HomeMy WebLinkAbout03-06 Proffer Stmt{
AMENDMENT
Action:
PLANNING COMMISSION: June 7, 2006 - Recommended Denial
BOARD OF SUPERVISORS: May 28, 2008 ❑ APPROVED ❑ DENIED
AN ORDINANCE AMENDING
THE ZONING DISTRICT MAP
REZONING #03 -06 OF O -N MINERALS (CHEMSTONE)
WHEREAS, Rezoning 403 -06 of O -N Minerals (Chemstone), submitted by Patton Harris Rust &
Associates, to rezone 394.2 acres from RA (Rural Areas) District to EM (Extractive Manufacturing)
District with proffers dated June 13, 2005 and final revision May 27, 2008, was considered. The Middle
Marsh property is located east of Belle View Lane (Route 758), west of Elites Road (Route 625) and on
both sides of Chapel Road (Route 627). The Northern Reserve is bounded to the south by Cedar Creek and
Shenandoah County, and is west and adjacent to Meadow Mills Road (Route 624). The properties are in
the Back Creek Magisterial District, and are identified by Property Identification Numbers 83 -A -109 and
90 -A -23.
WHEREAS, the Planning Commission held a public hearing on this rezoning on April 5, 2006 with
final action taken on June 7, 2006: and
WHEREAS, the Board of Supervisors held a public hearing on this rezoning on April 23, 2008 with
final action taken on May 28, 2008: and
WHEREAS, the Frederick County Board of Supervisors finds the approval of this rezoning to be in
the best interest of the public health, safety, welfare, and in conformance with the Comprehensive
Policy Plan:
NOW, THEREFORE, BE IT ORDAINED by the Frederick County Board of Supervisors that
Chapter 165 of the Frederick County Code, Zoning, is amended to revise.the Zoning District Map to
change 394.2 acres from RA (Rural Areas) District to EM (Extractive Manufacturing) District, with
proffers, for a quarry, as described by the application and plat submitted, subject to the attached
conditions voluntarily proffered in writing by the applicant and the property owners.
PDRes. # I0 -08
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This ordinance shall be in effect on the date of adoption.
Passed this 28th day of May, 2008 by the following recorded vote:
Richard C. Shickle, Chairman A y e Gary A. Lofton Aye
Gary Dove
A y e
Bill M. Ewing
Nay
Gene E. Fisher
A y e
Charles S. DeHaven, Jr.
Nay
Philip A. Lemieux
Nay
A COPY ATTEST
John R. Rile` ; Jr.
Frede pk� County Administrator
PI) Res. tt 10 -08
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PROPOSED PROFFER STATEMENT
REZONING: RZ# 03 -06
Rural Areas (RA) to Extractive Manufacturing (EM)
PROPERTY: 394.2 Acres + / -;
Portions of Tax Map Parcels 83 -A -109 ( "parcel 109 ") and 90 -A -23
("parcel 23 ") (the "Properties ")
RECORD OWNER
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S)
O -N Minerals (Chemstone) Company
O -N Minerals (Chemstone) Company ( "Applicant ")
Chemstone - Middletown
June 13, 2005
January 16, 2006
March 18, 2008
May 20, 2008
February 8, 2006
April 18, 2008
May 22, 2008
August 28, 2006
May 14, 2008
May 27, 2008
The undersigned Applicant hereby proffers that the use and development of the portions
of the above - referenced parcels, which are requested to be rezoned, the portions requested to be
rezoned being shown on the attached and incorporated plat identified as "Exhibit 1," shall be in
strict conformance with the following conditions, which shall supersede all other proffers on the
Properties that may have been made prior hereto. In the event that the above - referenced EM
conditional rezoning is not granted as applied for by the Applicant, these proffers shall be
deemed withdrawn and shall be null and void. Further, these proffers are contingent upon final
rezoning of the Properties with "final rezoning" defined as that rezoning which is in effect on the
day following the last day upon which the Frederick County Board of Supervisors' (the "Board ")
decision granting the rezoning may be contested in the appropriate court. If the Board's decision
is contested, and the Applicant elects not to submit development plans until such contest is
resolved, the term rezoning shall include the day following entry of a final court order affirming
the decision of the Board which has not been appealed, or, if appealed, the day following which
the decision has been affirmed on appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and /or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
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Development Plan," shall refer to the plan entitled "Generalized Development Plan, O -N
Minerals (Chemstone)" dated May, 2008 (the "GDP "). 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 twelve viewshed plats titled "Viewshed IA, Viewshed 1B, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 413, Viewshed 5A, Viewshed 513, Viewshed 6, Viewshed 7, Viewshed
8 and Viewshed 9 ". The aforementioned documents are and shall be incorporated by reference
herein as "Exhibit 2." The Applicant proffers that its development of the Properties will be in
substantial conformity with the GDP.
1. Land Use
1.1 The Properties shall be developed with extractive manufacturing land uses
pursuant to the mining permit approved by the Division of Mineral Mining
( "DMM ") of the Virginia Department of Mines, Minerals and Energy
( "VDMME "), and shall therefore conform to the Mineral Mining Law and
Reclamation Regulations for Mineral Mining of the Commonwealth of Virginia.
1.2 The Applicant hereby proffers not to engage in the following uses on the
Properties:
Oil and natural gas extraction;
Asphalt and concrete mixing plants;
Brick, block and precast concrete products;
Cement and lime kilns; and
Coal and natural gas -fired power plants or facilities which sell power to
the local utility or power grid*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
2.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757). Access by vehicles needed for
periodic maintenance of the Properties shall not be limited.
2.2 Earthen berms shall be installed around the active quarry pits in the location
shown on the GDP. The berms shall have a maximum height of 30 feet and a
minimum height of 10 feet. The berms (Berm A and Benn B) depicted on the
Phase I Plan of the GDP shall be installed within 10 years of the approval of the
rezoning. The berms (Berm C and Berm D) depicted on the Phase 11 Plan of the
GDP shall be installed no later than 10 years prior to the commencement of
mining north of Chapel Road. The berms shall be landscaped to minimize impacts
to the viewshed of the surrounding community. Such landscaping shall consist of
a mix of deciduous and coniferous plantings placed in a random manner to be
consistent with existing vegetation patterns. The description of the plants to be
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installed on the berms are more specifically described in the attached and
incorporated "Exhibit 3." The landscaping shall be subject to reasonable approval
by the Zoning Administrator of Frederick County and upon consultation with the
State Forester. With respect to Bern A, located on Tax Parcel 90 -A -2, not owned
by the Applicant, the berm will be constructed by the Applicant as the tenant
under a 100 -year lease of Parcel 90 -A -2, with authority under the lease to
construct Berm A.
2.3 The existing overburden stock pile on the southeast comer of the current
Middletown plant site shall be reduced in height to the greater of 30 feet or the
height of the adjacent tree line (lying to the east) within 5 years of the approval of
the rezoning.
3. Historic Resources
3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP and on
Exhibit 1, within which archaeological resources and other historic activities have
been identified. Further, the Applicant shall place restrictions on the reserve land
for how the reserve will be used by the Properties' owner and future owners. A
copy of said restrictions are attached and incorporated as "Exhibit 4." Said
reserve land shall be dedicated to the Cedar Creek Battlefield Foundation, Inc.
within 60 days of final rezoning. [NOTE: the aforementioned 8 acre historic
reserve property is not to be included in the property to be rezoned.]
3.2 The Applicant shall complete a Phase I Archaeological Survey of parcels 23 and
109. The Phase I Archaeological Survey of parcel 23 shall be completed within
12 months of the approval of the rezoning. For the remaining tracts of land, the
Applicant shall complete a Phase I Archaeological Survey of a particular tract of
land before any mining activities commence on that property. The Applicant may
commence mining activities on a particular portion of the Properties before the
completion of the Phase I survey for all of the Properties, but under any and all
circumstances, no mining operations shall commence on any portion of the
Properties until after the Phase I Archeological Survey has been completed on
said portion of the Properties. Said survey shall locate, identify, and
comprehensively record all historic sites, buildings, structures, and objects on the
parcels. Such survey shall be conducted in accordance with the guidelines for a
Phase 1 Survey as defined in the Virginia Department of Historic Resources
"GUIDELINES FOR CONDUCTING CULTURAL RESOURCE SURVEY IN
VIRGINIA - Chapter 7: Guidelines for Archaeological Investigations in
Virginia," 1999 (Rev. Jan. 2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the berming area. That cemetery is currently undergoing a
historical restoration. After the historical restoration, the Applicant will follow
the recommendations of the Applicant's historian.
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The second cemetery is located in the area where berming is stated to be installed.
The Applicant proffers the berming will be located in such a way as to not
encroach on the cemetery. This cemetery is also currently undergoing a historical
restoration. After the historical restoration, the Applicant will follow the
recommendations of the Applicant's historian. In addition, the cemetery is
accessed through a right -of -way which is of record providing access to the
cemetery from Route 625. The Applicant proffers to improve said right -of -way
so that it can be used for access by the descendants of those in the cemetery
within 12 months of completion of the cemetery restoration. Once said right -of-
way has been improved, the Applicant will provide continued maintenance and
have use of same.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority
( "FCSA ") rights to the water resources available on the Properties in accordance
with the existing agreements between the Applicant and FCSA.
5. Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 109 by the GDP,
and shall be located within 500 feet of the Properties' boundaries. A minimum of
one monitoring- well shall be installed within 500 feet of the parcel 109
Properties' boundary. The exact location of the monitoring wells is depicted on
the Overall Plan of the GDP.
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and /or structures which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, muck piles, material handling, screens, crushers, conveyors,
feeders, hoppers, stockpiles, load -outs, and traffic areas shall be controlled by wet
suppression or equivalent, and controlled by and consistent with the terms of the
Department of Environmental Quality ( "VDEQ ") general air permit. The
Applicant shall remediate any adverse impacts to surrounding properties caused
by dust associated with the mining operations on the Properties.
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7. Blasting Control
7.1 All blasting associated with mining operations on the Properties shall be limited
by the mining permit approved by the DMM of the VDMME. Peak Particle
Velocities (PPV) associated with blasting on the Properties shall not exceed the
levels stipulated by said permit. In addition, the Applicant agrees to have an
approved blasting plan in place at all times. An example of the current blasting
plan is attached. Further, in addition, the Applicant agrees that there will be no
block holing or adobe blasting conducted on the Properties. Any damage to
surrounding properties caused by blasting on the Properties shall be remediated at
the Applicant's expense.
8. Traffic
8.1 The Applicant's current number of truck loads leaving the site on a daily basis is
approximately 63, and the Applicant has had higher numbers of recorded trek
loads leaving the plant to a total of 114 truck loads per day. The Applicant, in its
proffer, is agreeing to restrict truck traffic to the Properties to 86 truck loads per
day averaged over the prior 30 days, but intends to also have an ability to increase
the number of truck loads in the event of an emergency or circumstances, which
could be caused by issues driven by the Applicant's customers, suppliers, and /or
carriers. Examples of such shall include, but are not limited to, an interruption of
rail service to the site and /or any sites that are serviced by rail from the
Applicant's Properties and /or any other interruption of the ability to deliver
materials at the Applicant's site or any other sites which are owned, controlled, or
by business relationship connected with the Applicant's site. To that end, and in
any circumstance, the Applicant agrees to restrict truck traffic to the Properties to
a maximum of 200 truck loads per day averaged over the prior 30 days through
the scale house hauling mined materials on and /or off the proposed quarry site
from the existing quarry entrance. The maximum number of truck loads will be
regulated by the Applicant and its successors and /or assigns. A record of the
actual number of truck loads per day shall be kept current (and maintained for one
year) by the Applicant at its scale house office. Said record shall be made
available in a form which confirms the number of trips and the form will be
produced to Frederick County officials upon demand with reasonable notice. The
Applicant proffers there will be no truck loads from the Properties on Sundays
and the hours of truck loading on Saturdays will be no later than 7:00 p.m. The
Applicant further proffers it will instruct all truckers as to the proper route of
travel from the Properties to Route 11, which shall exclude both Belle Grove and
Chapel Roads.
9. Pre -Blast Surveys
9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within
1,500 feet of the boundaries of parcel 23 and parcel 109. The aforementioned
surveys will be conducted by an independent engineering firm, which will
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investigate and document the pre -blast conditions of the participants' residences
and /or outbuildings. The Applicant and its successors and assigns will contact all
citizens who have property within 1,500 feet of the boundaries of parcel 23 and
parcel 109, and monitor the tax roles for Frederick County on an annual basis in
order to contact any citizens who have recently purchased the aforementioned
property. This contact will be made by the Applicant and its successor and
assigns to invite citizens who have property within 1,500 feet of the boundaries of
parcel 23 and parcel 109 to participate in the pre -blast surveys. Contact will be
made by registered return- receipt letters, mailed annually from the time of the
rezoning. All citizens who have property within 1,500 feet of the boundaries of
parcel 23 and parcel 109 can, and are encouraged to, participate in the survey by
contacting the Applicant and scheduling a mutually agreeable time for the
independent engineering firm to visit the party's residence to document and
survey the pre -blast condition of the party's residences /outbuildings following the
procedures set forth in the attached and incorporated "Exhibit 5." If the property
owner agrees to participate, the Applicant's and /or its engineering firm shall visit
and inspect the party's residences /outbuildings to monitor the condition of the
same. A record of those pre -blast conditions will be kept by the independent
engineering firm with copies retained by the Applicant and the participating
property owner. In the event of a change in condition, which is alleged by the
participating property owner as a result of mining operations, the engineering firm
will then conduct a follow -up visit and investigation and use the pre -blast
information as a control and basis for subsequent analysis. Said analysis shall be
used to determine the cause of any negative change in condition. If it is
determined there is a change in condition in the residences /outbuildings, which
has been caused by the Applicant's mining activities on the Properties, then the
Applicant agrees to remediate and /or repair said negative change in condition to
restore it to its status prior to blasting operations. In addition, the Applicant agrees
to establish seismic monitoring of the proposed quarry site to monitor all blasting
activities and keep records of said seismic monitoring as required by the
VDMME.
9.2 The Applicant will offer voluntary well monitoring surveys of properties that are
within 1,500 feet of the boundaries of parcel 23 and parcel 109. The
aforementioned surveys will be conducted by an independent well drilling firm or
hydrogeologist, which will investigate and document the pre- mining conditions of
the participants' wells. The Applicant and its successors and assigns will contact
all citizens who have property within 1,500 feet of the boundaries of parcel 23
and parcel 109, and monitor the tax roles for Frederick County on an annual basis
in order to contact any citizens who have recently purchased the aforementioned
property. This contact will be made by Applicant and its successor and assigns to
invite citizens who have property within 1,500 feet of the boundaries of parcel 23
and parcel 109 to participate in the well monitoring surveys. Contact will be made
by sending annually registered return - receipt letters. All citizens who have
property located within 1,500 feet of the boundaries of parcel 23 and parcel 109
can and are encouraged to participate in the survey by scheduling a mutually
agreeable time for the independent well drilling firm to visit the party's residence
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to document and survey the pre -blast condition of the party's well following the
procedures set forth in the attached and incorporated "Exhibit 6A and 6B." A
record of these pre- mining conditions will be kept by the independent well
drilling firm, with copies retained by the Applicant and the participating property
owner. In the event a change of condition is alleged by the property owner as a
result of mining operations, the Applicant will provide an interim replacement
water supply as necessary to supply the property owner with water. The well
drilling firm will then conduct a follow -up visit and investigation and use pre -
blast information as a control and basis for subsequent analysis. If it is
determined that the status of the neighboring property owner's well has
deteriorated from the condition it was in at the time of the pre -blast survey, then
the Applicant agrees to restore the well to its condition existing at the time of the
pre -blast survey and /or provide the adjoining property owner a replacement well
of the same condition (or better) of that which existed at that time of the pre -blast
survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for the period of time covering the active
mining operations on the Properties and to maintain in effect for a period of one
year from the date of cessation of said mining operations, and to cover the costs of
any remediation and /or repair, which is required pursuant to the terms of sections
9.1 and 9.2 above. Said policy or surety shall be in the amount of no less than
One Million and 00 /100 Dollars ($1,000,000.00) per occurrence. Frederick
County may review from time to time the amount of the policy or surety to
evaluate whether the minimum amount of $1,000,000.00 is sufficient to protect
the cost of any remediation and/or repair, which is required pursuant to the terms
of sections 9.1 and 9.2. In the event Frederick County believes that the amount of
the policy or surety needs to be increased for the reasons set forth above, then the
Applicant and Frederick County shall reach an agreement as to the proper amount
of policy or surety. The approval of said increase shall not be unreasonably
withheld, conditioned or denied by either party. The Applicant shall annually
provide to the County a Certificate of Insurance from the insurance carrier.
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the VDMME Engineering's decibel
guidelines. The Applicant will make all reasonable efforts to locate mining
machinery in the quarry pit or behind berms.
12. Lighting
12.1 There shall be no affixed lighting structures above - ground on the berms other than
as may be required for or provided by regulations that affect the plant operations,
including but not limited to, Mine Safety Health Administration ( "MSHA "),
VDMME, and any other -- governmental or regulatory body that oversees mining
operations. Lighting used for devices or machines that convey materials or for
pit crushing facilities and other mining activities is permitted. Conveying and pit
crushing facilities shall also be interpreted as including such other devices or
activities that perform similar or related functions that may come into use and /or
existence at some time in the future while the extractive mining use is still in
effect on the Properties. In addition to the above, all lighting will be installed in
such a manner that there will be no spillover beyond any property line of the
Applicant onto adjacent properties not owned by the Applicant.
13. Air Permit
13.1 The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the VDEQ standards and also see that the existing general air
permit covers all activities conducted on the rezoned Properties.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
14.2 The Applicant agrees that all areas currently in trees on property owned by the
Applicant, which is outside of the rezoned Properties and identified on the GDP
as "Middletown Woods ", shall be maintained using best management practices.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek.
15. Phasing
15.1 The Applicant agrees that mining activities on the Properties shall occur with the
following phasing and as set forth on the Phasing Plans of the GDP:
After the rezoning is approved, the Applicant will start creating berms on the
newly rezoned Properties and the Applicant shall start quarrying in the area
identified as parcel 23. Mining in parcel 23 shall occur from the time period
commencing with the approval of the rezoning for a period of time which is
estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
M.
Its:
COMMONWEALTH OF VIRGINIA, AT LARGE
FREDERICK COUNTY, To -wit:
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The foregoing instrument was acknowledged before me this � day of
2008, by ShY7,50 1
M K44 R PUBLI -
NOTARY
My commission expires : .4 auAi it
Registration number: REG # 7155256: %
TH
O -N MINERALS (CHEMSTONE) COMPANY