Stone Chemstone Corporation (Global). Global owns quarries at Clearbrook,
Middletown, and Strasburg. The lease provides the water from these quarries as a source of
supply and transfers title of the quarries to the Frederick County Sanitation Authority when the
mining operations are complete. The agreement has provided a viable long term source of water
for the County [Comprehensive Policy Plan, p. 5 -3]
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Groundwater is the major source of water supply in the rural portions of the County and
provides a potential alternative source for urban areas. In all, over half the population of the
County relies on groundwater as the sole source of water supply. The most productive aquifers
in the County are the limestone- carbonate aquifers [Comprehensive Policy Plan, p. 5 -3, 5 -4].
Hi.slory
The property for which the rezoning is being requested is located adjacent to Belle Grove and
the Cedar Creek Battlefield. Belle Grove and the Cedar Creek Battlefield are historic sites in
Frederick County that are listed on the Virginia Landmarks Register and the National Register
of Historic Places. Cedar Creek is identified as one of six battlefields of great national
importance that are located in Frederick County and Winchester. The Rural Landmarks Survey
of Frederick County further identifies both sites as potentially significant properties. In addition,
the 1992 National Park Service Study of Civil War Sites in the Shenandoah Valley shows a
portion of the property as being within the core battlefield of the Battle of Cedar Creek.
Significant portions of Cedar Creek, along with Third Winchester and Kernstown battlefields
provided the critical mass and the foundation for the Battlefield Network Plan which was
adopted by the Frederick County Board of Supervisors on December 13, 1995, and subsequently
incorporated into the Comprehensive Plan. Excerpts from the Battlefield Network Plan have
been provided for your information. The Battlefield Network Plan and the 1992 National Park
Service Study of Civil War Sites in the Shenandoah Valley were important catalysts for the
designation of the regional Shenandoah Valley Battlefields National Historic District which was
created by Congress in 1996. More recently, the efforts of the Shenandoah Valley National
Battlefields Foundation and the National Park Service continue to further historic preservation
efforts relating to the civil war battlefields located in Frederick County and the broader region.
To address the historic preservation policy goal of protecting the historic resources in Frederick
County, The Comprehensive Plan provides that the Historic Resources Advisory Board (HRAB)
review development proposals which potentially impact significant historic resources and that
the HRAB's information and recommendations are forwarded to the Planning Commission and
Board of Supervisors. The HRAB facilitated the involvement of the historic preservation
stakeholders in the review of this rezoning request. The recommendation of the HRAB
accompanies this report and will be discussed in greater detail later in the report. Identified
implementation methods for promoting the preservation and protection of Civil War Battlefield
resources include the preservation and protection of the historical appearance and character of
the key battlefield sites, their viewsheds, and their approaches, and the coordination of the
battlefield efforts with efforts to protect and preserve natural, visual, and environmental
resources [Comprehensive Policy Plan, p. 2- 11 -13].
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Transportation
The Eastern Road Plan of the Comprehensive Policy Plan does not cover this portion of the
County. The properties are located in the Rural Area of the County. A large portion of the roads
within the County are currently inadequate to meet the needs of the areas they serve. There is a
need to insure that improvements to existing rural roads continue to be made in a systematic
way and that new rural roads are provided as needed [Comprehensive Policy Plan, p. 7 -1].
In general, the Comprehensive Plan states that a Level of Service (LOS) Category C or better
should be maintained on roads adjacent to and within new developments within the County.
The applicants Traffic Impact Analysis (TIA) seeks to address the transportation impacts
associated with this rezoning request. However, the TIA does not account for the character of
the truck traffic and does not evaluate the heavy truck traffic's impact on the context of the
streets within the Town of Middletown.
3) Site Suitability /Environment
Both properties contain environmentally sensitive areas. The applicant has identified wetlands,
streams, and floodplains, and areas of mature woodlands on the properties. Exhibits have been
provided that depict these environmental features. Any disturbance of identified environmental
resources would occur in conformance with applicable County, State, and Federal regulations.
Cedar Creek forms the Southern boundary of the property. Cedar Creek, with its steep slopes,
cliffs, and associated floodplain is a significant environmental resource for Frederick County
and the adjoining Shenandoah County. Watson Run and Middle Marsh Brook are the existing
streams that traverse the subject properties. Both streams have associated floodplain
designations. It must be recognized that the proposed mining operation would most
significantly impact Middle Marsh Brook which would be relocated to allow for the excavation
of the mining pit.
The General Soil Map of the Soil Survey of Frederick County, Vir �inia indicates that the soils
comprising the subject parcels fall under the Frederick - Poplimento - Oaklet soil association.
Multiple soil types are located on the sites. The site contains soil types that are considered prime
agricultural soils. The characteristics of this soil type and any implications for site development
are manageable through the site engineering process. It is recognized that the limestone deposits
that underlie the properties provide the ideal geological conditions for Extractive Manufacturing
use. In addition, the most productive aquifers in the County are the limestone- carbonate aquifers
that are present in this area.
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4) Potential Impacts
Potential Impact Summary.
The County is familiar with the operation and practices of the existing Middletown Quarry
operation and recognizes that the purpose of the rezoning request is to enable the expansion of
the existing limestone ore extraction operation onto adjacent properties, utilizing this natural
resource. However, lacking a commitment that seeks to further define the scope of operations,
this application should be evaluated carefully and with the understanding that the use of the
properties could be more intensive than that described in the applicant's impact statement.
In evaluating the O -N Minerals (Chemstone) rezoning application it is very important to
recognize that the applicant has proffered a commitment to not engage in several land uses
permitted within the EM (Extractive Manufacturing) District. However, the use of the property
as enabled by the EM (Extractive Manufacturing) District, beyond those land uses which would
be eliminated, would have a major impact both on -site and off -site. Significant land uses,
meeting the applicable development standards, would be permitted within the district based
upon the application as submitted.
Consideration should be given to the maximum possible intensity of EM (Extractive
Manufacturing) use identified in the County's Zoning Ordinance (a copy of the EM(Extractive
Manufacturing District has been provided for your review). The impacts associated with this
rezoning request may be significant and should be understood. The applicant should be prepared
to continue to address the mitigation of the impacts associated with this rezoning request, in
particular, those impacts and issues identified by the reviewing agencies, Commission, and
Board of Supervisors.
Guarantees in the form of proffered conditions have not been offered to ensure that the impacts
generated by this application are limited and consistent with the discussion in the Impact
Statement. The applicant has the ability to address this through the Proffer Statement. When
considering the acreage potential, the dimensional requirements, and the EM District uses, it is
possible that facilities located adjacent to and with access from Chapel Road could result, as
could facilities located within 50 feet of the adjacent RA zoned property surrounding the site.
The scope of the impacts could exceed the projections identified and accommodated in the
impact statement and TIA.
g Frederick County's Zoning Ordinance and Zoning Amendment Process seek to ensure that the
impacts of a particular Zoning Amendment are fully identified, analyzed, and addressed before
an amendment is approved. It is essential that the impacts are known prior to the rezoning, so
the mitigation or avoidance of identified impacts can be recognized in the request and proffer
statement. In general, the proffer statement and generalized development plan provide the
Applicant with the opportunity to further define the scope of the land use activity on the
property. Limiting the potential acreage of development, new facility construction, and further
limiting the type of uses on the property would limit the potential impacts of the EM
development of this property.
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It is evident that many of the potential impacts of this request are unknown and have not been
clearly identified in the impact analysis. The potential scope of the impacts are not fully
understood. The most significant example of this with this application is the historic and
cultural resources.
A. Historic Resources
The Frederick County Historic Resources Advisory Board (HRAB) considered the O -N
Minerals (Chemstone) rezoning application during their December 20, 2005 meeting. Invited to
attend the meeting by the HRAB were representatives of the various historical and cultural
groups considered stakeholders in relationship to the historical resources in the vicinity of the
rezoning. The following stakeholder groups were represented: Belle Grove, Cedar Creek
Battlefield Foundation, National Park Service, and the Town of Middletown.
The HRAB reviewed information associated with the 1992 National Park Service Study of Civil
War Sites in the Shenandoah Valley information provided by the applicant as well as
information provided by various groups that were in attendance of the meeting. The 1992
National Park Service Studv of Civil War Sites in the Shenandoah Valley shows a portion of the
property in question as being located within the core battlefield of the Battle of Cedar Creek.
The property also contains the site where the Nieswanger Fort once stood.
Historic Resources Advisory Board Concerns
The HRAB expressed concern that the proposed rezoning was not protecting the viewshed of the
battlefield and the Belle Grove property as well as the archeological resources present on the Cedar
Creek Battlefield and the site of the Nieswanger Fort. The HRAB felt that the applicant still needs
to address many issues with this rezoning before it should be considered by the Planning
Commission and Board of Supervisors.
The HRAB expressed that they could support the approval of this project if the suggestions
offered as a result of the HRAB meeting are considered by the applicant in order to mitigate
impacts on the historic resources (Please see HRAB let[er dated January 3, 2006, signed by
Candice E. Perkins, Planner II).
The applicant has modified their rezoning application in an effort to address two of the nine
comments suggested by the HRAB. However, many of the valid recommendations offered by the
HRAB have not been addressed. Two of the most significant and constructive comments offered by
the HRAB (the first two comments in the letter from the HRAB) should be further satisfied to
ensure that the potential impacts associated of the rezoning are appropriately addressed. Presently,
they have not been addressed in a manner that satisfies the concerns expressed by the HRAB.
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The opportunity has been provided for the applicant to work with the identified stakeholders, Belle
Grove, Cedar Creek Battlefield Foundation, and the National Park Service, to prepare a view shed
mitigation plan that addresses the unique view sheds and approaches critical to their particular
points of view. Understanding their points of view, a tailored approach that integrates the natural
landscape with customized berming and landscaping would promote an approach to the view shed
management that mitigates the visual impacts of the mining operations in an effective manner. A
customized approach to the buffering, berming, and landscaping would be more appropriate than
the present approach proposed in the proffer statement. In certain locations, particularly on the
southern property (90- A -23), designating areas of non disturbance would preserve the existing
landscape and by taking advantage of the topography effectively mitigate the visual impacts of the
mining operations. A strategic approach to the location and size of the waste stockpiles identified
on the exhibits should also be a consideration. Current practice at the existing facility with regards
to the stockpiling of overburden should be avoided in the future. Approaches to addressing the
visual impacts of the proposed operations should be more detailed and should be incorporated into
the proffer statement.
The applicant has provided for the dedication of approximately eight acres as an historic reserve.
This is in an area where archeological resources associated with the Belle Grove Plantation have
previously been identified. A time frame has been provided for the dedication of this acreage.
However, an appropriate recipient has not been identified in the latest proffer statement.
Previously, the Applicant had proffered the dedication to Belle Grove. This is the entity
recommended to be the recipient by the County Attorney.
The HRAB suggested that a Phase 1 Archeological Survey should be done on the property focusing
on core battlefield areas and the site of the Nieswanger Fort. If warranted subsequent studies should
be performed. The applicant has proffered to complete a Phase I Archeological Survey of the
property in the future. However, no commitments have been made beyond a Phase 1 Survey.
Further, this survey is proffered to occur after the rezoning of the property rather than before.
The goal of the HRAB comments is to enable the mining operations to expand in a manner which
is not detrimental to the historical context of the surrounding landscape. Further, to promote an
approach that is mutually beneficial to the applicant, historic preservation stakeholders, and the
adjacent community. The HRAB comments provide the opportunity for O -N Chemstone to
continue to address the needs of the community, minimizing the impacts of their operations in a
manner that is compatible with the surrounding community, in a manner described in their Impact
Statement.
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Subsequent to the Planning Commission's review of this application, two historic cemeteries
have been identified by the Applicant, the historic Tabler and Nisewander Family Cemeteries.
A report regarding these cemeteries is provided with your agenda
B. Transportation
Much of the analysis in the Impact Statement is based upon the continuation of the existing
practices of the Middletown quarry operation. The Traffic Impact Analysis (TIA) and the impact
statement suggests that the vehicle trips would increase by more than double from the existing
count of 506 vehicles per day to 1,305 vehicle trips per day. A more significant increase in
Global Stone truck traffic is anticipated in the TIA from 19 trucks per day to 80 per day and an
increase of 56 customer truck trips per day. It should be recognized that a different combination
or additional uses may further increase the traffic impacts associated with this request. As
evidenced at the existing Strasburg facility, additional traffic impacts could be experienced from
a more intensive use of the property than is currently envisioned. The Applicant has proposed a
restriction to the truck traffic. However, this would still enable a considerable amount of traffic,
particularly, heavy truck traffic. In addition, the mechanism to administer this proffer is
problematic to the County as it creates an undesirable, ongoing enforcement issue. This should
be avoided.
Primary access to the site is depicted as being from the existing site entrance along Route 625
(5`" Street) to U.S. Route 11, Main Street in the Town of Middletown. The Town has expressed
their opposition to the increase of truck traffic through Middletown. Previously, a significant
amount of discussion regarding the inter -site transfer of materials via a conveyor belt system is
offered in the impact statement. This approach should not presently be part of the consideration
of this rezoning request. As demonstrated in the TIA, a level of service C or better would be
achieved at the intersection of Route 11 and Route 625 (5` Street). Consideration should be
given to the character of the traffic generated from the facility and utilizing the aforementioned
intersection. The traffic will be predominantly large, heavy truck traffic which would have a
greater impact on the rural and small town context of the streets within Middletown. Noise and
dust from the heavy truck traffic has been an issue in the past and would likely continue to be in
the future.
B. Mining Operations and Community Impacts
Associated with mining operations is the potential for a variety of impacts that may affect
surrounding properties and land uses. The Division of Mineral Mining of the Virginia
Department of Mines is responsible for permitting mining operations within the State of
Virginia including the operations of O -N Chemstone at the Middletown Quarry. The EM
(Extractive Manufacturing) District of the Frederick County Zoning Ordinance provides
additional local requirements that seek to minimize the impacts associated with Extractive
Manufacturing uses. Provisions and performance standards are provided to protect surrounding
uses from adverse impacts. Appropriate landscaping or screening may be required by the Zoning
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Administrator or Planning Commission within any required yard setback area in order to
reasonably protect adjacent uses from noise, sight, dust, or other adverse impacts.
The County Engineer reviewed the request and provided input expressing concerns regarding
the geological impacts and the potential hydrological impacts, in particular the impact of the
project on the local groundwater which includes the adjacent subdivisions that rely on
groundwater wells for their water supply. With regards to the geology discussion, the impact or
effect of blasting on adjacent residential buildings should be fully considered as should the
impact of dust from the mining operations on adjacent residential dwellings. The Impact
Statement did not fully address these potential impacts. As a result of the input of the County
Engineer, the applicant has included proffers that seek to address the groundwater, dust, and
blasting concerns associated with this rezoning request. In addition, mechanisms have been
proffered to help resolve issues that may occur in the future.
In addition to the potential impacts of the proposed mining operations on the view shed from the
historical perspective, serious consideration should be given to the visual impacts on the rural
landscape from the perspective of the adjacent residential landowners and from the perspective
of residents and visitors traveling along Chapel Lane which bisects parcel 83 -A -109 and the
proposed mining operation.
Summary of Impacts:
- Potential impacts associated with the more intensive use of properties
- Historic Resource Concerns (HRAB)
-View shed coordination and mitigation
- Cultural Resource Surveys
- Environmental Impacts
- Rural view shed.
- Transportation impacts on Route 625, its intersection with Route 1 1, and the
Town.
- Potential groundwater, dust, and blasting impacts and controls on adjacent
properties.
5) Proffer Statement— Dated March 18, 2008 (Previous revisions dated June 13, 2005, January
16, 2006, February 8, 2006, February 17, 2006, and August 28, 2006)
Please see the comments provided by Mr. Bob Mitchell regarding this latestproffer Statement
April 4, 1008 and April 11, 2008.
The applicant has provided that the property shall be developed with EM (Extractive
Manufacturing) Land uses. The Applicant has further restricted several EM (Extractive
Manufacturing) land uses.
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With regards to site development, the applicant has attempted to limit access to the existing site
entrance, has proffered distance buffers, earthen berms, and landscaping to minimize the
impacts to the view shed of the surrounding community. It should be understood that no
minimum standards have been offered to ensure that the site development proffers will
minimize the potential impacts of the mining operations on the surrounding community and
address the expressed concerns of the HRAB.
An eight acre historic reserve to be dedicated to a recognized historic group has been proffered
by the applicant. The County Attorney has recommended that this entity be Belle Grove.
A limited Phase 1 Archeological Survey has been proffered by the applicant. No commitments
have been made beyond a Phase I Survey. Further, the survey would only occur following
the approval of the rezoning. The resources, and impacts to these resources if any, should be
known prior to rezoning.
The Applicant has proffered to preserve the two cemeteries that were identified on the property.
These cemeteries were only recognized following the public input provided during the Planning
Commission review process. The Applicant has proffered to preserve these resources within the
context of the mining operation.
The Applicant has proffered to keep its mining operations at least 200 feet from Cedar Creek.
No other commitment regarding the protection of this resource has been provided.
The applicant has guaranteed to the Frederick County Sanitation Authority rights to the
groundwater resources in accordance with existing agreements between the applicant and the
FCSA.
The applicant has stated their intent to monitor, minimize the impacts, and remediate any
impacts associated with groundwater, dust, and blasting; has proposed to perform voluntary pre -
blast surveys on adjacent properties and wells; and has included a bonding mechanism as
security.
An additional proffer has been included following the Planning Commission's review which
seeks to address the phasing of mining activities. Mining in the Northern Reserve would occur
immediately following the approval of the rezoning; mining in the area south of Chapel Road
would commence no earlier than ten years from the date of the rezoning; and mining in the area
north of Chapel Road would commence no earlier than twenty years from the date of the
rezoning.
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APPENDIX A — PLANNING COMMISSION REVIEW INFORMATION
STAFF CONCLUSIONS FOR 04/05/06 PLANNING COMMISSION MEETING:
The O -N Minerals (Chemstone) rezoning application addresses many of the goals of the Comprehensive
Plan as described in the staff report. Elements of the rezoning application have been identified that
should be carefully evaluated to ensure they fully address specific components of the Comprehensive
Plan. In addition, the Planning Commission should ensure that the impacts associated with this rezoning
request have been fully addressed by the applicant. The Planning Commission should pay particular
attention to the following:
1) The Potential impacts associated with more intensive use of properties.
2) The recommendations of the Historic Resources Advisory Board, particularly regarding view
shed coordination and mitigation and Cultural Resource Surveys
3) The potential groundwater, dust, and blasting and view shed impacts on adjacent properties.
4) Transportation impacts, particularly within the Town of Middletown.
PLANNING COMMISSION SUMMARY & ACTION OF THE 04/05/06 MEETING
Planning Staff provided an overview of the application. This was followed by a presentation by the
applicant of their project. During the Planning Commission's initial discussions, Commissioners
wanted to know which State agency, the Department of Mines and Minerals (DMM) or the Department
of Environmental Quality (DEQ), was responsible for overseeing aquifer protection, particularly, the
quality and quantity protection measures. Commissioners suggested that a fund or bond be set up in
escrow if a determination of responsibility for well damage had to be contested. In addition, they
suggested that an agent of the County be assigned as a designated mediator in remediation situations.
Berms were discussed and the case was made for smaller berms with flatter slopes in order to be more
viewshed - friendly. Higher berms would be necessary in certain limited cases, while a minimum height
was also suggested to conceal the height of a truck. It was suggested that the language should state,
"...an average of 30 feet with higher berms as required for proper viewshed conditions."
Commissioners commented that the applicant's proffer statement seemed to be too general and they
would have preferred to see more specificity, particularly dealing with the placement and monitoring of
seismographs the eight -acre reserve area for Belle Grove, a detailed plan showing the berms, a detailed
phasing plan, and buffer details.
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Due to the Commission's Bylaws requiring a mandatory 11:00 p.m. adjournment, the Planning
Commission did not have enough time to hold the public comment portion of the hearing. The
Planning Commission unanimously agreed to table the rezoning for 60 days, until .tune 7, 2006.
(All members of the Planning Commission were present.)
PLANNING COMMISSION UPDATE FOR 06/07/06 MEETING:
Staff has not received any materials from the applicant in modification of the O -N Minerals Rezoning
Application, RZ03 -06. The concerns and issues identified during the Planning Commission's initial
discussions regarding this application, and the issues identified in the initial staff report, remain un-
addressed.
The Public Hearing for this application was not held during the 04/05/06 Planning Commission meeting
due to time constraints. As a result, the Commission should satisfy the Public Hearing requirements at
the 06/07/06 meeting. The information offered during the Public Hearing should also be a consideration
of the Planning Commission during their evaluation of this rezoning application.
Since the initial 04/05/06 meeting at which the O -N Minerals Rezoning Application was considered,
staff has been provided with numerous correspondence regarding this rezoning application. This
additional public comment, in addition to an updated comment in the form of a resolution from the
Town of Middletown, is included with this rezoning application package for your information.
In addition, at the request of the applicant, staff met with Mr. David Benner, Virginia Department of
Mines, Minerals, and Energy to discuss the role his department plays in permitting and monitoring
proposed and existing operations such as the Chemstone Middletown facility. Staff is confident that the
Department of Mines, Minerals, and Energy will effectively carry out their responsibilities and duties.
However, their responsibilities and duties are limited to the permitting and monitoring of the mining
operations. It was made very clear that coordination with other State Agencies through the permitting
process was minimal. Further, it was made clear that the Department's involvement with the adjacent
property owners was limited and that in no way does the Department take a position in resolving
conflicts that may arise between adjacent property owners and mining companies. The responsibility of
addressing impacts that may be realized by properties in the vicinity of mining operations would rest
with the affected property owner. The locality would have the responsibility of monitoring impacts and
enforcing compliance in cases where the locality accepted proffered conditions aimed at mining
operation impact mitigation.
Please find attached to end of this report additional correspondence from various sources including The
Town of Middletown, L. Preston Bryant, Commonwealth of Virginia Secretary of Natural Resources,
and Mr. Woodward S. Bousquet.
0 0
Rezoning 903 -06 — O -N Minerals (Chemstone)
May 22, 2008
Page 18
PLANNING COMMISSION SUMMARY & ACTION OF THE 06/07/06 MEETING
Fifty -seven citizens spoke at the Planning Commission's public hearing on June 7, 2006. Of the 57
citizens, 55 persons spoke in opposition to the rezoning and two spoke in favor of the rezoning.
Included in the 55 persons who spoke in opposition were representatives of various historic,
environmental, and state agencies, such as the Cedar Creek Battlefield Foundation, the Belle Grove
Plantation, the National Park Service at Cedar Creek and Belle Grove National Historic Park, the
Headwaters Conservation for the Potomac Conservancy, and the Greater Middletown Business
Association. Many speakers belonged to a citizens group called Preserve Frederick, some were local
business owners, and other speakers were simply residents of Middletown and the surrounding area.
Letters were received from the Commonwealth of Virginia's Secretary of Natural Resources, the
Shenandoah Valley Battlefields Foundation, the National Trust for Historic Preservation, and the Belle
Grove Plantation, along with numerous citizen letters and petitions. Following is an abbreviated
summary of the concerns raised by speakers in opposition to the rezoning.
Representatives for the historic, environmental, and state agencies expressed concern that the request to
expand mining operations and change the zoning on 639 acres would negatively impact the historic
view shed and landscape. Agency representatives encouraged the quarry to undertake a comprehensive
view shed analysis and present a written plan and timeline to mitigate, remove, screen, and /or plant the
existing large waste pile to the northwest of Belle Grove, which was visible from both the Belle Grove
and Cedar Creek property and was already problematic in terms of the historic landscape. Public health
and safety issues were raised concerning increased truck traffic through Middletown and along Valley
Pike. Concern was raised that the increase in heavy commercial vehicles would envelope the
community in constant background noise and added air pollution, which currently deposits a grey layer
of fine limestone particles and diesel soot on most exterior surfaces. Problems with existing truck
traffic through Middletown were expressed, noting the challenge faced by both residents and tourists
alike. The Greater Middletown Business Association noted that Middletown's retail businesses derive
the majority of their income from tourism and it was critical that the community continues to be a
desirable destination for tourists. Concern was expressed for the air quality and fugitive dust emissions,
noise, and vibration from blasting, particularly to Belle Grove. Regarding the environment, a recent
report published in conjunction with Shenandoah University, detailed the ecological and historic
context of the Cedar Creek Watershed. The report revealed the existence of sensitive eco- systems,
supporting a variety of unique plant species and mature hardwood forests on adjacent property. The
possibility that similar ecosystems and rare plant communities could exist on the Chemstone property
was raised, along with the concern about the impact of a larger and more intensive quarry operation, or
other permitted uses under EM District zoning, on the water quality and aquatic life in Cedar Creek.
Efforts to preserve or restore forested buffers along Watson Run, Middle Marsh Brook, and Cedar
Creek were encouraged to prevent any influx of water into these waterways which could choke off the
diverse aquatic life. Terrestrial and aquatic habitats within the proposed project's area were identified
and concern was raised that state - threatened and endangered wildlife species, such as the bald eagle,
wood turtles, and various bird species could be affected.
Rezoning 903 -06 — O -N Minerals (Chemstone)
May 22, 2008
Page 19
Speakers from the citizens group, Preserve Frederick, were in opposition to the rezoning and raised
many issues regarding the inadequacies of the application, non - conformance with the County's
Comprehensive Policy Plan, impacts to water, as well as quality of life, air quality, public health, traffic,
the environment, and negative economic impacts. Some of the specifics of the public's concerns
included:
The Comprehensive Plan states that measures aimed at increasing the appeal of areas to tourists and
businesses need to be developed and implemented; however, the sharp increase in industrial traffic and
pollutants from the mining operation will not create small -town ambiance, which is the key economic
ingredient to the success of Middletown's businesses and tourism. Negative visual impacts, traffic, and
noise will erode the Town's assets of Main Street, the National Park, the Battlefield, and its rural
character. Further, over 1,300 dump truck trips per day will in noway help to minimize congestion of
the main corridor to this quaint, one -light town. Nothing was more contradictory to the guidelines of
the Comprehensive Policy Plan than a heavy, dirty industrial corporation operating within a rural,
historic national park and battlefield community; it was a clearly incompatible land use. Local business
owners were concerned that the destruction of the landscape, the dust, and the increased truck traffic
with its noise and fumes, will have a very negative affect on out -of -town visitors and will jeopardize
their businesses and livelihoods. Roads in this area are not constructed for large amounts of heavy truck
traffic and over -sized vehicles.
Numerous health issues were raised; expansion of quarry mining operations will be detrimental to
public health and safety. Operations will be too close to residences, increased safety hazards were
named dealing with fly rock from blasting, increased truck traffic, and safety to children. It was noted
that truck traffic emissions will have severe health consequences for the community and statistics were
quoted indicating that diesel exhaust is one of the greatest public health risks of all air pollutants. It was
reported that diesel combustion releases fine particles and gases, called soot, which are typically smaller
than 2.5 microns; this fine particulate matter is an air - quality contaminant regulated under the Clean Air
Act. Diesel soot contains many toxins and can be inhaled into the deepest parts of the lungs where it is
able to enter the bloodstream; a considerable number of associated respiratory illnesses were named.
A police officer spoke about road traffic safety. He expressed concern about quarry trucks, some of
which are 75 -feet long and weighing up to 80,000 pounds, which can often be seen exceeding the
posted speed limit and barreling down back country roads with tight curves, unsafe shoulders, and hills.
It was noted that families travel these roads, along with school buses, the elderly and teenagers with
new licenses. It was noted that tripling the amount of heavy industrial traffic through the countryside
would be a recipe for disaster.
Comments from a retired, professional geologist noted that the extension of limestone mining west and
north of Middletown could bring detrimental health consequences to people living on farms and
residences in proximity to the operation. In addition to occasional fly rock, blasting will open existing
rock fractures or develop new fractures that could cause nearby wells to dry up and /or drain fields to
malfunction. Fracturing induced by blasting could release residual clays from sinkholes and voids,
thereby fouling water wells; operations of crushing, grinding, and loading brings the potential for large
accumulations of dust and hazardous metals.
0 0
Rezoning #03 -06 — 0 -N Minerals (Chemstone)
May 22, 2008
Page 20
Citizens in the health profession expressed concern for water -borne pollutants and toxic elements; tests
on local well systems from 1995 through 2006 revealed occasional high levels of toxic elements,
including nitrate, cadmium, iron, and lead. Percentages of the elements found were quoted and the
health problems associated with these levels were named. Other citizens in the health profession
expressed concern for air -borne pollutants and fine particulate matter generated by limestone mining
operations and extraction. Because of the westerly- prevailing winds, it was believed that residents of
Middletown and students at Lord Fairfax Community College and Middletown Elementary School
would be directly exposed to far greater emissions from the blasting, extraction, and refining of
minerals. Health problems such as asthma, chronic obstructive lung diseases, emphysema, and chronic
bronchitis were mentioned. It was noted that O -N Minerals was already the known leading contributor
for emissions.
Some residents stated that when they purchased their property years ago, they approached quarry
operators about their plans for this property and were told it would be left as a buffer area. Residents
did not believe view shed mitigation would shield their homes from quarry dust, dirt, and particle
matter. The applicant had been quoted as saying that 10 million gallons of water a day would be
pumped from the property and residents were concerned about their private wells and local springs.
Liability issues were raised and who would pay for potential damages. Devaluation of properties was
an issue. The fact that O -N Minerals had not offered any restrictions on other EM District uses was a
concern. A citizen spoke of a 125- year -old family cemetery located north of Chapel Road, near an
abandoned farmhouse.
Citizens asked why the County continued to allow residential development to occur all through this part
of the valley, if they knew the property could be mined in the future. It was noted that Middletown's
old, rich history and architecture are not conducive to industrial infrastructure changes. One citizen
commented that numerous quarry companies have owned this land over 50 years; he questioned why
they waited all this time to apply for a rezoning. Middletown was not the same place it was 52 years
ago and considerable changes have taken place since the 693 acres were sold to Chemstone. The Town
now has a national historic park; it has a thriving national heritage of historic importance, and a rapidly
growing number of residential developments.
The financial status of O -N Minerals was commented on by a few of the citizens. They quoted
operating figures about the company which indicated O -N was functioning under a considerable debt
load and had to sell assets. Also raised was the fact the applicant was a co- defendant in cases alleging
asbestos - induced illnesses and silica. Citizens questioned how this could affect the company's financial
future and their obligations to meet proffers or successfully resolve future cases. Citizens asked what
recourse would be available, if the company failed to perform promised proffers. Liability issues on
many levels were raised as a future problem.
The Frederick County Sanitation Authority's connection to the land use application was raised
numerous times and citizens expressed the need for all agreements to be thoroughly examined. Citizens
Rezoning 903 -06 — O -N Minerals (Chemstone)
May 22, 2008
Page 21
commented on all of the costs the FCSA had agreed to pay, including the costs for rezoning the land, for
relocating ball fields, for installing and maintaining monitoring wells, restitution for water loss from
nearby wells, etc., and to hold Chemstone harmless from all issues raised by regulators or private
citizens. It was noted that FCSA would then have a water storage pit with which to partially serve the
UDA and Chemstone would not have the expense of filling the pits and reclaiming land.
Many of the residents said they moved to Middletown to escape large commercial developments and
traffic problems, and residents feared these same negative impacts would result from this rezoning and
affect the quality of life they have become accustomed to. Finally, citizens called for the Commission
to vote on the application at the end of discussion and not to table the application.
Commission Discussion:
The Commission had a considerable amount of discussion and numerous issues were raised.
Commission members asked the staff to review the State's role in mediating disputes and dealing with
various off -site impacts. Staff responded that discussions with DMME had determined that while the
DMME regulates the operation of the mining company, along with permitting and safety issues, the
scope of their involvement beyond the property or permit is very limited. In fact, the DMME is
reluctant to become involved with any of the issues that may revolve around blasting or water issues.
Commission members asked if O -N Minerals had submitted a CPPA application by the June 1, 2006
deadline or if the land subject to the rezoning was in any way planned for something other than rural
areas land use, such as with a text amendment. Staff replied that no comprehensive plan amendment
had been submitted, nor was this area being considered for another planned land use.
Commission members asked staff about remediation requirements. Staff responded that there were
considerable requirements by the DMME; however, there were many opportunities to modify the
requirements and approach things in a different manner. Commission members assumed that if the
property changed hands after the land had been mined, as in the possibility that it would be turned over
to a quasi - public entity, such as the FCSA, then the regulations would change. It was noted that FCSA
was not in the business of land remediation.
Commission members stated that if the rezoning was tabled, they would want a clear understanding of
the agreement between the FCSA and O -N Minerals before it came back to the Commission again. Not
only did they want to have a clear understanding, but thought it was important for the community
because of statements that could be interpreted in different ways and could have significant liability, not
only on surrounding property owners, but on the FCSA.
Commissioner Thomas summarized the issues he believed were significant in the review of the
rezoning. Many of the other Commissioners agreed with those issues, as follows: The traffic impact
analysis submitted was woefully inadequate and needs to be redone. The use of numbers of vehicles for
trip generation in the traffic impact analysis is inappropriate when 60 -70% of the traffic will be 40 -ton
dump trucks and will not result in an accurate analysis. A route analysis needs to be done which
examines the geometries and conditions of the road, in particular, the impact of 800 -900 severely -
loaded 40 -ton trucks on the road itself. A strip map should be included so the community understands
the vehicle traffic pattern that will occur with heavily - loaded vehicles from the quarry, through
Rezoning 40') -06 — O -N Minerals (Chemstone)
May 22, 2008
Page 22
Middletown, and onto their destination. The environmental impact analysis is lacking; there was
nothing within the environmental impact analysis that addressed air quality. A particulate matter study
is needed with a wind -rose analysis showing the distribution of the particulate matter the levels of
particulate matter that will be experienced by the surrounding residents, and the particulate matter size
that will be distributed. In light of all the nearby farms and livestock, information is needed on how the
particulate matter may affect surrounding agricultural and orchard land uses; for example, the affect of
particulate matter on grazing cattle and the pollination of orchard fruit trees. In addition to outside dust,
dust inside homes also needs to be addressed. Particulate matter of this size will get inside new homes
as well as older homes and all homes within a couple miles will have a significant dust problem within
the home. Regarding the subject of determining liability for water wells and blasting damage, how will
the applicant monitor existing wells from a quality and quantity standpoint and how will the existing
homes be inventoried and evaluated. A plan should be developed with a process for damage assessment
and appeals that doesn't require surrounding homeowners to invest an extensive amount of money
hiring lawyers and suing. Due to the significant size of this project, a bonding process above the
minimum State standards is needed to protect the surrounding homeowners against potential future
damages and liabilities, if the company has financial difficulties and moves out of the area. No
information was provided by the applicant regarding meetings with surrounding property owners;
neighborhood meetings should take place to convey the applicant's plan, how the property owners will
be protected, and what the applicant's blasting plan will be. Since the biggest potential problems will
come from areas outside of the quarry site, and the State only regulates on -site, permitted areas,
something significantly more than the minimum State - regulated requirements is needed. For example,
one seismograph in a blasting area with this kind of topography is substantially inadequate; there should
be three -to -five for every blasting plan. The liability for surrounding homeowners for water wells and
blasting needs to be substantially expanded. The applicant needs to examine allowed uses in an EM
area and consider what is realistically going to be done there and the uses that are not going to be
needed should be taken out through a proffer to avoid confusion by adjoining property owners about
what can be done here. Another significant item is the life of the quarry operation; specifically, will it
be a five -year operation or a 50 -year operation, and what is the applicant's phase plan for development
of the quarry and the extent of that development. Is it the applicant's intent to proceed down the Valley
with this operation and are there plans for remediation of areas left behind as the operation moves
along, or are the areas left open through the entire process. Has the applicant considered a mining
operation versus an open quarry? Although a mining operation would have less impact on the visual
area and produce less dust, it still has the same amount of impact on blasting and water wells.
In addition, issues raised by other Commissioners included a desire for some type of bonding process
established for well issues, so that the burden of proof did not fall on local residents. They wanted to
see increased buffer distances to keep the operation further away from residences. The subject of the
unsightly appearance of dirt piles that may exist for 25 to 50 years was also raised. In addition, they
wanted the applicant to revisit the issues raised by the HRAB, the Town of Middletown, and Public
Works.
Some Commission members doubted that the applicant could address the issues raised in 90 days or a
year in terms of the kind and amount of analysis that was needed in this case. The comment was made
that if the applicant did proceed with all of the studies, they were not sure whether the results would
Rezoning 403 -06 — O -N Minerals (Chemstone)
May 22, 2008
Page 23
make a difference, because fundamentally, this was a land use issue. It was pointed out that the time for
expansion of this quarry and the industrial use of these particular properties has long passed; the
surrounding community is clearly residential at this point in time. It was noted that the Commission
had previously asked for additional information 60 days ago and nothing was produced. Commission
members believed the rezoning needed to be considered in the spirit of the Comprehensive Policy Plan.
Members commented that the public's presentation was far better than what was provided by the
applicant, in terms of the information provided and organization. Commissioners believed the concerns
raised by the public were valid and required mitigation, which could only be accomplished by denying
the rezoning; they were adamant that no amount of proffers could make this proposal acceptable for
them. Other comments included the observation that the application was not clear as to whether the
operation would be limited to an active core area or even how much quarrying the applicant planned to
do. It was suggested that a revised application and proffer could result in a minor amount of rezoned
land with protections; it was pointed out that the residents and historic areas have no protections today.
Commission members had concerns about sending the application forward to the Board of Supervisors
in its present state because it was so incomplete and lacking that the Board would have nothing to
review. Those Commission members were concerned about doing a disservice to both the Board and
the citizens without allowing the applicant to go back and improve the application with a phasing plan,
or offering a commitment to a smaller area, or providing protections for surrounding areas. Still other
Commissioners argued that they did not hear anything during the public hearing that made them think
something could be done with this proposal to make it compatible as a land use.
A motion to recommend denial of the rezoning application was made, seconded, and passed by a
majority vote, as follows:
YES (TO REC. DENIAL) Watt, Morris, Oates, Wilmot, Ours, Kriz, Kerr, Mohn
NO: Unger, Manuel, Light, Thomas
(Note: Commissioner Triplett was absent from the meeting.)
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REZONING APPLICATION FORM
FREDERICK COUNTY, VIRGINIA
be completed hy.Planning
Fee Amount Paid
iing Amendment Num )D-09 Date Received =
Hearing Date ?{�5 ab i_ D BOS hearing Date i
The folloiving inforrrurtion shall be provided by the applicant:
All parcel identification numbers, deed book and page numbers may be obtained from the Office of
the Corninissioner of Revenue, Real Estate Division, I07 North Kent Street, Winchester.
1. Applicant:
Name: 0 -N Mine (Chemstone)
Telephone: 540 - 465 -6819
Address: 1696 Orand Road P.O. Box 71
Strasburg, Virginia 226
2. Property Owner (if different than above)
Name:
Telephone`
Address:-
3. Contact person if other than above
Name, P atrick Sowers, P.E. (PHR +A) Telephone: 540- 667 -21 39
4. Checklist: Check the following items that have been included with this application.
Location map x Agency Comments X
Plat X Fees X
Deed to property" X Impact, Analysis Statement X
Verification of taxes paid X Proffer Statement X
10
0
5. The Code of Virginia allows us to request full disclosure of ownership in relation to
rezoning applications.
Please list below all owners or parties in interest of the land to be rezoned:
O -N Minerals (Chemstone)
6. A) Current Use of the Property:
B) Proposed Use of the Property:
Undeveloped
Quarry
7. Adjoining Property: See Attached
PARCEL ID NUMBER USE
ZONING
8. Location: The property is located at (give exact location based on nearest road and distance
from nearest intersection, using road names and route numbers).
The subject parcels are situated generally west of the Town of adjacent to
Middletown. Specifically, the Middle Marsh Property is located east and
Belle View Lane (Route 758), and west and adjacent to Hites Road
Route 625), and is further traversed by Chapel Road (Route 627). The
(Northern Reserve is bounded to the south by Cedar Creek, and is west
and adjacent to Meadow Mills Road (Route 624).
E
Information to be Submitted for Capital Facilities Impact Model
In order for the Planning Staff to use its capital facilities impact model, it is necessary for the
applicant to provide information concerning the specifics of the proposed use. Otherwise, the
planning staff will use the maximum possible density of intensity scenario for the proposed Zoning
District as described on page 9 of the application package.
9. Parcel Identification/Location: Parcel Identification Number(s) 83 -A -109 & 90 -A -23
Districts
Magisterial:
Fire Service:
Rescue Service:
Back Creek
Middletown
Middletown
High School:
Middle School:
Elementary School:
Sherando
Aylor
Middletown
10. Zoning Change: List the acreage included in each new zoning category being requested.
Acres
Current Zoning
Zoning Requested
691
RA
EM
691
Total acreage to be rezoned
11. The following information should be provided according to the type of rezoning proposed:
Number of Units Proposed
Single Family Home Townhome Multi- Family
Non - Residential Lots Mobile Home Hotel Rooms
Square Footage of Proposed Uses
Office
Retail
Restaurant
Service Station
Manufacturing
Warehouse
Other
78 acres — quarry pits
3
r�
u
12. Signature:
:I
I (we), the undersigned, do hereby respectfully make application and petition the Frederick County
Board of Supervisors to amend the zoning ordinance and to change the zoning map of Frederick
County, Virginia. I (we) authorize Frederick County officials to enter the property for site
inspection purposes.
I (we) understand that the sign issued when this application is submitted must be placed at the front
property line at least seven days prior to the Planning Commission public hearing and the Board of
Supervisors' public hearing and maintained so as to be visible from the road right -of -way until the
hearing.
(we) hereby certify that this application and its accompanying materials are true and accurate to
the best of my linerals ledge.
Applicant/ Date 20�
Owner (Chemstone)
ADJOINERS CHEMSTONE - MIDDLETOWN
Adjoining Property Owners
Rezoning
Owners of property adjoining the land will be notified of the Planning Commission and the Board
of Supervisors meetings. For the purpose of this application, adjoining property is any property
abutting the requested property on the side or rear or any property directly across a public
right -of -way, a private right -of -way, or a watercourse from the requested property. The
applicant is required to obtain the following information on each adjoining property including the
parcel identification number which may be obtained from the office of the Commissioner of
Revenue. The Commissioner of the Revenue is located on the 2 "d floor of the Frederick County
Administrative Building, 107 North Kent Street.
Name
Address
Property Identification
Number (PIN)
Name:
Keith A. & Linda A. McNeely
443 Westernview Or
Property
#:
84 -6 -10
Middletown, VA 22645
Name:
Mark A. & Karen Griffith
411 Westernview Or
Property
#:
84 -6 -9
Middletown, VA 22645
Name:
Fred & Shirley Potter
379 Westernview Or
Property
#:
84 -6 -8
Middletown, VA 22645
Name:
Steven M. & Deborah M. Miller
357 Westernview Or
Property
#:
84 -6 -7
Middletown, VA 22645
Name:
Donald J. & Donna W. Hopkins
325 Westernview Or
Property
#:
84 -6 -6
Middletown, VA 22645
Name:
Lawrence E. &Wendy J. Hamilton
277 Westernview Or
Property
#:
84 -6 -5
Middletown, VA 22645
Name:
Jeanne Rapa & Shellie L. Sellards
241 Westernview Or
Property
#:
84 -6 -4
Middletown, VA 22645
Name:
Kevin D. & Elizabeth M. Barrington
205 Westernview Or
Property
#:
84-6 -3
Middletown, VA 22645
Name:
Gary S. & Dale A. Nichols
1405 Handley Ave
Property
#:
84 -A -7
Winchester, VA 22601
Name:
Richard A. & Janet S. Dye
11310 Vale Rd
Property
#:
84 -A -12
Oakton, VA 22124
Name:
H & E, LC
1832 Chapel Rd
Property
#:
84 -A -17
Middletown, VA 22645
Name:
Jennifer L. Nichols
1875 Hiles Rd
Property
#:
84 -A -17A
Middletown, VA 22645
Name:
Edith M. Renner
152 Veterans Rd
Pro ert
#:
91 -A -7
Middletown, VA 22645
5
0
11
Name:
Garrett Farms, LLC
508 Veterans Rd
Property
#:
84 -A -16
Middletown, VA 22645
Name:
Timothy D. & Lisa M. Rickman
Rt 1, Box 695
Property
#:
91 -A-7A
Swords Creek, VA 24649
Name:
Carlton R. Boyer
156 N Eberly St
Property
#:
83 -A -107
Strasburg, VA 22657
Name:
Carlton R. Boyer
156 N Eberly St
Property
#:
83 -A -1088
Strasburg, VA 22657
Name:
Dennis F. Boyer
165 Drover Ln
Property
#:
83 -A -1088
Middletown, VA 22645
Name:
Deborah R. Dorman
9345 River View Rd
Property
#:
83 -A -106
Broomes Island, MD 20615
Name:
Rock Builders, Inc
P.O. Box 1146
Property
#:
83- A -103B
Berryville, VA 22611
Name:
Garrett Farms, LLC
508 Veterans Rd
Property
90 -A -20
Middletown, VA 22645
Name:
Richard A. McDonald
470 Meadow Mills Rd
Property
#:
90 -A -30
Middletown, VA 22645
Name:
Meadow Mills Union Chapel
RR 1 Box 446
Property
#:
90 -A -29
Edinburg, VA 22824
Name:
Joseph L. & Frances Kenny
516 Meadow Mills Rd
Property
#:
90 -A -29A
Middletown, VA 22645
Name:
Thomas G. II & Cornelia E. Lekas
536 Meadow Mills Rd
Property
#:
90 -A -28
Middletown, VA 22645
Name:
Albert H. Hodson
536 Meadow Mills Rd
Property
#:
90 -A -27
Middletown, VA 22645
Name:
National Trust for Historic Preservation
1785 Massachusetts Ave NW
Property
#:
90 -A -33
Washington, DC 20036
Name:
Malcom & Mildred G. Brumback
420 Belle Grove Rd
Property
#:
90 -A -26
Middletown, VA 22645
Name:
Barry L. Bowser
P.O. Box 221
Property
#:
90 -A -25
Middletown, VA 22645
0 0
n
U
12. Signature:
I (we), the undersigned, do hereby respectfully make application and petition the Frederick County
Board of Supervisors to amend the zoning ordinance and to change the zoning map of Frederick
County, Virginia. I (we) authorize Frederick County officials to enter the property for site
inspection purposes.
I (we) understand that the sign issued when this application is submitted must be placed at the front
property line at least seven days prior to the Planning Commission public hearing and the Board of
Supervisors' public hearing and maintained so as to be visible from the road right -of -way until the
hearing.
I (we) hereby certify that this application and its accompanying materials are true and accurate to
the best of my (our) kAowledge.
Applicant/ / + Date 2D�
Owner Z inerals (Chemstone)
•
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O—N Ml'nemls Chemstone
Patton, Harris, Rust & Associates PC
ti
Southern Reserve Boundary Exhibit 117 E. Picadilly Si. Vinchester, Virginia 2260
VOICE: (540) 667-2139 FAX: (540) 665-0493
a FREDERICK COUNTY, ORGIN14
1 )
O—N Ml'nemls Chemstone
Patton, Harris, Rust & Associates PC
ti
Southern Reserve Boundary Exhibit 117 E. Picadilly Si. Vinchester, Virginia 2260
VOICE: (540) 667-2139 FAX: (540) 665-0493
a FREDERICK COUNTY, ORGIN14
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NOTES:
GRAPHIC SCALE
1. FREDERICK COUNTY PIN: 0 900 Iwo zoos
83 -A -109
2. PROPERTY OUTLINE, ADJOINING IN FEET )
PROPERTY OWNERS, AND MERIDIAN i inch - 1000 tL
SHOWN HEREON ARE BASED ON
THE PLAT ATTACHED TO DEED OF EXHIBIT
BARGAIN AND SALE RECORDED IN A PORTION OF THE
DB 620, PG 186 AMONG THE LAND PROPERTY CONVEYED TO
RECORDS OF FREDERICK COUNTY, CHEMSTONE CORPORATION
VIRGINIA. INFORMATION SHOWN DEED BOOK 620, PAGE 186
HEREON IS NOT BASED ON A
CURRENT FIELD RUN SURVEY. BACK CREEK MAGISTERIAL DISTRICT
FREDERICK COUNTY, VIRGINIA
3. NO TITLE REPORT. SCALE: 1' = 1000' DATE: FEB. 15, 2006
Patton Harris Rust 8 Associ ates,pc
Engineers. Surveyors. Planners. Landscape Architects.
l i Winchester, East Piccadilly Street, Suite 200
-I- Winchester, Virginia 22601
T 540.667.2139
F 540,665.0493 SHEET 1 OF 1
316,
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).30'
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5.05'
416,
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3.07'
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516'
112,
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5.03'
5.67'
3.60'
5.47'
1 31,
7.08'
2.27
3 81'
§ 165 -83 ZONING § 165 -85
Additional landscaped areas may be required to ensure that all unused
areas are landscaped and to improve the general appearance and use
of the site. In no case shall more than 25% of the site be required to
be landscaped in the B2 Business General Zoning District.
ARTICLE XI
EM Extractive Manufacturing District
§ 165 -84. Intent.
The intent of the Extractive Manufacturing. District is to provide for mining
and related industries, all of which rely on the extraction of.natural resources.
Provisions and performance standards are provided to protect surrounding
uses from adverse impacts. It is also the intent of this article to avoid the
encroachment of incompatible uses on the borders of the EM District.
§ 165 -85. Permitted uses.
The following uses shall be allowed:
A. Surface or subsurface mining of rock, metal and nonmetallic ores.
B. Oil and natural gas extraction and /or pumping, including storage of
production produced on the site. No refining is allowed.
C. Sand and gravel mining and processing.
D. Crushed stone operations.
E. Manufacture and processing of cement, lime and gypsum.
(Cont'd on page 16625)
16624.9 12 -15 -2004
0
0
§ 165 -85 ZONING § 165 -88
F. Asphalt and concrete mixing plants.
G. Brick, block and precast concrete products.
H. Farming, agriculture, orchards, nurseries, horticulture, dairying and
forestry.
I. Accessory uses.
J. Business and directional signs.
K. Public utilities, including poles, lines, distribution transformers, pipes,
meters and sewer facilities.
§ 165 -86. Performance standards.
All uses shall conform to applicable state or federal regulations governing
noise and vibration. The Zoning Administrator may require the submission of a
copy of data submitted to state or federal agencies pertaining to these
performance standards with the required site plan.
§ 165 -87. Landscaping.
Appropriate landscaping or screening may be required by the Zoning
Administrator or Planning Commission within any required yard setback area in
order to reasonably protect adjacent uses from noise, sight, dust or other
adverse impacts.
§ 165 -88. Setback and yard requirements.
A. Front setback.
(1) All principle and accessory structures shall be set back seventy -
five (75) feet from any road, street or highway right -of -way.
(2) Excavations shall be no closer than one hundred (100) feet from
any road. street or highway right -of -way. The Planning Commis-
sion may reduce the required front setback for excavation to fifty
(50) feet if it determines that, through the use of measures, such
as landscaping or screening, the effective protection afforded to
adjacent properties has not been reduced.
16625
§ 165 -88 FREDERICK COUNTY CODE § 165 -90
B. Side and rear setbacks. All principle and accessory structures shall be
set back at least twenty -five (25) feet from any side or rear property
boundary.
(1) No structure shall be closer than one hundred (100) feet from any
property line zoned RA, RP, R4, R5 or MH1. The Planning
Commission may reduce this required setback to fifty (50) feet if
it determines that, through the use of measures, such as
landscaping or screening, the effective protection afforded to
adjacent properties has not been reduced.
(2) Excavations shall be no closer than one hundred (100) feet from
any property zoned RA, RP, R4. R5 or MH1. No excavation shall
be located closer than two hundred (200) feet from any dwelling
or platted residential subdivision. The Planning Commission may
reduce these required setbacks to fifty (50) feet if it determines
that, through the use of measures, such as landscaping or
screening, the effective protection afforded to adjacent properties
has not been reduced.
(3) All crushing or screening machinery shall be set back at least
three hundred (300) feet from any property boundary. If such
equipment is fully enclosed within a building which maintains the
effective protection afforded adjacent properties. the Planning
Commission may reduce this yard requirement to a minimum of
two hundred (200) feet.
§ 165 -89. Height limitations.
No structure shall exceed forty -five (45) feet in height.
§ 165 -90. Additional requirements.
All uses in the EM District must conform with all state, federal and local
regulations. All mining operators shall submit to the Zoning Administrator a copy
of the operations plan required by state agencies with the required site plan.
16626
REZONING APPLICATION #03 -06
O -N MINERALS (CHEMSTONE)
Staff Report for the Planning Commission
Prepared: March 20, 2006 (Updated May 22, 2006)
Staff Contact: Michael T. Ruddy, Deputy Planning Director
This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in making a decision on this
application. It may also be useful to others interested in this zoning matter. Unresolved issues
concerning this application are noted by staff where relevant throughout this staff report.
Reviewed
Action
Planning Commission: April 5, 2006
Tabled 60 days
June 7, 2006
Pending
Board of Supervisors: June 28, 2006
Pending
PROPOSAL To rezone 639.13 acres from RA (Rural Areas) District to EM (Extractive
Manufacturing) District with proffers.
LOCATION The Middle Marsh property is located east of Belle View Lane (Route 758) and west
and adjacent to Hiles Road (Route 625). The Northern Reserve is bounded to the south by Cedar Creek
and is west and adjacent to Meadow Mills Road (Route 624).
MAGISTERIAL DISTRICT Back Creek
PROPERTY ID NUMBERS 83 -A -109 and 90 -A -23
PROPERTY ZONING RA (Rural Areas)
PRESENT USE Undeveloped ,
ADJOINING PROPERTY ZONING & PRESENT USE
North:
RA (Rural Areas)
Use:
Residential
South:
EM (Extractive Manufacturing)
Use:
Shenandoah County
East:
RA (Rural Areas)
Use:
Residential /Agricultural
West:
RA (Rural Areas)
Use:
Residential /Agricultural
PROPOSED USES Quarry
Cl
Special Limited Power of Attorney
County of Frederick, Virginia
Frederick Planning Web Site: www.coJrederick.va.us
Department of Planning & Development, County of Frederick, Virginia,
107 North Kent Street, Winchester, Virginia 22601
Phone 540 -665 -5651 Facsimile 540 - 665-6395
Know All Men By Those Present: That I (We)
(Name) O -N Minerals (Chemstone) Comoration (Phone) 540 -465 -6819
(Address) 1696 Oranda Road P.O. Box 71 Strasburg, VA 22657
the owner(s) of all those tracts or parcels of land ( "Property ") conveyed to me (us), by deed recorded in the
Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by
Deed Book 620 on Page 186 and is described as
Deed Book 476 on Page 105 and is described as
Parcel: Lot: Block: A Section: 83 Subdivision:
Parcel: Lot:23 Block: A Section: 90 Subdivision:
do hereby make, constitute and appoint:
fame) Patton Harris Rust & Associates pe (Phone) __ L40-667-2139
(Address) 117E Piccadilly Street Suite 200 Winchester Virginia 22601
To act as my true and lawful attomey -in -fact for and in my (our) name, place, and stead with full power and
authority I (we) would have if acting personally to file planning applications for my (our) above described
Property, including
X Rezoning (including proffers)
_ Conditional Use Permits
Master Development Plan (Preliminary and Final)
Subdivision
Site Plan
My attomey -in -fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered
conditions except as follows:
This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or
modified. T4 I--, /
In witness thereof, I,(w� have hereto set m our)�}ind�,and seal this .20 day of 200 4 ,
State of Virginia, City /County of
> (l a Notary Public in and for the jurisdiction
ore aid, cer ti y that the person(s) v o signed to the foregoing instrument personally appeared before me
an •ts acknowledieed the s�a /before me in th jurisdiction aforesaid thi _ day o ] 20 o
fit (N My Commission Expires: a /
Public
0
0
Special Limited Power of Attorney
a County of Frederick, Virginia
Frederick Planning Web Site: www.co.frederick.va.us
Department of Planning & Development, County of Frederick, Virginia,
107 North Kent Street, Winchester, Virginia 22601
Phone 540 -665 -5651 Facsimile 540-665-6395
Know All Men By Those Present That I (We)
(Name) O -N Minerals (Chemstone) Corporation (Phone) 540- 465 -6819
(Address) 1696 Oranda Road P.O. Box 71 Strasburg VA 22657
the owner(s) of all those tracts or parcels of land ( "Property ") conveyed to me (us), by deed recorded in the
Clerk's Office of the Circuit Court of the County of Frederick, Virginia, by
Deed Book 620 on Page 186 and is described as
Deed Book 476 on Page 105 and is described as
Parcel: Lot Block: A Section: 83 Subdivision:
Parcel: Lot:23 Block: A Section: 90 Subdivision:
do hereby make, constitute and appoint
(Address) 117E Piccadilly Street Suite 200 Winchester Virginia 22601
To act as my true and lawful attomey -in -fact for and in my (our) name, place, and stead with full power and
authority I (we) would have if acting personally to file planning applications for my (our) above described
Property, including
X Rezoning (including proffers)
_ Conditional Use Permits
Master Development Plan (Preliminary and Final)
_ Subdivision
Site Plan
My attorney -in -fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered
conditions except as follows:
This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or
modified. Tq //
In witness thereof, l have hereto set m our and seal this ZO day of, 2001 ,
State of Virginia, City/County of �/jfiV� f'1^dt a7r C� To -wit:
6 - �N .a Notary Public in and for the jurisdiction
ore aid, certi that.the person(s) to signed to the foregoing instrument personally appeared before me
and as acknowledged the sam before mein th jurisdiction aforesaid this I A �C day o , 20(Yo .
)x
- My Commission Expires: �a. �, / U C�
ary Public
Rezoning #03 -06 — O -N Minerals (Chemstone)
May 22, 2006
Page 2
REVIEW EVALUATIONS:
Virginia Dept. of Transportation: The documentation within the application to rezone this property
appears to have little measurable impact on Route 757. This route is the VDOT roadway which has
been considered as the access to the property referenced. VDOT is satisfied that the transportation
proffers offered in the Global Stone Chemstone Corporation rezoning application dated June 13.2005
address transportation concerns associated with this request. Before development, this office will
require a complete set of construction plans detailing entrance designs, drainage features, and traffic
flow data from the I.T.E Trip Generation Manual. Seventh Edition for review. V DOT reserves the right
to comment on all right- of-way needs, including right -of -way dedications, traffic signalization and off
site roadway improvements and drainage. Any work performed on the State's right -of -way must be
covered under a land use permit. This permit is issued by this office and requires an inspection fee and
surety bond coverage.
Fire Marshal Will not directly effect fire and rescue. Plan approval recommended.
Department of Inspections: Demolition permit required prior to removing any existing structures. No
additional comments required.
Public Works Department: Refer to page 4, (Environmental Features: The discussion indicated that
an environmental report prepared by Science Applications International Corporation (SAIC) was
included with the impact statement as Appendix "A ". A copy of this report was not included with our
submittal. Please provide us with a copy of this report for our review. Refer to page 6, Soils /Geology:
The geology discussion should be expanded to include hydrogeology and the impact of the project on
the local groundwater. In particular, the subdivisions which rely on groundwater wells for their water
supply. General: The impact analysis has not addressed one very important item related to a rezoning
from RA to EM. That item is the impact or effect of blasting on adjacent residential buildings. This
issue should also be expanded to include the impact ot'dust on adjacent residential dwellings.
Frederick- Winchester Service Authority No comment.
Sanitation Authority The Frederick County Sanitation Authority supports this rezoning request. The
Authority will use these pits, when abandoned. as a source of water supply under an agreement with
Global Stone Chemstone Corporation. dated March 2. 2000. Larger pits will provide a more abundant
supply and reliable source of water. Larger pits are also more cost effective for the Authority to develop
as a water supply. That benefits the residents of Frederick County that depend upon the Authority for
water service.
Frederick- Winchester Health Department: The Health Department has no objection if there is to be
no increase in water use which would require sewage disposal.
CIS: No road /name requirements noted. Any road network that provides primary access to four or
more occupied business structures shall be names. Numbering will be assigned as applicable.
Rezoning #03 -06 — O -N Minerals (Chemstone)
May 22, 2006
Page 3
Department of Parks & Recreation: No comment.
Frederick County Public Schools: Based on the information provided that states no residential units
will be part of the rezoning, there will be no impact to the school population upon build -out.
Winchester Regional Airport: Allowed uses under this rezoning should not effect airsidc operations
of the Winchester Regional Airport.
Town of Middleto-wri: The Middletown Planning Commission, while not opposed to the project, is
opposed to the increase of truck traffic through Middletown and has concerns about the effect of
excavation on the water table. Please see revised cornnrent and resolution.
Frederick Counts Attornev: Please see anached leper dared 1farch 27. 2006Ji 11r. Bob Mitchell.
Historic Resources Advisory Board: Please see the attached let[er datedJcmuary 3, 2006 signed by
Candice E. Perkins. Planner H.
Planning & Zoning:
l) Site History
The original Frederick County zoning map (U.S.G.S. Middletown Quadrangle) identities the
subject parcels as being zoned A -2 (Agricultural General). The County's agricultural zonin
districts were subsequently combined to form the RA (Rural Areas) District upon adoption ofan
amendment to the Frederick County Zoning Ordinance on May 10, 1989. The corresponding
revision of the zoning map resulted in the re- mapping of the subject property and all other A -1
and A -2 zoned land to the RA District.
2) Comprehensive Policy Plan
The Frederick County Comprehensive Policy Plan is an official public document that serves as
the community's guide for making decisions regarding development, preservation, public
facilities and other key components of community life. The primary goal of this plan is to
protect and improve the living environment within Frederick County. It is in essence a
composition of policies used to plan for the future physical development of Frederick County.
[Comprehensive Policy Plan, p. 1-1/
Land Use
The property for which the rezoning is being requested is located within the Rural Areas of
Frederick County. This land use designation is defined in the Comprehensive Plan as all areas
outside of the designated Urban Development Area. The primary land uses in the Rural Areas
are agriculture and forests. Tlie primary growth pattern consisting of widely scattered, large lot
residential development. Many residents of Frederick County are attracted to the natural beauty
0 •
Rezoning #03 -06 — 0 -N Minerals (Chemstone)
May 22, 2006
Page 4
and special lifestyle found in rural portions of the County. Excessive or inappropriate
development in these areas can reduce their value and attractiveness. At the same time, the rural
areas play an important role in the County's economy through the income generated by
agriculture. [Comprehensive Policy Plan, p. 6 -55]
The subject property contains areas of prime agricultural soils which are generally located in the
limestone belt running north -south through the County. The Comprehensive Plan recognizes the
value to the County's economy of the limestone resources within the County and the extraction
of these natural resources. Within the Business and Industrial Area policies it is recognized that
policies are needed and standards should be developed concerning how to deal with new
requests for large mining operations [Comprehensive Police Plan, p. 6 -11. 6 -721.
The Rural Areas Conclusion states that most of the County will continue to be rural areas used
for agriculture, forests, or low density residential uses. Certain types of business uses may be
located at scattered rural locations if safe access is available, and if adverse impacts on
surrounding uses and the rural environment can be avoided. These rural business and industrial
uses should be those that provided services to rural areas or that are more appropriate in rural
areas than urban areas. The locations for such business would include major intersections or
locations with recent or existing business activity [Comprehensive Policy Plan, p. 6 -60] Two of
the identified goals of the Rural Area policy are to maintain the rural character of areas outside
the UDA and to protect the rural environment [Comprehensive Policy Plan. p. 6 -761.
Environmem
After describing the physical characteristics of the County, the Environment Chapter of the
Comprehensive Plan addresses Water Supply. Issues concerning water quality, quantity, use,
and protection of water resources are directly related to land development activities. Water
supplies are needed to support development, while surface and groundwater are potentially
affected by development activities [Comprehensive Policy Plan. p. 5 -31.
Major sources of water used in the County are groundwater and the North Fork of the
Shenandoah River. In 2000, the Frederick County Sanitation Authority entered a seventy year
lease with Global Stone Chemstone Corporation (Global). Global owns quarries at Clearbrook,
Middletown, and Strasburg. The lease provides the water From these quarries as a source of
supply and transfers title of the quarries to the Frederick County Sanitation Authority when the
mining operations are complete. The agreement has provided a viable long term source of water
for the County [Comprehensive Policy Plan, p. 5 -31
Groundwater is the major source of water supply in the rural portions of the County and
provides a potential alternative source for urban areas. In all, over half the population of the
County relies on groundwater as the sole source of water supply. The most productive aquifers
in the County are the limestone- carbonate aquifers [Comprehensive Policy Plan, p. 5 -3, 5 -4].
Rezoning #03 -06 — O -N Minerals (Chentstone)
May 22, 2006
Page 5
History
The property for which the rezoning is being requested is located adjacent to Belle Grove and
the Cedar Creek Battlefield. Belle Grove and the Cedar Creek Battlefield are historic sites in
Frederick County that are listed on the Virginia Landmarks Register and the National Register
of Historic Places. Cedar Creek is identified as one of six battlefields of great national
importance that are located in Frederick County and Winchester. The Rural Landmarks Survey
of Frederick County Further identifies both sites as potentially significant properties. In addition,
the 1992 National Park Service Study of Civil War Sites in the Shenandoah Valley shows a
portion of the property as being within the core battlefield of the Battle of Cedar Creek.
Significant portions of Cedar Creek, along with Third Winchester and Kernstown battlefields
provided the critical mass and the foundation for the Battlefield Network Plan which was
adopted by the Frederick County Board of Supervisors on December 13, 1995, and subsequently
incorporated into the Comprehensive Plan. Excerpts from the Battlefield Network Plan have
been provided for your information. The Battlefield Network Plan and the 1992 National Park
Service Study of Civil War Sites in the Shenandoah Valley were important catalysts for the
designation of the regional Shenandoah Valley Battlefields National Historic District which was
created by Congress in 1996. More recently, the efforts of the Shenandoah Valley National
Battlefields Foundation and the National Park Service continue to further historic preservation
efforts relating to the civil war battlefields located in Frederick County and the broader region.
To address the historic preservation policy goal of protecting the historic resources in Frederick
County, The Comprehensive Plan provides that the Historic Resources Advisory Board (FIRAB)
review development proposals which potentially impact significant historic resources and that
the HRAB's information and recommendations are forwarded to the Planning Commission and
Board of Supervisors. The HRAB facilitated the involvement of the historic preservation
stakeholders in the review of this rezoning request. The recommendation of the HRA13
accompanies this report and will be discussed in greater detail later in the report. Identified
implementation methods far promoting the preservation and protection ofCivil War Battlefield
resources include the preservation and protection of the historical appearance and character of
the key battlefield sites, their viewsheds, and their approaches, and the coordination of the
battlefield efforts with efforts to protect and preserve natural, visual, and environmental
resources [Comprehensive Policy Plan, p. 2- 11 -13
Transporlal ion
The Eastern Road Plan of the Comprehensive Policy Plan does not cover this portion of the
County. The properties are located in the Rural Area of the County. A large portion of the roads
within the County are currently inadequate to meet the needs of the areas they serve. There is a
need to insure that improvements to existing rural roads continue to be made in a systematic
way and that new rural roads are provided as needed [Comprehensive Policy Plan, p. 7 -1].
0
Rezoning 403 -06 — 0 -N Minerals (Chemstone)
May 22, 2006
Page 6
In general, the Comprehensive Plan states that a Level of' Service (LOS) Category C or better
should be maintained on roads adjacent to and within new developments within the County.
The applicants Traffic Impact Analysis (TIA) seeks to address the transportation impacts
associated with this rezoning request.
3) Site Suitability /Environment
Both properties contain environmentally sensitive areas. The applicant has identified wetlands,
streams, and floodplains, and areas of mature woodlands on the properties. Exhibits have been
provided that depict these environmental features. Any disturbance of identified environmental
resources would occur in conformance with applicable County, State, and Federal regulations.
Watson Run and Middle Marsh Brook are the existing streams that traverse the subject
properties. Both streams have associated floodplain designations.
The General Soil Map of the Soil Survey of Frederick County. Virg, is indicates that the soils
comprising the subject parcels fall under the Frederick- Poplimento- Oaklet soil association.
Multiple soil types are located on the sites. The site contains soil types that are considered prime
agricultural soils. The characteristics of this soil type and any implications for site development
are manageable through the site engineering process. It is recognized that the limestone deposits
that underlie the properties provide the ideal geological conditions for Extractive Manufacturing
use. In addition, the most productive aquifers in the County are the limestone- carbonate aquifers
that are present in this area.
4) Potential Impacts
Potential Impact Sununarv.
In evaluating the O -N Minerals (Chemstone) rezoning application it is very important to
recognize that the applicant has not proffered a commitment to the use of the property beyond
those which would be enabled by the EM (Extractive Manufacturing) District. All land uses,
meeting the applicable development standards, would be permitted within the district based
upon the application as submitted. The County is familiar with the operation and practices of
the existing Middletown Quarry operation and recognizes that the purpose of the rezoning
request is to enable the expansion of the existing limestone ore extraction operation onto
adjacent properties, utilizing this natural resow'ce. However, lacking a conunitmentthat seeks to
further define the scope of operations, this application should be evaluated carefully and with
the understanding that the use of the properties could be more intensive than that described in
the applicant's impact statement.
"
i
Rezoning #03 -06 — O -N Minerals (Chemstone)
May 22, 2006
Page 7
Consideration should be given to the maximum possible intensity of EM (Extractive
Manufacturing) use identified in the County's Zoning Ordinance (a copy oflhe EM (Extractive
Manufacluring District has been provided for your revien). The impacts associated with this
rezoning request may be significant and should be understood. The applicant should be prepared
to address the mitigation of the impacts associated with this rezoning request, in particular,
those impacts and issues identified by the reviewing agencies.
Guarantees in the form of proffered conditions have not been offered to ensure that the impacts
generated by this application are limited and consistent with the discussion in the Impact
Statement. The applicant has the ability to address this through the Proffer Statement. When
considering the acreage potential, the dimensional requirements, and the EM District uses, it is
possible that facilities located adjacent to and with access from Chapel Road could result, as
could facilities located within 50 feet of the adjacent RA zoned property surrounding the site.
The scope of the impacts could exceed the projections identified and accommodated in the
impact statement and TIA.
A. Historic Resources
The Frederick County Historic Resources Advisory Board (HRAB) considered the O -N
Minerals (Chemstone) rezoning application during their December 20, 2005 meeting. Invited to
attend the meeting by the HRAB were representatives of the various historical and cultural
groups considered stakeholders in relationship to the historical resources in the vicinity of the
rezoning. "The following stakeholder groups were represented: Belle Grove, Cedar Creek
Battlefield Foundation, National Park Service, and the Town of Middletown.
The HRAB reviewed information associated with the 1992 National Park Service Studv of Civil
War Sites in the Shenandoah Valley information provided by the applicant as well as
information provided by various groups that were in attendance of the meeting. The 1992
National Park Service Studv of Civil War Sites in the Shenandoah Valley shows a portion of the
property in question as being located within the core battlefield of the Battle of Cedar Creek.
The property also contains the site where the Nieswanger Port once stood.
Historic Resources Advisory Board Concerns
The HRAB expressed concern that the proposed rezoning was not protecting the viewshed of the
battlefield and the Belle Grove property as well as the archeological resources present on the Cedar
Creek Battlefield and the site of the Nieswanger Fort. The FI RAB felt that the applicant still needs
to address many issues with this rezoning before it should be considered by the Planning
Commission and Board of Supervisors.
The HRAB expressed that they could support the approval of this project if the suggestions
offered as a result of the HRAB meeting are considered by the applicant in order to mitigate
impacts on the historic resources (Please see HRAB feller dared January 3, 20O6, signed by
Candice E. Perkins, Planner 1[).
9
Rezoning #03 -06 — O -N Minerals (Chennstone)
May 22, 2006
Page 8
The applicant has modified their rezoning application in an effort to address two of the nine
comments suggested by the HRAB. However, many of the valid recommendations offered by the
HRAB have not been addressed. "Two of the most significant and constructive continents offered by
the HRAB (the first two comments in the letter from the HRAB) should be further satisfied to
ensure that the potential impacts associated ofthc rezoning are appropriately addressed. Presently,
they have not been addressed in a manner that satisfies the concerns expressed by the HRAB.
The opportunity has been provided for the applicant to work with the identified stakeholders, Belle
Grove, Cedar Creek Battlefield Foundation, and the National Park Service, to prepare a view shed
mitigation plan that addresses the unique view sheds and approaches critical to their particular
points of view. Understanding their points of view, a tailored approach that integrates the natural
landscape with customized berming and landscaping would promote an approach to the view shed
management that mitigates the visual impacts of the mining operations in an effective manner. A
customized approach to the buffering, berming, and landscaping would be more appropriate than
the present approach proposed in the proffer statement. In certain locations, particularly on the
southern property (90- A -23), designating areas of non disturbance would preserve the existing
landscape and by taking advantage of the topography effectively mitigate the visual impacts ofthe
mining operations. A strategic approach to the location and size of the waste stockpiles identified
on the exhibits should also be a consideration. Current practice at the existing facility with regards
to the stockpiling of overburden should be avoided in the future. Approaches to addressing the
visual impacts of the proposed operations should be more detailed and should be incorporated into
the proffer statement.
The applicant has provided for the dedication to Belle Grove of approximately eight acres as an
historic reserve. This is in an area where archeological resources associated with the Belle Grove
Plantation have previously been identified. A time frame has been provided for the dedication of
this acreage.
The HRAB suggested that a Phase 1 Archeological Survey should be done on the property focusing
on core battlefield areas and the site of the Nieswanger Fort. If warranted subsequent studies should
be performed. The applicant has proffered to complete a Phase I Archeological Survey of the
property in the future. However, no commitments have been made beyond a Phase 1 Survey. It
should be clarified that the Survey would be applicable to parcel 90 -A -23 in addition to the stated
parcel 83 -A -109.
The goal of the HRAB comments is to enable the mining operations to expand in a manner which
is not detrimental to the historical context of the surrounding landscape. Further, to promote an
approach that is mutually beneficial to the applicant, historic preservation stakeholders, and the
adjacent community. The HRAB comments provide the opportunity for O -N Chennstone to
continue to address the needs of the community, minimizing the impacts of their operations in a
Rezoning #03 -06 — O -N Minerals (Chemstone)
May 22, 2006
Page 9
manner that is compatible with the surrounding community, in a manner described in their Impact
Statement.
B. Transportation
Much of the analysis in the Impact Statement is based upon the continuation of the existing
practices of the Middletown quarry operation. The Traffic Impact Analysis (TIA) and the impact
statement suggests that the vehicle trips would increase by more than double from the existing
count of 506 vehicles per day to 1,305 vehicle trips per day. A more significant increase in
Global Stone truck traffic is anticipated in the TIA from 19 trucks per day to 80 per day and an
increase of 56 customer truck trips per day. It should be recognized that a different combination
or additional uses may further increase the traffic impacts associated with this request. As
evidenced at the existing Strasburg facility, additional traffic impacts could be experienced from
a more intensive use of the property than is currently envisioned.
Primary access to the site is depicted as being from the existing site entrance along Route 625
(5 °i Street) to U.S. Route 11, Main Street in the Town of Middletown. The Town has expressed
their opposition to the increase of truck traffic through Middletown. A significant amount of
discussion regarding the inter -site transfer of materials via a conveyor belt system is offered in
the impact statement. No mention of this approach has been provided in the Proffer Statement.
Therefore, this approach should not presently be part of the consideration of this rezoning
request. As demonstrated in the TIA, a level of service C or better would be achieved at the
intersection of Route I I and Route 625 (5t" Street). Consideration should be given to the
character of the traffic generated from the facility and utilizing the aforementioned intersection.
B. Mining Operations and Community Impacts
Associated with mining operations is the potential for a variety of impacts that may affect
surrounding properties and land uses. The Division of Mineral Mining of the Virginia
Department of Mines is responsible for permitting mining operations within the State of
Virginia including the operations of O -N Chemstone at the Middletown Quarry. The EM
(Extractive Manufacturing) District of the Frederick County Zoning Ordinance provides
additional local requirements that seek to minimize the impacts associated with Extractive
Manufacturing uses. Provisions and performance standards are provided to protect surrounding
uses from adverse impacts. Appropriate landscaping or screening may be required by the Zoning
Administrator or Planning Commission within any required yard setback area in order to
reasonably protect adjacent uses from noise, sight, dust, or other adverse impacts.
0 0
Rezoning #03 -06 — 0 -N Minerals (Chemstone)
May 22. 2006
Page 10
The County Engineer reviewed the request and provided input expressing concerns regarding
the geological impacts and the potential hydrological impacts, in particular the impact of the
project on the local groundwater which includes the adjacent subdivisions that rely on
groundwater wells for their water supply. With regards to the geology discussion, the impactor
effect of blasting on adjacent residential buildings should be fully considered as should the
impact of dust from the mining operations on adjacent residential dwellings. The Impact
Statement did not filly address these potential impacts. As a result of the input of the County
Engineer the applicant has included proffers that seek to address the groundwater, dust, and
blasting concerns associated with this rezoning request.
In addition to the potential impacts of the proposed mining operations on the view shed from the
historical perspective, serious consideration should be given to the visual impacts on the rural
landscape from the perspective ofthe adjacent residential landowners and from the perspective
of residents and visitors traveling along Chapel Lane which bisects parcel 83 -A -109 and the
proposed mining operation..
Summary of Impacts:
- Potential impacts associated with more intensive use of properties
- HRAB Concerns
-View shed coordination and mitigation
- Cultural Resource Survevs
- Transportation impacts on Route 625 and its intersection with Route 1 1
- Potential groundwater, dust, and blasting controls on adjacent properties
- Rural view shed.
5) Proffer Statement— Dated June 13, 2005 and revised January 16, 2006, February 8, 2006,
and February 17, 2006
The applicant has provided that the property shall be developed with Extractive Manufacturing
Land uses.
With regards to site development, the applicant has attempted to limit access to the existing site
entrance, has proffered distance buffers, earthen berms, and landscaping to minimize the
impacts to the view shed of the surrounding community. It should be understood that no
mininnrm standards have been offered to ensure that the sire dereloprnent proffers will ninimize
the potential impacts of the mining operations and address the expressed concerns of the
HRAB.
An eight acre historic reserve to be dedicated to Belle Grove has been proffered by the
applicant.
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Rezoning 903 -06 — O -N Minerals (Chemstone)
May 22, 2006
Page 11
A limited Phase 1 Archeological Survey has been proffered by the applicant. /t should be
clarified that this proffer is applicable to both parcels subject to the rezoning.
The applicant has guaranteed to the Frederick County Sanitation Authority rights to the
groundwater resources in accordance with existing agreements between the applicant and the
FCSA. The proffer Statement should provide clarification that the future use ofthe properly and
the development gffacilities to support the utilization afthe groundwater resources ore enabled
by this rezoning request and proffer Statement.
The applicant has stated their intent to monitor, minimize the impacts, and remediate any
impacts associated with groundwater, dust, and blasting.
STAFF CONCLUSIONS FOR 04/05/06 PLANNING COMMISSION MEETING:
The O -N Minerals (Chemstone) rezoning application addresses many of the goals of the Comprehensive
Plan as described in the staff report. Elements of the rezoning application have been identified that
should be carefully evaluated to ensure they fully address specific components of the Comprehensive
Plan. In addition, the Planning Commission should ensure that the impacts associated with this rezoning
request have been fully addressed by the applicant. The Planning Commission should pay particular
attention to the following:
I) The Potential impacts associated with more intensive use of properties.
2) The recommendations of the Historic Resources Advisory Board, particularly regarding view
shed coordination and mitigation and Cultural Resource Surveys
3) The potential groundwater, dust, and blasting and view shed impacts on adjacent properties.
PLANNING COMMISSION SUMMARY & ACTION OF THE 04/05/06 MEETING
Planning Staff provided an overview of the application. This was followed by a presentation by the
applicant of their project. During the Planning Commission's initial discussions, Commissioners
wanted to know which State agency, the Department of Mines and Minerals (DMM) or the Department
of Environmental Quality (DEQ), was responsible for overseeing aquifer protection, particularly, the
quality and quantity protection measures. Commissioners suggested that a fund or bond be set up in
escrow if a determination of responsibility for well damage had to be contested. In addition, they
suggested that an agent of the County be assigned as a designated mediator in remediation situations.
Berms were discussed and the case was made for smaller berms with flatter slopes in order to be more
viewshed- friendly. I lgher berms would be necessary in certain limited cases, while a minimum height
was also suggested to conceal the height of a truck. It was suggested that the language should state.
" ...an average of 30 Feet with higher berms as required for proper viewshed conditions.'
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Rezoning #03 -06 — O -N Minerals (Chemstone)
May 22, 2006
Page 12
Commissioners commented that the applicant's proffer statement seemed to be too general and they
would have preferred to see more specificity, particularly dealing with the placement and monitoring of
seismographs, the eight -acre reserve area for Belle Grove, a detailed plan showing the bemis, a detailed
phasing plan, and buffer details.
Due to the Commission's Bylaws requiring a mandatory 11:00 P.M. adjournment, the Planning
Commission did not have enough time to hold the public comment portion of the hearing. The
Planning Commission unanimously agreed to table the rezoning for 60 days, until June 7, 2006.
(All members of the Planning Commission were present.)
PLANNING COMMISSION UPDATE FOR 06/07/06 MEETING:
Staff has not received any materials from the applicant in modification ofthe O -N Minerals Rezoning
Application, RZ03 -06. The concerns and issues identified during the Planning Commission's initial
discussions regarding this application, and the issues identified in the initial staff report, remain ❑n-
addressed.
The Public Hearing for this application was not held during the 04/05/06 Planning Commission meeting
due to time constraints. As a result, the Commission should satisfy the Public Hearing requirements at
the 06/07/06 meeting. The information offered during the Public Hearing should also be a consideration
of the Planning Commission during their evaluation of this rezoning application.
Since the initial 04/05/06 meeting at which the O -N Minerals Rezoning Application was considered,
staff has been provided with numerous correspondence regarding this rezoning application. This
additional public comment, in addition to an updated comment in the form of a resolution from the
Town of Middletown, is included with this rezoning application package for your information.
In addition, at the request of the applicant, staff met with Mr. David Benner, Virginia Department of
Mines, Minerals, and Energy to discuss the role his department plays in permitting and monitoring
proposed and existing operations such as the Chemstone Middletown facility. Staffis confident that the
Department of Mines, Minerals, and Energy will effectively carry out there responsibilities and duties.
However, their responsibilities and duties are limited to the permitting and monitoring of the mining
operations. It was made very clear that coordination with other State Agencies through the permitting
process was minimal. Further, it was made clear that the Department's involvement with the adjacent
property owners was limited and that in no way does the Department take a position in resolving
conflicts that may arise between adjacent property owners and mining companies. The responsibility of
addressing impacts that may be realized by properties in the vicinity of mining operations would rest
with the affected property owner. The locality would have the responsibility of monitoring impacts and
enforcing compliance in cases where the locality accepted proffered conditions aimed at mining
operation impact mitigation.
Rezoning 403 -06 — O -N Minerals (Chemstone)
May 22, 2006
Page 13
Please find attached to end of this report additional correspondence from various sources including The
Town of Middletown, L. Preston Bryant, Commonwealth of Virginia Secretary of Natural Resources,
and Mr. Woodward S. Bousquet.
Followin the requirement for a public hearing, a recommendation
by the Planning- Commission to the Board of Supervisors concerning- this rezoning
application would be appropriate. The applicant should be prepared to adequately
address all concerns raised by the Planning Commission.
F \ 0
REZONING APPLICATION 903 -06
O -N MINERALS (CHEMSTONE)
Staff Report for the Planning Commission
Prepared: March 20, 2006
Staff Contact: Michael T. Ruddy, Deputy Planning Director
This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in making a decision on this
application. It may also be useful to others interested in this zoning matter. Unresolved issues
concerning this application are noted by staff where relevant throughout this staff report.
Reviewed Action
Planning Commission: April 5, 2006 Pending
Board of Supervisors: April 26, 2006 Pending
PROPOSAL To rezone 639.13 acres from RA (Rural Areas) District to EM (Extractive
Manufacturing) District with proffers.
LOCATION The Middle Marsh property is located east of Belle View Lane (Route 758) and west
and adjacent to Hites Road (Route 625). The Northern Reserve is bounded to the south by Cedar Creek
and is west and adjacent to Meadow Mills Road (Route 624).
MAGISTERIAL DISTRICT Back Creek
PROPERTY ID NUMBERS 83 -A -109 and 90 -A -23
PROPERTY ZONING RA (Rural Areas)
PRESENT USE Undeveloped
ADJOINING PROPERTY ZONING & PRESENT USE
North:
RA (Rural Areas)
Use:
Residential
South:
EM (Extractive Manufacturing)
Use:
Shenandoah County
East:
RA (Rural Areas)
Use:
Residential /Agricultural
West:
RA (Rural Areas)
Use:
Residential /Agricultural
PROPOSED USES Quarry
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Rezoning 903 -06 — O -N Minerals (Chemstone)
March 20, 2006
Page 2
REVIEW EVALUATIONS:
Virginia Dept. of Transportation: The documentation within the application to rezone this property
appears to have little measurable impact on Route 757. This route is the VDOT roadway which has
been considered as the access to the property referenced. VDOT is satisfied that the transportation
proffers offered in the Global Stone Chemstone Corporation rezoning application dated June 13, 2005
address transportation concerns associated with this request. Before development, this office will
require a complete set of construction plans detailing entrance designs, drainage features, and traffic
flow data from the LT.E Trip Generation Manual, Seventh Edition for review. VDOT reserves the right
to comment on all right -of -way needs, including right -of -way dedications, traffic signalization and off -
site roadway improvements and drainage. Any work performed on the State's right -of -way must be
covered under a land use permit. This permit is issued by this office and requires an inspection fee and
surety bond coverage.
Fire Marshal Will not directly effect fire and rescue. Plan approval recommended.
Department of Inspections: Demolition permit required prior to removing any existing structures. No
additional comments required.
Public Works Department: Refer to page 4, Environmental Features: The discussion indicated that
an environmental report prepared by Science Applications International Corporation (SAIC) was
included with the impact statement as Appendix `A ". A copy of this report was not included with our
submittal. Please provide us with a copy of this report for our review. Refer to page 6, Soils /Geology:
The geology discussion should be expanded to include hydrogeology and the impact of the project on
the local groundwater. In particular, the subdivisions which rely on groundwater wells for their water
supply. General: The impact analysis has not addressed one very important item related to a rezoning
from RA to EM. That item is the impact or effect of blasting on adjacent residential buildings. This
issue should also be expanded to include the impact of dust on adjacent residential dwellings.
Frederick - Winchester Service Authoritv No comment.
Sanitation Authoritv The Frederick County Sanitation Authority supports this rezoning request. The
Authority will use these pits, when abandoned, as a source of water supply under an agreement with
Global Stone Chemstone Corporation, dated March 2, 2000. Larger pits will provide a more abundant
supply and reliable source of water. Larger pits are also more cost effective for the Authority to develop
as a water supply. That benefits the residents of Frederick County that depend upon the Authority for
water service.
Frederick - Winchester Health Department: The Health Department has no objection if there is to be
no increase in water use which would require sewage disposal.
GIS: No road /name requirements noted. Any road network that provides primary access to four or
more occupied business structures shall be names. Numbering will be assigned as applicable.
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Rezoning 403 -06 — O -N Minerals (Chemstone)
March 20, 2006
Page 3
Department of Parks & Recreation: No comment.
Frederick County Public Schools: Based on the information provided that states no residential units
will be part of the rezoning, there will be no impact to the school population upon build -out.
Winchester Regional Airport: Allowed uses under this rezoning should not effect airside operations
of the Winchester Regional Airport.
Town of Middletown: The Middletown Planning Commission, while not opposed to the project, is
opposed to the increase of truck traffic through Middletown and has concerns about the effect of
excavation on the water table.
Frederick County Attorney: No comments at this time (forthcoming).
Historic Resources Advisory Board: Please seethe attached letter dateddanuary 3, 2006 signed by
Candice E. Perkins, Planner 11.
Planning & Zoning:
1) Site History
The original Frederick County zoning map (U.S.G.S. Middletown Quadrangle) identifies the
subject parcels as being zoned A -2 (Agricultural General). The County's agricultural zoning
districts were subsequently combined to form the RA (Rural Areas) District upon adoption of an
amendment to the Frederick County Zoning Ordinance on May 10, 1989. The corresponding
revision of the zoning map resulted in the re- mapping of the subject property and all other A -1
and A -2 zoned land to the RA District.
2) Comprehensive Poliev Plan
The Frederick County Comprehensive Policy Plan is an official public document that serves as
the community's guide for making decisions regarding development, preservation, public
facilities and other key components of community life. The primary goal of this plan is to
protect and improve the living environment within Frederick County. It is in essence a
composition of policies used to plan for the future physical development of Frederick County.
[Comprehensive Policy Plan, p. 1 -1]
Land Use
The property for which the rezoning is being requested is located within the Rural Areas of
Frederick County. This land use designation is defined in the Comprehensive Plan as all areas
outside of the designated Urban Development Area. The primary land uses in the Rural Areas
are agriculture and forests. The primary growth pattern consisting of widely scattered, large lot
residential development. Many residents of Frederick County are attracted to the natural beauty
4 •
Rezoning #03 -06 — O -N Minerals (Chemstone)
March 20, 2006
Page 4
and special lifestyle found in rural portions of the County. Excessive or inappropriate
development in these areas can reduce their value and attractiveness. At the same time, the rural
areas play an important role in the County's economy through the income generated by
agriculture. [Comprehensive Policy Plan, p. 6 -55]
The subject property contains areas of prime agricultural soils which are generally located in the
limestone belt running north -south through the County. The Comprehensive Plan recognizes the
value to the County's economy of the limestone resources within the County and the extraction
of these natural resources. Within the Business and Industrial Area policies it is recognized that
policies are needed and standards should be developed concerning how to deal with new
requests for large mining operations [Comprehensive Policy Plan, p. 6 -11, 6 -72].
The Rural Areas Conclusion states that most of the County will continue to be rural areas used
for agriculture, forests, or low density residential uses. Certain types of business uses may be
located at scattered rural locations if safe access is available, and if adverse impacts on
surrounding uses and the rural environment can be avoided. These rural business and industrial
uses should be those that provided services to rural areas or that are more appropriate in rural
areas than urban areas. The locations for such business would include major intersections or
locations with recent or existing business activity [Comprehensive Policy Plan, p. 6 -60] Two of
the identified goals of the Rural Area policy are to maintain the rural character of areas outside
the UDA and to protect the rural environment [Comprehensive Policy Plan, p. 6 -76].
Environment
After describing the physical characteristics of the County, the Environment Chapter of the
Comprehensive Plan addresses Water Supply. Issues concerning water quality, quantity, use,
and protection of water resources are directly related to land development activities. Water
supplies are needed to support development, while surface and groundwater are potentially
affected by development activities [Comprehensive Policy Plan, p. 5 -3].
Major sources of water used in the County are groundwater and the North Fork of the
Shenandoah River. In 2000, the Frederick County Sanitation Authority entered a seventy year
lease with Global Stone Chemstone Corporation (Global). Global owns quarries at Clearbrook,
Middletown, and Strasburg. The lease provides the water from these quarries as a source of
supply and transfers title of the quarries to the Frederick County Sanitation Authority when the
mining operations are complete. The agreement has provided a viable long term source of water
for the County [Comprehensive Policy Plan, p. 5 -3]
Groundwater is the major source of water supply in the rural portions of the County and
provides a potential alternative source for urban areas. In all, over half the population of the
County relies on groundwater as the sole source of water supply. The most productive aquifers
in the County are the limestone- carbonate aquifers [Comprehensive Policy Plan, p. 5 -3, 5 -4].
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Rezoning #03 -06 — O -N Minerals (Chemstone)
March 20, 2006
Page 5
Hisfory
The property for which the rezoning is being requested is located adjacent to Belle Grove and
the Cedar Creek Battlefield. Belle Grove and the Cedar Creek Battlefield are historic sites in
Frederick County that are listed on the Virginia Landmarks Register and the National Register
of Historic Places. Cedar Creek is identified as one of six battlefields of great national
importance that are located in Frederick County and Winchester. The Rural Landmarks Survey
of Frederick County further identifies both sites as potentially significant properties. In addition,
the 1992 National Park Service Study of Civil War Sites in the Shenandoah Valley shows a
portion of the property as being within the core battlefield of the Battle of Cedar Creek.
Significant portions of Cedar Creek, along with Third Winchester and Kernstown battlefields
provided the critical mass and the foundation for the Battlefield Network Plan which was
adopted by the Frederick County Board of Supervisors on December 13, 1995, and subsequently
incorporated into the Comprehensive Plan. Excerpts from the Battlefield Network Plan have
been provided for your information. The Battlefield Network Plan and the 1992 National Park
Service Study of Civil War Sites in the Shenandoah Valley were important catalysts for the
designation of the regional Shenandoah Valley Battlefields National Historic District which was
created by Congress in 1996. More recently, the efforts of the Shenandoah Valley National
Battlefields Foundation and the National Park Service continue to further historic preservation
efforts relating to the civil war battlefields located in Frederick County and the broader region.
To address the historic preservation policy goal of protecting the historic resources in Frederick
County, The Comprehensive Plan provides that the Historic Resources Advisory Board (HRAB)
review development proposals which potentially impact significant historic resources and that
the HRAB's information and recommendations are forwarded to the Planning Commission and
Board of Supervisors. The HRAB facilitated the involvement of the historic preservation
stakeholders in the review of this rezoning request. The recommendation of the HRAB
accompanies this report and will be discussed in greater detail later in the report. Identified
implementation methods for promoting the preservation and protection of Civil War Battlefield
resources include the preservation and protection of the historical appearance and character of
the key battlefield sites, their viewsheds, and their approaches, and the coordination of the
battlefield efforts with efforts to protect and preserve natural, visual, and environmental
resources [Comprehensive Policy Plan, p. 2- 11 -13].
Transportation
The Eastern Road Plan of the Comprehensive Policy Plan does not cover this portion of the
County. The properties are located in the Rural Area of the County. A large portion of the roads
within the County are currently inadequate to meet the needs of the areas they serve. There is a
need to insure that improvements to existing rural roads continue to be made in a systematic
way and that new rural roads are provided as needed [Comprehensive Policy Plan, p. 7 -1].
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Rezoning #03 -06 — O -N Minerals (Chemstone)
March 20, 2006
Page 6
In general, the Comprehensive Plan states that a Level of Service (LOS) Category C or better
should be maintained on roads adjacent to and within new developments within the County.
The applicants Traffic Impact Analysis (TIA) seeks to address the transportation impacts
associated with this rezoning request.
3) Site Suitability/Environment
Both properties contain environmentally sensitive areas. The applicant has identified wetlands,
streams, and floodplains, and areas of mature woodlands on the properties. Exhibits have been
provided that depict these environmental features. Any disturbance of identified environmental
resources would occur in conformance with applicable County, State, and Federal regulations.
Watson Run and Middle Marsh Brook are the existing streams that traverse the subject
properties. Both streams have associated floodplain designations.
The General Soil Map of the Soil Survey of Frederick County. Vir t'nia indicates that the soils
comprising the subject parcels fall under the Frederick - Poplimento - Oaklet soil association.
Multiple soil types are located on the sites. The site contains soil types that are considered prime
agricultural soils. The characteristics of this soil type and any implications for site development
are manageable through the site engineering process. It is recognized that the limestone deposits
that underlie the properties provide the ideal geological conditions for Extractive Manufacturing
use. In addition, the most productive aquifers in the County are the limestone- carbonate aquifers
that are present in this area.
4) Potential Impacts
Potential Impact Summary.
In evaluating the O -N Minerals (Chemstone) rezoning application it is very important to
recognize that the applicant has not proffered a commitment to the use of the property beyond
those which would be enabled by the EM (Extractive Manufacturing) District. All land uses,
meeting the applicable development standards, would be permitted within the district based
upon the application as submitted. The County is familiar with the operation and practices of
the existing Middletown Quarry operation and recognizes that the purpose of the rezoning
request is to enable the expansion of the existing limestone ore extraction operation onto
adjacent properties, utilizing this natural resource. However, lacking a commitment that seeks to
further define the scope of operations, this application should be evaluated carefully and with
the understanding that the use of the properties could be more intensive than that described in
the applicant's impact statement.
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Rezoning 403 -06 — 0 -N Minerals (Chemstone)
March 20, 2006
Page 7
Consideration should be given to the maximum possible intensity of EM (Extractive
Manufacturing) use identified in the County's Zoning Ordinance (a copy of the EM (Extractive
Manufacturing District has been provided for your review). The impacts associated with this
rezoning request may be significant and should be understood. The applicant should be prepared
to address the mitigation of the impacts associated with this rezoning request, in particular,
those impacts and issues identified by the reviewing agencies.
Guarantees in the form of proffered conditions have not been offered to ensure that the impacts
generated by this application are limited and consistent with the discussion in the Impact
Statement. The applicant has the ability to address this through the Proffer Statement. When
considering the acreage potential, the dimensional requirements, and the EM District uses, it is
possible that facilities located adjacent to and with access from Chapel Road could result, as
could facilities located within 50 feet of the adjacent RA zoned property surrounding the site.
The scope of the impacts could exceed the projections identified and accommodated in the
impact statement and TIA.
A. Historic Resources
The Frederick County Historic Resources Advisory Board (HRAB) considered the O -N
Minerals (Chemstone) rezoning application during their December 20, 2005 meeting. Invited to
attend the meeting by the HRAB were representatives of the various historical and cultural
groups considered stakeholders in relationship to the historical resources in the vicinity of the
rezoning. The following stakeholder groups were represented: Belle Grove, Cedar Creek
Battlefield Foundation, National Park Service, and the Town of Middletown.
The HRAB reviewed information associated with the 1992 National Park Service Study of Civil
War Sites in the Shenandoah Valley information provided by the applicant as well as
information provided by various groups that were in attendance of the meeting. The 1992
National Park Service Study of Civil War Sites in the Shenandoah Valley shows a portion of the
property in question as being located within the core battlefield of the Battle of Cedar Creek.
The property also contains the site where the Nieswanger Fort once stood.
Historic Resources Advisory Board Concerns
The HRAB expressed concern that the proposed rezoning was not protecting the viewshed of the
battlefield and the Belle Grove property as well as the archeological resources present on the Cedar
Creek Battlefield and the site of the Nieswanger Fort. The HRAB felt that the applicant still needs
to address many issues with this rezoning before it should be considered by the Planning
Commission and Board of Supervisors.
The HRAB expressed that they could support the approval of this project if the suggestions
offered as a result of the HRAB meeting are considered by the applicant in order to mitigate
impacts on the historic resources (Please see HRAB letter dated January 3, 2006, signed by
Candice E. Perkins, Planner II).
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Rezoning #03 -06 — O -N Minerals (Chemstone)
March 20, 2006
Page 8
The applicant has modified their rezoning application in an effort to address two of the nine
comments suggested by the HRAB. However, many of the valid recommendations offered by the
HRAB have not been addressed. Two of the most significant and constructive comments offered by
the HRAB (the first two comments in the letter from the HRAB) should be further satisfied to
ensure that the potential impacts associated of the rezoning are appropriately addressed. Presently,
they have not been addressed in a manner that satisfies the concerns expressed by the HRAB.
The opportunity has been provided for the applicant to work with the identified stakeholders, Belle
Grove, Cedar Creek Battlefield Foundation, and the National Park Service, to prepare a view shed
mitigation plan that addresses the unique view sheds and approaches critical to their particular
points of view. Understanding their points of view, a tailored approach that integrates the natural
landscape with customized berming and landscaping would promote an approach to the view shed
management that mitigates the visual impacts of the mining operations in an effective manner. A
customized approach to the buffering, berming, and landscaping would be more appropriate than
the present approach proposed in the proffer statement. In certain locations, particularly on the
southern property (90- A -23), designating areas of non disturbance would preserve the existing
landscape and by taking advantage of the topography effectively mitigate the visual impacts of the
mining operations. A strategic approach to the location and size of the waste stockpiles identified
on the exhibits should also be a consideration. Current practice at the existing facility with regards
to the stockpiling of overburden should be avoided in the future. Approaches to addressing the
visual impacts of the proposed operations should be more detailed and should be incorporated into
the proffer statement.
The applicant has provided for the dedication to Belle Grove of approximately eight acres as an
historic reserve. This is in an area where archeological resources associated with the Belle Grove
Plantation have previously been identified. A time frame has been provided for the dedication of
this acreage.
The HRAB suggested that a Phase 1 Archeological Survey should be done on the property focusing
on core battlefield areas and the site of the Nieswanger Fort. If warranted subsequent studies should
be performed. The applicant has proffered to complete a Phase 1 Archeological Survey of the
property in the future. However, no commitments have been made beyond a Phase 1 Survey. It
should be clarified that the Survey would be applicable to parcel 90 -A -23 in addition to the stated
parcel 83 -A -109.
The goal of the HRAB comments is to enable the mining operations,to expand in a manner which
is not detrimental to the historical context of the surrounding landscape. Further, to promote an
approach that is mutually beneficial to the applicant, historic preservation stakeholders, and the
adjacent community. The HRAB comments provide the opportunity for O -N Chemstone to
continue to address the needs of the community, minimizing the impacts of their operations in a
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Rezoning 903 -06 — O -N Minerals (Chemstone)
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Page 9
manner that is compatible with the surrounding community, in a manner described in their Impact
Statement.
B. Transportation
Much of the analysis in the Impact Statement is based upon the continuation of the existing
practices of the Middletown quarry operation. The Traffic Impact Analysis (TIA) and the impact
statement suggests that the vehicle trips would increase by more than double from the existing
count of 506 vehicles per day to 1,305 vehicle trips per day. A more significant increase in
Global Stone truck traffic is anticipated in the TIA from 19 trucks per day to 80 per day and an
increase of 56 customer truck trips per day. It should be recognized that a different combination
or additional uses may further increase the traffic impacts associated with this request. As
evidenced at the existing Strasburg facility, additional traffic impacts could be experienced from
a more intensive use of the property than is currently envisioned.
Primary access to the site is depicted as being from the existing site entrance along Route 625
(5` Street) to U.S. Route 11, Main Street in the Town of Middletown. The Town has expressed
their opposition to the increase of truck traffic through Middletown. A significant amount of
discussion regarding the inter -site transfer of materials via a conveyor belt system is offered in
the impact statement. No mention of this approach has been provided in the Proffer Statement.
Therefore, this approach should not presently be part of the consideration of this rezoning
request. As demonstrated in the TIA, a level of service C or better would be achieved at the
intersection of Route 11 and Route 625 (5 Street). Consideration should be given to the
character of the traffic generated from the facility and utilizing the aforementioned intersection.
B. Mining Operations and Community Impacts
Associated with mining operations is the potential for a variety of impacts that may affect
surrounding properties and land uses. The Division of Mineral Mining of the Virginia
Department of Mines is responsible for permitting mining operations within the State of
Virginia including the operations of O -N Chemstone at the Middletown Quarry. The EM
(Extractive Manufacturing) District of the Frederick County Zoning Ordinance provides
additional local requirements that seek to minimize the impacts associated with Extractive
Manufacturing uses. Provisions and performance standards are provided to protect surrounding
uses from adverse impacts. Appropriate landscaping or screening may be required by the Zoning
Administrator or Planning Commission within any required yard setback area in order to
reasonably protect adjacent uses from noise, sight, dust, or other adverse impacts.
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March 20, 2006
Page 10
The County Engineer reviewed the request and provided input expressing concerns regarding
the geological impacts and the potential hydrological impacts, in particular the impact of the
project on the local groundwater which includes the adjacent subdivisions that rely on
groundwater wells for their water supply. With regards to the geology discussion, the impact or
effect of blasting on adjacent residential buildings should be fully considered as should the
impact of dust from the mining operations on adjacent residential dwellings. The Impact
Statement did not fully address these potential impacts. As a result of the input of the County
Engineer the applicant has included proffers that seek to address the groundwater, dust, and
blasting concerns associated with this rezoning request.
In addition to the potential impacts of the proposed mining operations on the view shed from the
historical perspective, serious consideration should be given to the visual impacts on the rural
landscape from the perspective of the adjacent residential landowners and from the perspective
of residents and visitors traveling along Chapel Lane which bisects parcel 83 -A -109 and the
proposed mining operation..
Summary of Impacts:
- Potential impacts associated with more intensive use of properties
- HRAB Concerns
-View shed coordination and mitigation
- Cultural Resource Surveys
- Transportation impacts on Route 625 and its intersection with Route 11
- Potential groundwater, dust, and blasting controls on adjacent properties
- Rural view shed.
5) Proffer Statement — Dated June 13, 2005 and revised January 16, 2006, February 8, 2006,
and February 17, 2006
The applicant has provided that the property shall be developed with Extractive Manufacturing
Land uses.
With regards to site development, the applicant has attempted to limit access to the existing site
entrance, has proffered distance buffers, earthen berms, and landscaping to minimize the
impacts to the view shed of the surrounding community. It should be understood that no
minimum standards have been offered to ensure that the site development proffers will minimize
the potential impacts of the mining operations and address the expressed concerns of the
HRAB.
An eight acre historic reserve to be dedicated to Belle Grove has been proffered by the
applicant.
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A limited Phase 1 Archeological Survey has been proffered by the applicant. It should be
clarified that this proffer is applicable to both parcels subject to the rezoning.
The applicant has guaranteed to the Frederick County Sanitation Authority rights to the
groundwater resources in accordance with existing agreements between the applicant and the
FCSA. The proffer Statement should provide clarification that the future use ql the property and
the development offacilities to support the utilization ofthe groundwater resources are enabled
by this rezoning request and Proffer Statement.
The applicant has stated their intent to monitor, minimize the impacts, and remediate any
impacts associated with groundwater, dust and blasting.
STAFF CONCLUSIONS FOR 04/05/06 PLANNING COMMISSION MEETING:
The O -N Minerals (Chemstone) rezoning application addresses many of the goals of the Comprehensive
Plan as described in the staff report. Elements of the rezoning application have been identified that
should be carefully evaluated to ensure they fully address specific components of the Comprehensive
Plan. In addition, the Planning Commission should ensure that the impacts associated with this rezoning
request have been fully addressed by the applicant. The Planning Commission should pay particular
attention to the following:
1) The Potential impacts associated with more intensive use of properties.
2) The recommendations of the Historic Resources Advisory Board, particularly regarding view
shed coordination and mitigation and Cultural Resource Surveys
3) The potential groundwater, dust, and blasting and view shed impacts on adjacent properties.
Following Me requirement for a public hearing, a recommendation
by the Planning Commission to the Board of Supervisors concerning this rezoning
application would be appropriate. The applicant should be prepared to adequately
address all concerns raised by the Planning Commission.
9 0
January 2006 Chemstone - Middletown
Table of Contents
I. Application
II. Impact Analysis
III. Proposed Proffer Statement
IV. Review Agency Comments
V. Survey Plat and Deed
VI. Tax Ticket
C
0
f
Frederick County, Virginia
E
REZONING APPLICATION MATERIALS
FOR
REVIEW AND APPROVAL
OF THE
CHEMSTONE - MIDDLETOWN
PROPERTY
Back Creek Magisterial District
January 2006
- -. - -- - -- i _
Ir
II!
MAR 1 0 2006
r T
JAN 2 0 2006
Prepared by:
Patton Harris Rust & Associates, pc
117 E. Piccadilly Street
Suite 200
Winchester, Virginia 22601
Phone: 540 -667 -2139 Fax: 540 -665 -0493
PHA
0
REZONING APPLICATION #03 -06
O -N MINERALS (CHEMSTONE)
Staff Report for the Board of Supervisors
Prepared: April 14, 2008
(Original prepared on March 20, 2006 and May 22, 2006)
Staff Contact: Michael T. Ruddy, AICP, Deputy Planning Director
BOARD OF SUPERVISORS UPDATE AND PLANNING COMMISSION
RECOMMENDATION FOR 04/23/08 MEETING.
The Planning Commission had a considerable amount of discussion regarding this application and
numerous issues and concerns were raised by the Commission. Fifty -seven (57) citizens spoke during
the Public Hearing for this request. The Commission recognized conflicts with the goals of the
Comprehensive Policy Plan as identified in the staff report and acknowledged significant issues and
impacts associated with the request that had not been satisfactorily addressed by the Applicant.
These included the following:
- Potential impacts associated with the scope and more intensive use of properties.
- Historic resource concerns (HRAB)
-View shed coordination and mitigation
- Cultural Resource Surveys
- Environmental impacts.
- Rural view shed impacts.
- Transportation impacts on Route 625, its intersection with Route 11, and the Town.
- Potential groundwater, dust, and blasting impacts and controls on adjacent properties.
Ultimatelv, the Plannin14 Commission forwarded a recommendation of denial to the Board of
Supervisors.
_ Following the Commission's review, the Applicant has provided a revised Proffer Statement. However,
the modifications in the Proffer Statement are relatively limited and focus upon recognition of the two
historical cemeteries discovered on the property and a phasing plan for the quarry.
In summary, while the O -N Minerals (Chemstone) rezoning application addresses several of the goals
of the Comprehensive Plan, more significant elements of the rezoning application have been identified
that should be carefully evaluated to ensure they fully address specific components of the
Comprehensive Plan. In addition, the Board of Supervisors should ensure that the impacts associated
with this rezoning request have been fully addressed by the applicant. These would include:
1) The Potential impacts associated with more intensive use of properties and the scope of the use.
2) The recommendations of the Historic Resources Advisory Board, particularly regarding view
shed coordination and mitigation and Cultural Resource Surveys,
3) The potential groundwater, dust, and blasting and view shed impacts on adjacent properties.
4) Transportation impacts, particularly within the Town of Middletown.
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0
The following materials are provided in this package for the Board's review and information.
I. Updated Staff Report
2. Appendix A, Planning Commission Review Infonnation
3. Attached Correspondance
4. Rezoning Materials
5. Verbatim section of the Planning Commission's discussion for your information
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Page 3
This report is prepared by the Frederick County Planning Staff to provide information to the
Planning Commission and the Board of Supervisors to assist them in "taking a decision on this
application. It may also be useful to others interested in this zoning matter. Unresolved issues
concerning this application are noted by staff where relevant throughout this staff report.
Reviewed Action
Planning Commission: April 5, 2006 Tabled 60 days
June 7, 2006 Recommended Denial
Board of Supervisors: April 23, 2008 Pending
PROPOSAL To rezone 639.13 acres from RA (Rural Areas) District to EM (Extractive
Manufacturing) District with proffers.
LOCATION The Middle Marsh property is located east of Belle View Lane (Route 758), west and
adjacent to Hites Road (Route 625), and is bisected by Chapel Road (Route 627). The Northern
Reserve is bounded to the south by Cedar Creek and is west and adjacent to Meadow Mills Road (Route
624).
MAGISTERIAL DISTRICT Back Creek
PROPERTY ID NUMBERS 83 -A -109 and 90 -A -23
PROPERTY ZONING RA (Rural Areas)
PRESENT USE Undeveloped
ADJOINING PROPERTY ZONING & PRESENT USE
North:
RA (Rural Areas)
Use:
Residential
South:
EM (Extractive Manufacturing)
Use:
Shenandoah County
East:
RA (Rural Areas)
Use:
Residential /Agricultural
West:
RA (Rural Areas)
Use:
Residential /Agricultural
PROPOSED USES Quarry
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REVIEW EVALUATIONS:
Virginia Dept. of Transportation: The documentation within the application to rezone this property
appears to have little measurable impact on Route 757. This route is the VDOT roadway which has
been considered as the access to the property referenced. VDOT is satisfied that the transportation
proffers offered in the Global Stone Chemstone Corporation rezoning application dated June 13, 2005
address transportation concerns associated with this request. Before development, this office will
require a complete set of construction plans detailing entrance designs, drainage features, and traffic
flow data from the I.T.E Trip Generation Manual, Seventh Edition for review. VDOT reserves the right
to comment on all right -of -way needs, including right -of -way dedications, traffic signalization and off-
site roadway improvements and drainage. Any work performed on the State's right -of -way must be
covered under a land use permit. This permit is issued by this office and requires an inspection fee and
surety bond coverage.
Fire Marshal Will.not directly effect fire and rescue. Plan approval recommended.
Department of Inspections: Demolition permit required prior to removing any existing structures. No
additional comments
Public Works Department: Refer to page 4, Environmental Features: The discussion indicated that
an environmental report prepared by Science Applications International Corporation (SAIC) was
included with the impact statement as Appendix "A ". A copy of this report was not included with our
submittal. Please provide us with a copy of this report for our review. Refer to page 6, Soils /Geology:
The geology discussion should be expanded to include hydrogeology and the impact of the project on
the local groundwater. In particular, the subdivisions which rely on groundwater wells for their water
supply. General: The impact analysis has not addressed one very important item related to a rezoning
from RA to EM. That item is the impactor effect of blasting on adjacent residential buildings. This
issue should also be expanded to include the impact of dust on adjacent residential dwellings.
Frederick - Winchester Service Authority No comment.
Sanitation Authoritv The Frederick County Sanitation Authority supports this rezoning request. The
Authority will use these pits, when abandoned, as a source of water supply under an agreement with
Global Stone Chemstone Corporation, dated March 2, 2000. Larger pits will provide a more abundant
supply and reliable source of water. Larger pits are also more cost effective for the Authority to develop
as a water supply. That benefits the residents of Frederick County that depend upon the Authority for
water service.
Frederick - Winchester Health Department: The Health Department has no objection if there is to be
no increase in water use which would require sewage disposal.
CIS: No road /name requirements noted. Any road network that provides primary access to four or
more occupied business structures shall be names. Numbering will be assigned as applicable.
Rezoning #03 -06 — O -N Minerals (Chemstone)
April 14, 2008
Page 5
Department of Parks & Recreation: No comment.
Frederick County Public Schools: Based on the information provided that states no residential units
will be part of the rezoning, there will be no impact to the school population upon build -out.
Winchester Regional Airport: Allowed uses under this rezoning should not effect airside operations
of the Winchester Regional Airport.
Town of Middletown: The Middletown Town Council provided the County with a resolution
opposing this rezoning request. Please see attached resolution dated May 8, 2006
Frederick Countv Attorney: Please see attached correspondence from Mr. Bob Mitchell datedApril
4, 2008 and April 11, 2008.
Historic Resources Advisory Board: Please seethe attached letter dated January 3, 2006, signed by
Candice E. Perkins, Planner IL
PlanninE & Zoning:
1) Site History
The original Frederick County zoning map (U.S.G.S. Middletown Quadrangle) identifies the
subject parcels as being zoned A -2 (Agricultural General). The County's agricultural zoning
districts were subsequently combined to form the RA (Rural Areas) District upon adoption of an
amendment to the Frederick County Zoning Ordinance on May 10, 1989. The corresponding
revision of the zoning map resulted in the re- mapping of the subject property and all other A -1
and A -2 zoned land to the RA District.
2) Comprehensive Policy Plan
The Frederick County Comprehensive Policy Plan is an official public document that serves as
the community's guide for making decisions regarding development, preservation, public
facilities and other key components of community life. The primary goal of this plan is to
protect and improve the living environment within Frederick County. It is in essence a
composition of policies used to plan for the future physical development of Frederick County.
[Comprehensive Policy Plan, p. 1 -1]
Land Use
The property for which the rezoning is being requested is located within the Rural Areas of
Frederick County. This land use designation is defined in the Comprehensive Plan as all areas
outside of the designated Urban Development Area. The primary land uses in the Rural Areas
are agriculture and forests. The primary growth pattern consisting of widely scattered, large lot
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Page 6
residential development. Many residents of Frederick County are attracted to the natural beauty
and special lifestyle found in rural portions of the County. Excessive or inappropriate
development in these areas can reduce their value and attractiveness. At the same time, the rural
areas play an important role in the County's economy through the income generated by
agriculture. [Comprehensive Policy Plan, p. 6 -551
The subject property contains areas of prime agricultural soils which are generally located in the
limestone belt running north -south through the County. The Comprehensive Plan recognizes the
value to the County's economy of the limestone resources within the County and the extraction
of these natural resources. Within the Business and Industrial Area policies it is recognized that
policies are needed and standards should be developed concerning how to deal with new
requests for large mining operations [Comprehensive Policy Plan, p. 6 -11, 6 -72].
The Rural Areas Conclusion states that most of the County will continue to be rural areas used
for agriculture, forests, or low density residential uses. Certain types of business uses may be
located at scattered rural locations if safe access is available, and if adverse impacts on
surrounding uses and the rural environment can be avoided. These rural business and industrial
uses should be those that provided services to rural areas or that are more appropriate in rural
areas than urban areas. The locations for such business would include major intersections or
locations with recent or existing business activity [Comprehensive PohcyPlan, p. 6 -60] "fwo of
the identified goals of the Rural Area policy are to maintain the rural character of areas outside
the UDA and to protect the rural environment [Comprehensive Policy Plan, p. 6 -76].
Environment
The Comprehensive Plan recognizes the need to promote environmental issues and protect the
environment in several locations. Specific goals of the Environmental Chapter include
identifying and protecting important natural resources and protecting the natural environment
from damage due to development activity. After describing the physical characteristics of the
County, the Environment Chapter of the Comprehensive Plan addresses Water Supply. Issues
concerning water quality, quantity, use, and protection of water resources are directly related to
land development activities. Water supplies are needed to support development, while surface
and groundwater are potentially affected by development activities [Comprehensive Policy
Plan, p. 5 -3].
Major sources of water used in the County are groundwater and the North Fork of the
Shenandoah River. In 2000, the Frederick County Sanitation Authority entered a seventy year
lease with Global Stone Chemstone Corporation (Global). Global owns quarries at Clearbrook,
Middletown, and Strasburg. The lease provides the water from these quarries as a source of
supply and transfers title of the quarries to the Frederick County Sanitation Authority when the
mining operations are complete. The agreement has provided a viable long term source of water
for the County [Comprehensive Policy Plan, p. 5 -3]
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Groundwater is the major source of water supply in the rural portions of the County and
provides a potential alternative source for urban areas. In all, over half the population of the
County relies on groundwater as the sole source of water supply. The most productive aquifers
in the County are the limestone - carbonate aquifers [Comprehensive Policy Plan, p. 5-3, 5 -41.
Hisiory
The property for which the rezoning is being requested is located adjacent to Belle Grove and
the Cedar Creek Battlefield. Belle Grove and the Cedar Creek Battlefield are historic sites in
Frederick County that are listed on the Virginia Landmarks Register and the National Register
of Historic Places. Cedar Creek is identified as one of six battlefields of great national
importance that are located in Frederick County and Winchester. The Rural Landmarks Survey
of Frederick County further identifies both sites as potentially significant properties. In addition,
the 1992 National Park Service Study of Civil War Sites in the Shenandoah Valley shows a
portion of the property as being within the core battlefield of the Battle of Cedar Creek.
Significant portions of Cedar Creek, along with Third Winchester and Kernstown battlefields
provided the critical mass and the foundation for the Battlefield Network Plan which was
adopted by the Frederick County Board of Supervisors on December 13, 1995, and subsequently
incorporated into the Comprehensive Plan. Excerpts from the Battlefield Network Plan have
been provided for your information. The Battlefield Network Plan and the 1992 National Park
Service Study of Civil War Sites in the Shenandoah Valley were important catalysts for the
designation of the regional Shenandoah Valley Battlefields National Historic District which was
created by Congress in 1996. More recently, the efforts of the Shenandoah Valley National
Battlefields Foundation and the National Park Service continue to further historic preservation
efforts relating to the civil war battlefields located in Frederick County and the broader region.
To address the historic preservation policy goal of protecting the historic resources in Frederick
County, The Comprehensive Plan provides that the Historic Resources Advisory Board (HRAB)
review development proposals which potentially impact significant historic resources and that
the HRAB's information and recommendations are forwarded to the Planning Commission and
Board of Supervisors. The HRAB facilitated the involvement of the historic preservation
stakeholders in the review of this rezoning request. The recommendation of the HRAB
accompanies this report and will be discussed in greater detail later in the report. Identified
implementation methods for promoting the preservation and protection of Civil War Battlefield
resources include the preservation and protection of the historical appearance and character of
the key battlefield sites, their viewsheds, and their approaches, and the coordination of the
battlefield efforts with efforts to protect and preserve natural, visual, and environmental
resources [Comprehensive Policy Plan, p. 2- 11 -13].
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7ransporlalion
The Eastern Road Plan of the Comprehensive Policy Plan does not cover this portion of the
County. The properties are located in the Rural Area of the County. A large portion of the roads
within the County are currently inadequate to meet the needs of the areas they serve. There is a
need to insure that improvements to existing rural roads continue to be made in a systematic
way and that new rural roads are provided as needed [Comprehensive Policy Plan, p. 7 -1].
In general, the Comprehensive Plan states that a Level of Service (LOS) Category C or better
should be maintained on roads adjacent to and within new developments within the County.
The applicants Traffic Impact Analysis (TIA) seeks to address the transportation impacts
associated with this rezoning request. However, the TIA does not account for the character of
the truck traffic and does not evaluate the heavy truck traffic's impact on the context of the
streets within the Town of Middletown.
3) Site Suitabilit-OEnvironment
Both properties contain environmentally sensitive areas. The applicant has identified wetlands,
streams, and floodplains, and areas of mature woodlands on the properties. Exhibits have been
provided that depict these environmental features. Any disturbance of identified environmental
resources would occur in conformance with applicable County, State, and Federal regulations.
Cedar Creek forms the Southern boundary of the property. Cedar Creek, with its steep slopes,
cliffs, and associated floodplain is a significant environmental resource for Frederick County
and the adjoining Shenandoah County. Watson Run and Middle Marsh Brook are the existing
streams that traverse the subject properties. Both streams have associated floodplain
designations. It must be recognized that the proposed mining operation would most
significantly impact Middle Marsh Brook which would be relocated to allow for the excavation
of the mining pit.
The General Soil Map of the Soil Survey of Frederick County. Virginia indicates that the soils
comprising the subject parcels fall under the Frederick - Poplimento - Oaklet soil association.
Multiple soil types are located on the sites. The site contains soil types that are considered prime
agricultural soils. The characteristics of this soil type and any implications for site development
are manageable through the site engineering process. It is recognized that the limestone deposits
that underlie the properties provide the ideal geological conditions for Extractive Manufacturing
use. In addition, the most productive aquifers in the County are the limestone- carbonate aquifers
that are present in this area.
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4) Potential Impacts
Potential Impact Summary.
The County is familiar with the operation and practices of the existing Middletown Quarry
operation and recognizes that the purpose of the rezoning request is to enable the expansion of
the existing limestone ore extraction operation onto adjacent properties, utilizing this natural
resource. However, lacking a commitment that seeks to further define the scope of operations,
this application should be evaluated carefully and with the understanding that the use of the
properties could be more intensive than that described in the applicant's impact statement.
In evaluating the O -N Minerals (Chemstone) rezoning application it is very important to
recognize that the applicant has proffered a commitment to not engage in several land uses
permitted within the EM (Extractive Manufacturing) District. However, the use of the property
as enabled by the EM (Extractive Manufacturing) District, beyond those land uses which would
be eliminated, would have a major impact both on -site and off -site. Significant land uses,
meeting the applicable development standards, would be permitted within the district based
upon the application as submitted.
Consideration should be given to the maximum possible intensity of EM (Extractive
Manufacturing) use identified in the County's Zoning Ordinance (a copy of the EM (Extractive
Manufacturing District has been provided for your review). The impacts associated with this
rezoning request may be significant and should be understood. The applicant should be prepared
to continue to address the mitigation of the impacts associated with this rezoning request, in
particular, those impacts and issues identified by the reviewing agencies, Commission, and
Board of Supervisors.
Guarantees in the form of proffered conditions have not been offered to ensure that the impacts
generated by this application are limited and consistent with the discussion in the Impact
Statement. The applicant has the ability to address this through the Proffer Statement. When
considering the acreage potential,.the dimensional requirements, and the EM District uses, it is
possible that facilities located adjacent to and with access from Chapel Road could result, as
could facilities located within 50 feet of the adjacent RA zoned property surrounding the site.
The scope of the impacts could exceed the projections identified and accommodated in the
impact statement and TIA.
Frederick County's Zoning Ordinance and Zoning Amendment Process seek to ensure that the
impacts of a particular Zoning Amendment are fully identified, analyzed, and addressed before
an amendment is approved. It is essential that the impacts are known prior to the rezoning, so
the mitigation or avoidance of identified impacts can be recognized in the request and proffer
statement. In general, the proffer statement and generalized development plan provide the
Applicant with the opportunity to further define the scope of the land use activity on the
property. Limiting the potential acreage of development, new facility construction, and further
limiting the type of uses on the property would limit the potential impacts of the EM
development of this property.
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It is evident that many of the potential impacts of this request are unknown and have not been
clearly identified in the impact analysis. The potential scope of the impacts are not fully
understood. The most significant example of this with this application is the historic and
cultural resources.
A. Historic Resources
The Frederick County Historic Resources Advisory Board (HRAB) considered the O -N
Minerals (Chemstone) rezoning application during their December 20, 2005 meeting. Invited to
attend the meeting by the FIRAB were representatives of the various historical and cultural
groups considered stakeholders in relationship to the historical resources in the vicinity of the
rezoning. The following stakeholder groups were represented: Belle Grove, Cedar Creek
Battlefield Foundation, National Park Service, and the Town of Middletown.
The HRAB reviewed information associated with the 1992 National Park Service Study of Civil
War Sites in the Shenandoah Valley information provided by the applicant as well as
information provided by various groups that were in attendance of the meeting. The 1992
National Park Service Study of Civil War Sites in the Shenandoah Valley shows a portion of the
property in question as being located within the core battlefield of the Battle of Cedar Creek.
The property also contains the site where the Nieswanger Fort once stood.
Historic Resources Advisory Board Concerns
The FIRAB expressed concern that the proposed rezoning was not protecting the viewshed of the
battlefield and the Belle Grove property as well as the archeological resources present on the Cedar
Creek Battlefield and the site of the Nieswanger Fort. The FIRAB felt that the applicant still needs
to address many issues with this rezoning before it should be considered by the Planning
Commission and Board of Supervisors.
The HRAB expressed that they could support the approval of this project if the suggestions
offered as a result of the HRAB meeting are considered by the applicant in order to mitigate
impacts on the historic resources (Please see HRAB Teller dated January 3, 2006, signed by
Candice E. Perkins. Planner II).
The applicant has modified their rezoning application in an effort to address two of the nine
comments suggested by the HRAB. However, many of the valid recommendations offered by the
HRAB have not been addressed. Two of the most significant and constructive comments offered by
the HRAB (the first two comments in the letter from the HRAB) should be further satisfied to
ensure that the potential impacts associated of the rezoning are appropriately addressed. Presently,
they have not been addressed in a manner that satisfies the concerns expressed by the I -M-AB.
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The opportunity has been provided for the applicant to work with the identified stakeholders, Belle
Grove, Cedar Creek Battlefield Foundation. and the National Park Service, to prepare a view shed
mitigation plan that addresses the unique view sheds and approaches critical to their particular
points of view. Understanding their points of view, a tailored approach that integrates the natural
landscape with customized berming and landscaping would promote an approach to the view shed
management that mitigates the visual impacts of the mining operations in an effective manner. A
customized approach to the buffering, berming, and landscaping would be more appropriate than
the present approach proposed in the proffer statement. In certain locations, particularly on the
southern property (90- A -23), designating areas of non disturbance would preserve the existing
landscape and by taking advantage of the topography effectively mitigate the visual impacts of the
mining operations. A strategic approach to the location and size of the waste stockpiles identified
on the exhibits should also be a consideration. Current practice at the existing facility with regards
to the stockpiling of overburden should be avoided in the future. Approaches to addressing the
visual impacts of the proposed operations should be more detailed and should be incorporated into
the proffer statement.
The applicant has provided for the dedication of approximately eight acres as an historic reserve.
This is in an area where archeological resources associated with the Belle Grove Plantation have
previously been identified. A time frame has been provided for the dedication of this acreage.
However, an appropriate recipient has not been identified in the latest proffer statement.
Previously, the Applicant had proffered the dedication to Belle Grove. This is the entity
recommended to be the recipient by the County Attorney.
The HRAB suggested that a Phase I Archeological Survey should be done on the property focusing
on core battlefield areas and the site of the Nieswanger Fort. If warranted subsequent studies should
be performed. The applicant has proffered to complete a Phase 1 Archeological Survey of the
property in the future. However, no commitments have been made beyond a Phase I Survey.
Further, this survey is proffered to occur after the rezoning of the property rather than before.
The goal of the HRAB comments is to enable the mining operations to expand in a manner which
is not detrimental to the historical context of the surrounding landscape. Further, to promote an
approach that is mutually beneficial to the applicant, historic preservation stakeholders, and the
adjacent community. The HRAB comments provide the opportunity for O -N Chemstone to
continue to address the needs of the community, minimizing the impacts of their operations in a
manner that is compatible with the surrounding community, in a manner described in their Impact
Statement.
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April 14, 2008
Page 12
Subsequent to the Planning Commission's review of this application, two historic cemeteries
have been identified by the Applicant, the historic Tabler and Nisewander Family Cemeteries.
A report regarding these cemeteries is provided with your agenda
B. Transportation
Much of the analysis in the Impact Statement is based upon the continuation of the existing
practices of the Middletown quarry operation. The Traffic Impact Analysis (TIA) and the impact
statement suggests that the vehicle trips would increase by more than double from the existing
count of 506 vehicles per day to 1,305 vehicle trips per day. A more significant increase in
Global Stone truck traffic is anticipated in the TIA from 19 trucks per day to 80 per day and an
increase of 56 customer truck trips per day. It should be recognized that a different combination
or additional uses may further increase the traffic impacts associated with this request. As
evidenced at the existing Strasburg facility, additional traffic impacts could be experienced from
a more intensive use of the property than is currently envisioned. The Applicant has proposed a
restriction to the truck traffic. However, this would still enable considerable amount of traffic,
particularly, heavy truck traffic. In addition, the mechanism to administer this proffer is
problematic to the County as it creates an undesirable, ongoing enforcement issue. This should
be avoided.
Primary access to the site is depicted as being from the existing site entrance along Route 625
(5 "' Street) to U.S. Route 11, Main Street in the Town of Middletown. The Town has expressed
their opposition to the increase of truck traffic through Middletown. Previously, a significant
amount of discussion regarding the inter -site transfer of materials via a conveyor belt system is
offered in the impact statement. This approach should not presently be part of the consideration
of this rezoning request. As demonstrated in the TIA, a level of service C or better would be
achieved at the intersection of Route 11 and Route 625 (5` Street). Consideration should be
given to the character of the traffic generated from the facility and utilizing the aforementioned
intersection. The traffic will be predominantly large, heavy truck traffic which would have a
greater impact on the rural and small town context of the streets within Middletown. Noise and
dust from the heavy truck traffic has been an issue in the past and would likely continue to be in
the future.
B. Mining Operations and Community Impacts
Associated with mining operations is the potential for a variety of impacts that may affect
surrounding properties and land uses. The Division of Mineral Mining of the Virginia
Department of Mines is responsible for permitting mining operations within the State of
Virginia including the operations of O -N Chemstone at the Middletown Quarry. The EM
(Extractive Manufacturing) District of the Frederick County Zoning Ordinance provides
additional local requirements that seek to minimize the impacts associated with Extractive
Manufacturing uses. Provisions and performance standards are provided to protect surrounding
uses from adverse impacts. Appropriate landscaping or screening may be required by the Zoning
Rezoning 903 -06 — O -N Minerals (Chemstone)
April 14, 2008
Page 13
Administrator or Planning Commission within any required yard setback area in order to
reasonably protect adjacent uses from noise, sight, dust, or other adverse impacts.
The County Engineer reviewed the request and provided input expressing concerns regarding
the geological impacts and the potential hydrological impacts, in particular the impact of the
project on the local groundwater which includes the adjacent subdivisions that rely on
groundwater wells for their water supply. With regards to the geology discussion, the impactor
effect of blasting on adjacent residential buildings should be fully considered as should the
impact of dust from the mining operations on adjacent residential. dwellings. The Impact
Statement did not fully address these potential impacts. As a result of the input of the County
Engineer, the applicant has included proffers that seek to address the groundwater, dust, and
blasting concerns associated with this rezoning request. In addition, mechanisms have been
proffered to help resolve issues that may occur in the future.
In addition to the potential impacts of the proposed mining operations on the view shed from the
historical perspective, serious consideration should be given to the visual impacts on the rural
landscape from the perspective of the adjacent residential landowners and from the perspective
of residents and visitors traveling along Chapel Lane which bisects parcel 83 -A -109 and the
proposed mining operation.
Summary of Impacts:
- Potential impacts associated with the more intensive use of properties
- Historic Resource Concerns (HRAB)
-View shed coordination and mitigation
- Cultural Resource Surveys
- Environmental Impacts
- Rural view shed.
- Transportation impacts on Route 625, its intersection with Route 11, and the
Town.
- Potential groundwater, dust, and blasting impacts and controls on adjacent
properties.
5) Proffer Statement — Dated March 18, 2008 (Previous revisions dated June 13, 2005, January
16, 2006, February 8, 2006, February 17, 2006, and August 28, 2006)
Please see the commentsprovided by Mr. Bob Mitchell regarding this latest proffer Statement
April 4, 2008 and April 11, 2008.
The applicant has provided that the property shall be developed with EM (Extractive
Manufacturing) Land uses. The Applicant has further restricted several EM (Extractive
Manufacturing) land uses.
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Page 14
With regards to site development, the applicant has attempted to limit access to the existing site
entrance, has proffered distance buffers, earthen berms, and landscaping to minimize the
impacts to the view shed of the surrounding community. It should be understood that no
minimum standards have been offered to ensure that the site development proffers will
minimize the potential impacts of the mining operations on the surrounding community and
address the expressed concerns of the HRAB.
An eight acre historic reserve to be dedicated to a recognized historic group has been proffered
by the applicant. The County Attorney has recommended that this entity be Belle Grove.
I
A limited Phase 1 Archeological Survey has been proffered by the applicant. No commitments
have been made beyond a Phase I Survey. Further, the survey would only occur following
the approval of the rezoning. The resources, and impacts to these resources if any, should be
known prior to rezoning.
The Applicant has proffered to preserve the two cemeteries that were identified on the property.
These cemeteries were only recognized following the public input provided during the Planning
Commission review process. The Applicant has proffered to preserve these resources within the
context of the mining operation.
The Applicant has proffered to keep its mining operations at least 200 feet from Cedar Creek.
No other commitment regarding the protection of this resource has been provided.
The applicant has guaranteed to the Frederick County Sanitation Authority rights to the
groundwater resources in accordance with existing agreements between the applicant and the
FCSA.
The applicant has stated their intent to monitor, minimize the impacts, and remediate any
impacts associated with groundwater, dust, and blasting; has proposed to perform voluntary pre -
blast surveys on adjacent properties and wells; and has included a bonding mechanism as
security.
An additional proffer has been included following the Planning Commission's review which
seeks to address the phasing of mining activities. Mining in the Northern Reserve would occur
immediately following the approval of the rezoning; mining in the area south of Chapel Road
would commence no earlier than ten years from the date of the rezoning; and mining in the area
north of Chapel Road would commence no earlier than twenty years from the date of the
rezoning.
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APPENDIX A — PLANNING COMMISSION REVIEW INFORMATION
STAFF CONCLUSIONS FOR 04/05/06 PLANNING COMMISSION MEETING:
The O -N Minerals (Chemstone) rezoning application addresses many ofthe goals of the Comprehensive
Plan as described in the staff report. Elements of the rezoning application have been identified that
should be carefully evaluated to ensure they fully address specific components of the Comprehensive
Plan. In addition, the Planning Commission should ensure that the impacts associated with this rezoning
request have been fully addressed by the applicant. The Planning Commission should pay particular
attention to the following:
1) The Potential impacts associated with more intensive use of properties.
2) The recommendations of the Historic Resources Advisory Board, particularly regarding view
shed coordination and mitigation and Cultural Resource Surveys
3) The potential groundwater, dust, and blasting and view shed impacts on adjacent properties.
4) Transportation impacts, particularly within the Town of Middletown.
PLANNING COMMISSION SUMMARY & ACTION OF THE 04/05/06 MEETING
Plaiming Staff provided an overview of the application. This was followed by a presentation by the
applicant of their project. During the Planning Commission's initial discussions, Commissioners
wanted to know which State agency, the Department of Mines and Minerals (DMM) or the Department
of Environmental Quality (DEQ), was responsible for overseeing aquifer protection, particularly, the
quality and quantity protection measures. Commissioners suggested that a'fund or bond be set up in
escrow if a determination of responsibility for well damage had to be contested. In addition, they
suggested that an agent of the County be assigned as a designated mediator in remediation situations.
Berms were discussed and the case was made for smaller berms with flatter slopes in order to be more
viewshed- friendly. Higher berms would be necessary in certain limited cases, while a minimum height
was also suggested to conceal the height of a truck. It was suggested that the language should state,
" ...an average of 30 feet with higher berms as required for proper viewshed conditions."
Commissioners commented that the applicant's proffer statement seemed to be too general and they
would have preferred to see more specificity, particularly dealing with the placement and monitoring of
seismographs, the eight -acre reserve area for Belle Grove, a detailed plan showing the berms, a detailed
phasing plan, and buffer details.
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April 14, 2008
Page 16
Due to the Commission's Bylaws requiring a mandatory 11:00 p.m. adjournment, the Planning
Commission did not have enough time to hold the public comment portion of the hearing. The
Planning Commission unanimously agreed to table the rezoning for 60 days, until June 7, 2006.
(All members of the Planning Commission were present.)
PLANNING COMMISSION UPDATE FOR 06/07/06 MEETING:
Staff has not received any materials from the applicant in modification of the O -N Minerals Rezoning
Application, RZ03 -06. The concerns and issues identified during the Planning Commission's initial
discussions regarding this application, and the issues identified in the initial staff report, remain un-
addressed.
The Public Hearing for this application was not held during the 04/05/06 Planning Commission meeting
due to time constraints. As a result, the Commission should satisfy the Public Hearing requirements at
the 06/07/06 meeting. The information offered during the Public Hearing should also be a consideration
of the Planning Commission during their evaluation of this rezoning application.
Since the initial 04/05/06 meeting at which the O -N Minerals Rezoning Application was considered,
staff has been provided with numerous correspondence regarding this rezoning application. This
additional public comment, in addition to an updated comment in the form of a resolution from the
Town of Middletown, is included with this rezoning application package for your information.
In addition, at the request of the applicant, staff met with Mr. David Benner, Virginia Department of
Mines, Minerals, and Energy to discuss the role his department plays in permitting and monitoring .
proposed and existing operations such as the Chemstone Middletown facility. Staff is confident that the
Department of Mines, Minerals, and Energy will effectively carry out their responsibilities and duties.
However, their responsibilities and duties are limited to the permitting and monitoring of the mining
operations. It was made very clear that coordination with other State Agencies through the permitting
process was minimal. Further, it was made clear that the Department's involvement with the adjacent
property owners was limited and that in no way does the Department take a position in resolving
conflicts that may arise between adjacent property owners and mining companies. The responsibility of
addressing impacts that may be realized by properties in the vicinity of mining operations would rest
with the affected property owner. The locality would have the responsibility of monitoring impacts and
enforcing compliance in cases where the locality accepted proffered conditions aimed at mining
operation impact mitigation.
Please find attached to end of this report additional correspondence from various sources including The
Town of Middletown, L. Preston Bryant, Commonwealth of Virginia Secretary of Natural Resources,
and Mr. Woodward S. Bousquet.
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PLANNING COMMISSION SUMMARY & ACTION OF THE 06/07/06 MEETING
Fifty -seven citizens spoke at the Planning Commission's public hearing on June 7, 2006. Of the 57
citizens, 55 persons spoke in opposition to the rezoning and two spoke in favor of the rezoning.
Included in the 55 persons who spoke in opposition were representatives of various historic,
environmental, and state agencies, such as the Cedar Creek Battlefield Foundation, the Belle Grove
Plantation, the National Park Service at Cedar Creek and Belle Grove National Historic Park, the
Headwaters Conservation for the Potomac Conservancy, and the Greater Middletown Business
Association. Many speakers belonged to a citizens group called Preserve Frederick, some were local
business owners, and other speakers were simply residents of Middletown and the surrounding area.
Letters were received from the Commonwealth of Virginia's Secretary of Natural Resources, the
Shenandoah Valley Battlefields Foundation, the National Trust for Historic Preservation, and the Belle
Grove Plantation, along with numerous citizen letters and petitions. Following is an abbreviated
summary of the concerns raised by speakers in opposition to the rezoning.
Representatives for the historic, environmental, and state agencies expressed concern that the request to
expand mining operations and change the zoning on 639 acres would negatively impact the historic
view shed and landscape. Agency representatives encouraged the quarry to undertake a comprehensive
view shed analysis and present a written plan and timeline to mitigate, remove, screen, and /or plant the
existing large waste pile to the northwest of Belle Grove, which was visible from both the Belle Grove
and Cedar Creek property and was already problematic in terms of the historic landscape. Public health
and safety issues were raised concerning increased truck traffic through Middletown and along Valley
Pike. Concern was raised that the increase in heavy commercial vehicles would envelope the
community in constant background noise and added air pollution, which currently deposits a grey layer
of fine limestone particles and diesel soot on most exterior surfaces. Problems with existing truck
traffic through Middletown were expressed, noting the challenge faced by both residents and tourists
alike. The Greater Middletown Business Association noted that Middletown's retail businesses derive
the majority of their income from tourism and it was critical that the community continues to be a
desirable destination for tourists. Concern was expressed for the air quality and fugitive dust emissions,
noise, and vibration from blasting, particularly to Belle Grove. Regarding the environment, a recent
report published in conjunction with Shenandoah University, detailed the ecological and historic
context of the Cedar Creek Watershed. The report revealed the existence of sensitive eco- systems,
supporting a variety of unique plant species and mature hardwood forests on adjacent property. The
possibility that similar ecosystems and rare plant communities could exist on the Chemstone property
was raised, along with the concern about the impact of a larger and more intensive quarry operation, or
other permitted uses under EM District zoning, on the water quality and aquatic life in Cedar Creek.
Efforts to preserve or restore forested buffers along Watson Run, Middle Marsh Brook, and Cedar
Creek were encouraged to prevent any influx of water into these waterways which could choke off the
diverse aquatic life. Terrestrial and aquatic habitats within the proposed project's area were identified
and concern was raised that state - threatened and endangered wildlife species, such as the bald eagle,
wood turtles, and various bird species could be affected.
Rezoning #03 -06 — O -N Minerals (Chemstone)
April 14, 2008
Page 18
Speakers from the citizens group, Preserve Frederick, were in opposition to the rezoning and raised
many issues regarding the inadequacies of the application, non - conformance with the County's
Comprehensive Policy Plan, impacts to water, as well as quality of life, air quality, public health, traffic,
the environment, and negative economic impacts. Some of the specifics of the public's concerns
included:
The Comprehensive Plan states that measures aimed at increasing the appeal of areas to tourists and
businesses need to be developed and implemented; however, the sharp increase in industrial traffic and
pollutants from the mining operation will not create small -town ambiance, which is the key economic
ingredient to the success of Middletown's businesses and tourism. Negative visual impacts, traffic, and
noise will erode the Town's assets of Main Street, the National Park, the Battlefield, and its rural
character. Further, over 1,300 dump truck trips per day will in no way help to minimize congestion of
the main corridor to this quaint, one -light town. Nothing was more contradictory to the guidelines of
the Comprehensive Policy Plan than a heavy, dirty industrial corporation operating within a rural,
historic national park and battlefield community; it was a clearly incompatible land use. Local business
owners were concerned that the destruction of the landscape, the dust, and the increased truck traffic
with its noise and fumes, will have a very negative affect on out -of -town visitors and will jeopardize
their businesses and livelihoods. Roads in this area are not constructed for large amounts of heavy truck
traffic and over -sized vehicles.
Numerous health issues were raised; expansion of quarry mining operations will be detrimental to
public health and safety. Operations will be too close to residences, increased safety hazards were
named dealing with fly rock from blasting, increased truck traffic, and safety to children. It was noted
that truck traffic emissions will have severe health consequences for the community and statistics were
quoted indicating that diesel exhaust is one of the greatest public health risks of all air pollutants. It was
reported that diesel combustion releases fine particles and gases, called soot, which are typically smaller
than 2.5 microns; this fine particulate matter is an air - quality contaminant regulated under the Clean Air
Act. Diesel soot contains many toxins and can be inhaled into the deepest parts of the lungs where it is
able to enter the bloodstream; a considerable number of associated respiratory illnesses were named.
A police officer spoke about road traffic safety. He expressed concern about quarry trucks, some of
which are 75 -feet long and weighing up to 80,000 pounds, which can often be seen exceeding the
posted speed limit and barreling down back country roads with tight curves, unsafe shoulders, and hills.
It was noted that families travel these roads, along with school buses, the elderly and teenagers with
new licenses. It was noted that tripling the amount of heavy industrial traffic through the countryside
would be a recipe for disaster.
Comments from a retired, professional geologist noted that the extension of limestone mining west and
north of Middletown could bring detrimental health consequences to people living on farms and
residences in proximity to the operation. In addition to occasional fly rock, blasting will open existing
rock fractures or develop new fractures that could cause nearby wells to dry up and /or drain fields to
malfunction. Fracturing induced by blasting could release residual clays from sinkholes and voids,
thereby fouling water wells; operations of crushing, grinding, and loading brings the potential for large
accumulations of dust and hazardous metals.
Rezoning #03 -06 — O -N Minerals (Chemstone)
April 14, 2008
Page 19
Citizens in the health profession expressed concern for water -borne pollutants and toxic elements; tests
on local well systems from 1995 through 2006 revealed occasional high levels of toxic elements,
including nitrate, cadmium, iron, and lead. Percentages of the elements found were quoted and the
health problems associated with these levels were named. Other citizens in the health profession
expressed concern for air -borne pollutants and fine particulate matter generated by limestone mining
operations and extraction. Because of the westerly - prevailing winds, it was believed that residents of
Middletown and students at Lord Fairfax Community College and Middletown Elementary School
would be directly exposed to far greater emissions from the blasting, extraction, and refining of
minerals. Health problems such as asthma, chronic obstructive lung diseases, emphysema, and chronic
bronchitis were mentioned. It was noted that O -N Minerals was already the known leading contributor
for emissions.
Some residents stated that when they purchased their property years ago, they approached quarry
operators about their plans for this property and were told it would be left as a buffer area. Residents
did not believe view shed mitigation would shield their homes from quarry dust, dirt, and particle
matter. The applicant had been quoted as saying that 10 million gallons of water a day would be
pumped from the property and residents were concerned about their private wells and local springs.
Liability issues were raised and who would pay for potential damages. Devaluation of properties was
an issue. The fact that O -N Minerals had not offered any restrictions on other EM District uses was a
concern. A citizen spoke of a 125- year -old family cemetery located north of Chapel Road, near an
abandoned farmhouse.
Citizens asked why the County continued to allow residential development to occur all through this part
of the valley, if they knew the property could be mined in the future. It was noted that Middletown's
old, rich history and architecture are not conducive to industrial infrastructure changes. One citizen
commented that numerous quarry companies have owned this land over 50 years; he questioned why
they waited all this time to apply for a rezoning. Middletown was not the same place it was 52 years
ago and considerable changes have taken place since the 693 acres were sold to Chemstone. The Town
now has a national historic park; it has a thriving national heritage of historic importance, and a rapidly
growing number of residential developments.
The financial status of O -N Minerals was commented on by a few of the citizens. They quoted
operating figures about the company which indicated O -N was functioning under a considerable debt
load and had to sell assets. Also raised was the fact the applicant was a co- defendant in cases alleging
asbestos - induced illnesses and silica. Citizens questioned how this could affect the company's financial
future and their obligations to meet proffers or successfully resolve future cases. Citizens asked what
recourse would be available, if the company failed to perform promised proffers. Liability issues on
many levels were raised as a future problem.
The Frederick County Sanitation Authority's connection to the land use application was raised
numerous times and citizens expressed the need for all agreements to be thoroughly examined. Citizens
Rezoning #03 -06 — O -N Minerals (Chemstone)
April 14, 2008
Page 20
commented on all of the costs the FCSA had agreed to pay, including the costs for rezoning the land, for
relocating ball fields, for installing and maintaining monitoring wells, restitution for water loss from
nearby wells, etc., and to hold Chemstone harmless from all issues raised by regulators or private
citizens. It was noted that FCSA would then have a water storage pit with which to partially serve the
UDA and Chemstone would not have the expense of filling the pits and reclaiming land.
Many of the residents said they moved to Middletown to escape large commercial developments and
traffic problems, and residents feared these same negative impacts would result from this rezoning and
affect the quality of life they have become accustomed to. Finally, citizens called for the Commission
to vote on the application at the end of discussion and not to table the application.
Commission Discussion:
The Commission had a considerable amount of discussion and numerous issues were raised.
Commission members asked the staff to review the State's role in mediating disputes and dealing with
various off -site impacts. Staff responded that discussions with DMME had determined that while the
DMME regulates the operation of the mining company, along with permitting and safety issues, the
scope of their involvement beyond the property or permit is very limited. In fact, the DMME is
reluctant to become involved with any of the issues that may revolve around blasting or water issues.
Commission members asked if 0 -N Minerals had submitted a CPPA application by the June 1, 2006
deadline or if the land subject to the rezoning was in any way planned for something other than rural
areas land use, such as with a text amendment. Staff replied that no comprehensive plan amendment
had been submitted, nor was this area being considered for another planned land use.
Commission members asked staff about remediation requirements. Staff responded that there were
considerable requirements by the DMME; however, there were many opportunities to modify the
requirements and approach things in a different manner. Commission members assumed that if the
property changed hands after the land had been mined, as in the possibility that it would be turned over
to a quasi - public entity, such as the FCSA, then the regulations would change. It was noted that FCSA
was not in the business of land remediation.
Commission members stated that if the rezoning was tabled, they would want a clear understanding of
the agreement between the FCSA and O -N Minerals before it came back to the Commission again. Not
only did they want to have a clear understanding, but thought it was important for the community
because of statements that could be interpreted in different ways and could have significant liability, not
only on surrounding property owners, but on the FCSA.
Commissioner Thomas summarized the issues he believed were significant in the review of the
rezoning. Many of the other Commissioners agreed with those issues, as follows: The traffic impact
analysis submitted was woefully inadequate and needs to be redone. The use of numbers of vehicles for
trip generation in the traffic impact analysis is inappropriate when 60 -70% of the traffic will be 40 -ton
dump trucks and will not result in an accurate analysis. A route analysis needs to be done which
examines the geometries and conditions of the road, in particular, the impact of 800 -900 severely -
loaded 40 -ton trucks on the road itself. A strip map should be included so the community understands
the vehicle traffic pattern that will occur with heavily - loaded vehicles from the quarry, through
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Rezoning 403 -06 — O -N Minerals (Chemstone)
April 14, 2008
Page 21
Middletown, and onto their destination. The environmental impact analysis is lacking; there was
nothing within the environmental impact analysis that addressed air quality. A particulate matter study
is needed with a wind -rose analysis showing the distribution of the particulate matter, the levels of
particulate matter that will be experienced by the surrounding residents, and the particulate matter size
that will be distributed. In light of all the nearby farms and livestock, information is needed on how the
particulate matter may affect surrounding agricultural and orchard land uses; for example, the affect of
particulate matter on grazing cattle and the pollination of orchard fruit trees. In addition to outside dust,
dust inside homes also needs to be addressed. Particulate matter of this size will get inside new homes
as well as older homes and all homes within a couple miles will have a significant dust problem within
the home. Regarding the subject of determining liability for water wells and blasting damage, how will
the applicant monitor existing wells from a quality and quantity standpoint and how will the existing
homes be inventoried and evaluated. A plan should be developed with a process for damage assessment
and appeals that doesn't require surrounding homeowners to invest an extensive amount of money
hiring lawyers and suing. Due to the significant size of this project, a bonding process above the
minimum State standards is needed to protect the surrounding homeowners against potential future
damages and liabilities, if the company has financial difficulties and moves out of the area. No
information was provided by the applicant regarding meetings with surrounding property owners;
neighborhood meetings should take place to convey the applicant's plan, how the property owners will
be protected, and what the applicant's blasting plan will be. Since the biggest potential problems will
come from areas outside of the quarry site, and the State only regulates on -site, permitted areas,
something significantly more than the minimum State - regulated requirements is needed. For example,
one seismograph in a blasting area with this kind of topography is substantially inadequate; there should
be three -to -five for every blasting plan. The liability for surrounding homeowners for water wells and
blasting needs to be substantially expanded. The applicant needs to examine allowed uses in an EM
area and consider what is realistically going to be done there and the uses that are not going to be
needed should be taken out through a proffer to avoid confusion by adjoining property owners about
what can be done here. Another significant item is the life of the quarry operation; specifically, will it
be a five -year operation or a 50 -year operation, and what is the applicant's phase plan for development
of the quarry and the extent of that development. is it the applicant's intent to proceed down the Valley
with this operation and are there plans for remediation of areas left behind as the operation moves
along, or are the areas left open through the entire process. Has the applicant considered a mining
operation versus an open quarry? Although a mining operation would have less impact on the visual
area and produce less dust, it still has the same amount of impact on blasting and water wells.
In addition, issues raised by other Commissioners included a desire for some type of bonding process
established for well issues, so that the burden of proof did not fall on local residents. They wanted to
see increased buffer distances to keep the operation further away from residences. The subject of the
unsightly appearance of dirt piles that may exist for 25 to 50 years was also raised. In addition, they
wanted the applicant to revisit the issues raised by the HRAB, the Town of Middletown, and Public
Works.
Some Commission members doubted that the applicant could address the issues raised in 90 days or a
year in terms of the kind and amount of analysis that was needed in this case. The comment was made
that if the applicant did proceed with all of the studies, they were not sure whether the results would
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Rezoning 403 -06 — O -N Minerals (Chemstone)
April 14, 2008
Page 22
make a difference, because fundamentally, this was a land use issue. It was pointed out that the time for
expansion of this quarry and the industrial use of these particular properties has long passed; the
surrounding community is clearly residential at this point in time. It was noted that the Commission
had previously asked for additional information 60 days ago and nothing was produced. Commission
members believed the rezoning needed to be considered in the spirit of the Comprehensive Policy Plan.
Members commented that the public's presentation was far better than what was provided by the
applicant, in terms of the information provided and organization. Commissioners believed the concerns
raised by the public were valid and required mitigation, which could only be accomplished by denying
the rezoning; they were adamant that no amount of proffers could make this proposal acceptable for
them. Other comments included the observation that the application was not clear as to whether the
operation would be limited to an active core area or even how much quarrying the applicant planned to
do. It was suggested that a revised application and proffer could result in a minor amount of rezoned
land with protections; it was pointed out that the residents and historic areas have no protections today.
Commission members had concerns about sending the application forward to the Board of Supervisors
in its present state because it was so incomplete and lacking that the Board would have nothing to
review. Those Commission members were concerned about doing a disservice to both the Board and
the citizens without allowing the applicant to go back and improve the application with a phasing plan,
or offering a commitment to a smaller area, or providing protections for surrounding areas. Still other
Commissioners argued that they did not hear anything during the public hearing that made them think
something could be done with this proposal to make it compatible as a land use.
A motion to recommend denial of the rezoning application was made, seconded, and passed by a
majority vote, as follows:
YES (TO REC. DENIAL) Watt, Morris, Oates, Wilmot, Ours, Kriz, Kerr, Mohn
NO: Unger, Manuel, Light, Thomas
(Note: Commissioner Triplett was absent from the meeting.)
Note to Board of Supervisors:
A verbatim section of the Planning Commission's discussion has been included at the end of your
agenda for your information and to clearly translate the commission's comments which followed the
public hearing.