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HomeMy WebLinkAbout03-06 Comments (4)1 . HAt , MONAHAN, ENGLE, MAHAN & MITCHELL Apfl Y 1 U& HAND - DELIVERED Michael T. Ruddy, 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 Mike: I have received a copy of a revised Proposed Proffer Statement delivered to the County on April 18, 2008, in the above matter, and this will update my proffer review letter dated April 4, 2008 (as revised by my proffer review letter dated April 11, 2008 as to Proffer 3.1). Attached to this letter is a copy of a letter dated April 18, 2008 to me from Applicant's counsel, Thomas Lawson ( "April 18 Lawson Letter "), which letter offers comments on the Applicant's revisions, or lack thereof, to Proffers 1.2, 3.3, 5. 1, and 5.2. Before addressing the specific numbered paragraphs of my April 4 proffer review letter, I would offer the following general comments: A. In response to comments in my April 4 proffer review letter that the two separate parcels which are the subject of the rezoning needed to be identified in the Proffer Statement by parcel number to avoid confusion, the Applicant has revised the Proffer Statement to refer to the respective parcels by parcel number. However, A PARTNER5HIP OF PROFE5510NA1- CORPORATIONS ATTORNEYS AT LAW WILBUR C. HALL (1892 - 1972) THOMAS V. MONAHAN (1924 -1999) S 307 EA5T MARKET STREET 9 EAST BOSCAWEN STREET SAMUEL D. ENGLE LEE58URG, VIRGINIA WINCHESTER, VIRGINIA O. LELAND MAHAN TELEPHONE 703 -777 -1050 TELEPHONE 540- 652 -3200 ROBERT T. MITCHELL, JR. FAX 540662 -4304 JAMES A. KLENKAR F-MAIL laawyers@hallmonahan::om STEVEN F. JACKSON April 21, 2008 HAND - DELIVERED Michael T. Ruddy, 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 Mike: I have received a copy of a revised Proposed Proffer Statement delivered to the County on April 18, 2008, in the above matter, and this will update my proffer review letter dated April 4, 2008 (as revised by my proffer review letter dated April 11, 2008 as to Proffer 3.1). Attached to this letter is a copy of a letter dated April 18, 2008 to me from Applicant's counsel, Thomas Lawson ( "April 18 Lawson Letter "), which letter offers comments on the Applicant's revisions, or lack thereof, to Proffers 1.2, 3.3, 5. 1, and 5.2. Before addressing the specific numbered paragraphs of my April 4 proffer review letter, I would offer the following general comments: A. In response to comments in my April 4 proffer review letter that the two separate parcels which are the subject of the rezoning needed to be identified in the Proffer Statement by parcel number to avoid confusion, the Applicant has revised the Proffer Statement to refer to the respective parcels by parcel number. However, 0 0 HA MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy April 21, 2008 Page 2 the identification of the parcels by the abbreviated parcel number designation needs to be identified at the beginning. Accordingly, 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. B. The Applicant has not shown the most recent revision date in the heading of the Proposed Proffer Statement. A revision date of April 18, 2008 should be inserted in the "REVISION DATES" portion of the heading. C. In response to a comment in my April 4 proffer review letter, the Applicant has, in the last two sentences of the second paragraph of the Proposed Proffer Statement, made reference to the Generalized Development Plan (GDP). However, reference to the GDP needs to be more complete and specific, as the plats and plans submitted as the GDP would become a part of an approved proffer statement. In this regard, I offer the following comments: (1) 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. (2) The next to the last sentence 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 aplan 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 viewshed plats titled Viewshed IA, Viewshed 113, Viewshed 2, Viewshed 3, Viewshed 4A, Viewshed 413, Viewshed 5A, Viewshed 5B, Viewshed 6, Viewshed 7 and Viewshed 8." 0 C � J HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy April 21, 2008 Page 3 (3) 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." The following comments are referenced to the paragraph numbers in my April 4 proffer review letter: 1. This comment is directed to the Board for its information. 2. This comment has been addressed. However, see comment A, above. 3. The Applicant has made no change in the Proffer Statement in response to this comment. 4. (Proffer 1.2) I do not find Proffer 1.2 to be a problem, assuming that the County wants the Applicant to proffer out "natural gas -fired power plants or facilities which sell power to the local utility or power grid." 5. (Proffer 2.2) The comment in my April 4 proffer review letter has been addressed by the revision to this proffer, subject to staff confirming that from the GDP it can determine the width of the distance buffers. 6. (Proffer 2.3) To some extent, the Applicant has responded to part of my comments on Proffer 2.3 by making reference to some of the plans in the GDP. However, 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 0 0 HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy April 21, 2008 Page 4 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 my opinion that this proffer needs to be amended to address the foregoing issues. Further, the second sentence of Proffer 2.3, which states "Such landscaping shall consist of a mix of deciduous and coniferous plantings placed in a random manner in order to be consistent with existing vegetation patterns ", is not specific as to the landscaping to be installed, and the comment in my April 4 proffer review letter that the proffer state that the specific landscaping shall be subject to approval by the County at the time of site plan submittal still stands. 7. (Proffer 3.1) The Applicant has made no change in this proffer in response to comments contained in my April 4 proffer review letter, as revised by my April I 1 letter recommending that this proffer provide for the dedication of the 8 acre site specifically to Belle Grove, Inc. The Applicant apparently is unwilling to do this. All of my comments on this proffer still apply. In addition, if the 8 acres is to be dedicated for historic preservation, I question why it is included in the area to be rezoned EM. 8. (Proffer 3.2) The Applicant has made no revisions in Proffer 3.2 to the address the comments in my April 4 proffer review letter. 9. (Proffer 3.3) The Applicant, in response to the comment in my April 4 proffer review letter that the proffer should include a provision 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. The comments in my April 4 proffer review letter regarding the right of way and the access to the cemeteries for visitors still apply. 0 E HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy April 21, 2008 Page 5 10. (Proffer 5.1) I still find Proffer 5.1 to unclear. It would appear from the attached April 18 Lawson Letter that the three monitoring wells will be installed only with respect to mining operations on Parcel 109, and that there will be no monitoring wells installed with respect to mining operations of Parcel 23. The proffer should be clarified to specifically state on which parcel the monitoring wells shall be placed. 11. (Proffer 5.2) The Applicant's revision to Proffer 9.2 has addressed one concern of this proffer (see attached April 18 Lawson Letter). However, by having the phrase "Subject to and consistent with the provisions of paragraph 9.2" at the beginning of the first sentence, it still 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 still my recommendation that that phrase be deleted from the beginning of Proffer 5.2. 12. (Proffer 6.1) The Applicant has made no changes in this proffer in response to the comments in my April 4 proffer review letter. 13. (Proffer 8.1) My comments on this proffer are directed to staff and the Board. 14. (Proffer 9.3) The Applicant has made the revision suggested by the first sentence of my comments on this proffer. The Applicant has made no changes in the insurance provisions to address an escalator. 15. (Proffer 12. 1) The Applicant addressed my concern by its revision of the first sentence of the proffer. However, the Applicant has added the second sentence, which states "Lighting used for devices or machines that convey materials or for pit crushing facilities and other mining activities is permitted." It is not clear whether this is saying that the Applicant can put lighting structures above - ground on the berms, despite the provisions of the first sentence, or whether this is talking about lighting that is actually on the devices or machines. This should be clarified. HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy April 21, 2008 Page 6 16. (Proffer 14.1) My comment on this proffer is directed to staff. 17. (Proffer 14.2) 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, 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.) 18. (Proffer 14.3) My comment on this proffer is directed to staff. Applicant has removed the reference to an "attached and incorporated plat ". 19. (Proffer 15) This proffer still 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. If there are any questions concerning the foregoing updated comments, please contact me. yours, Robert T. Mitchell! Jr. RTM /ks CC: Thomas Moore Lawson, Esquire, via fax 0 LAWSON AND SILEK, P.L.C. 120 EXETER DRIVE, Sul'rE 200 POST OFFICE BOX 2740 WINCHESTER, VA 22604 TELEPHONE: (540) 665 -0050 FACSIMILE: (540) 7224051 April 18, 2008 d 0 Robert T. Mitchell, Esquire Hall, Monahan, Engle, Mahan & Mitchell P.O. Box 848 Winchester, VA 22604 0 THOMAS MOORE LAWSON. TLAWSONnLS'PLC.COM Re: O -N Minerals (Chemstone) Company Rezoning Our File No. 462.006 �-. :.61 It was nice meeting with you yesterday to discuss to the Chemstone proffers: Enclosed please find a red .line proffer statement which incorporates the changes we discussed in our meeting. As agreed I have noted the changes to the proffers in a red -line form. I need to point out a couple of changes which I believe capture the matters we discussed but may not necessarily have the same language that you and I discussed in our meetings. With regard to paragraph 1.2, I did not put in the public utility language used in the code which is a by -right use in the EM zoning. The reason for this is that we have an agreement with the Sanitation Authority, which is of course a public utility. As I told you previously in one of our public meetings, a member of the audience interpreted the reference to public utility to include power plants, and we have agreed to proffer out that use regardless of whether there is an interpretation that use is allowed or not. In paragraph 33, we revised that to put in the language you and I discussed confirming that after the cemeteries have been restored the property owner will follow the recommendations of the Applicant's historian. If you care to see that information we did provide the county with approximately 35 copies of the ECS historical report. In paragraph 5.1, we deleted the reference that you and I discussed about installing a monitoring well south of the southernmost property. The reason for this is that our hydrologist confirms that all water flows in a southerly direction as.a result there will be no need to monitor the water in that area. The three monitoring wells referenced in the proffers are ° intended to surround the northern properties. In paragraph 5.2, I left the language "subject to and consistent with the provisions of 9.2" but I did make revisions to 9.2 to refer to pre - mining conditions as opposed to pre -blast conditions. I believe your concern with the old language was that we were limiting the well guarantees to blast related damages. FRONT ROYAL ADDRESS POST OFFICE B.%602, FROM ROYAL, VIRGINIA 22630, TELEPHONE: (540) 635 -9415, FACSIMILE: (540) 635 -9421, E -MAIL: SILE"gLYNRCONNEC LCCOM FAIRFAX ADDRESS: 10805 MAIN STREET, SUITE 200, FAIREAX, VIRGINIA 22030, TELEPHONE: (703))52- 2615, FACSIMILE: (703) 35241%, E- MAIL: TROMAEO.LAWSONO•.YERIMN.NET Robert T. Mitchell, Esq* April 18, 2008 Page 2 After you have reviewed the enclosed, should you have any questions or comments please do not hesitate to contact me. TML:jk cc: O -N Minerals (Chemstone) Company 18 13 Avr•19. 2008 11 54AM • No -1544 P I • HALL, MONAHAN, ENGLE, MAHAN & MITCHELL A PARTNERSHIP OF PROFESSIONAL CORPORATION9 ATTORNEYS AT LAW WILBUR C. HALL (1692 -1972) 7 & 307 EAST MARKET STREET 9 EAST HOSCAWEN STREET THOMAS V. MONAHAN (1924 -1999) LEESBURG. VIRGINIA WINCH E.S'I'ER, VIRGINIA SAMUEL 1). ENGLE 'TELEPHONE: 703- 777 -1050 TELFPHONE: 540- 662 -3200 O. LELANB MAHAN PAX: 703 - 771 -4113 FAX: 540-662 4304 ROBERT T. MITCHELL, JR. E -MAIL: IawyCr8GMallmonahan.CQM JAMES A. ICLENKAR STEVEN F. JACKSON PLEASE REPLY TO P.O. BOX 848 WINCHES - [ 6R, VIRGINIA 2260-0848 FAX TRANSMITTAL SHEET DATE: 491M _ PERSONAL AND CONFIDENTIAL TRANSMIT TO: Name: Location: Fax No.: 66� 6 345 FROM: Name: Location: Winchester, Virginia Fax No.: MESSAGE: (540) 662 -4304 Sb oc� ty`TF o r ('eG�eLL JfZ 'A L6a ) 5DO ` ��a c� �7w t w fit a u a� new UP Jsd Y`e. U�-seJ :Si kf k k Ira r�.��sLets �r :3118 10 ?r' 10 < J'AO AI I L 111.(1 i)noo�A o. rw\ r�n��r�.LOd r?7.vf e j &lTzA TOTAL NUMBER OF PAGES (INCLUDING THIS PAGE): I s_ APt -19. 2008 11:54AM • No•1544 p. 2 LAWSON AND SI LEK� P.L.C. 120 EXETER. DRIVE. SUM 200 POST OFFICE BOX 2740 W INCRESTI:R. VA 22604 TSLEVRONL: (540) 665-0050 FACSPU E: (540) 722-4051 TROr4A5 MOORE LAWSON AWSO PLC .0 April 18, 2008 Robert T. Mitchell, Esquire Hall, Monahan, Engle, Mahan & Mitchell P.O. Box 848 Winchester, VA 22604 Re: 0 -N Minerals (Chemstone) Company Rezoning Our Pile No. 462.006 Dear Bob: It was nice meeting with you yesterday to discuss to the Chemstone proffers. .Enclosed please find a red line proffer statement which incorporates the changes discussed in our we meeting. As agreed 1 have noted the changes to the proffers in a red -line form. I need to point out a coupe of changes which I believe capture the matters we discussed but may not necessarily have the same language that you and I discussed in our meetings. used in the code With regard to paragraph 1.2, I did not put in the public utility language with which is a by -right use in the EM zoning. The reason for this is that we have an eenttne of the Sanitation Authority, which is of course a public utility. As I told you p r Y our public meetings, a member of the audience interpreted the reference to public utility to include power plants, and we have agreed to proffer out that use regardless of whether there is an interpretation that use is allowed or not. In paragraph 3.3, we revised that to put in the language you and I discussed confining that after the cemeteries have been restored the property owner will follow the recommendations of the Applicant's historian. If you care to see that information we did provide the county with approximately 35 copies of the ECS historical report. In paragraph 5.1, we deleted the reference that you and I discussed about installing a monitoring well south of the southernmost property. The reason for this is that our hydrologist confirms that all water flows in a southerly direction as a result there will be no need to monitor the water in that area. The three monitoring wells referenced in the proffers t an and ended to surround the northern properties. In paragraph 5._, I left the language with the provisions of 9.2" but I did make revisions to 9.2 to refer to pre - minim t we op to pre -blast conditions. I believe your concern with the old Ian guag limiting the well guarantees to blast related damages. PvV,R Rb¢A�OYtI9¢: Pos+' OmcO Rnx 602, PP „M Rm^4T2¢0'rvi^ 326Jn, T¢L¢tpokk: (360) 633A615, PnrsiOm.0 (1101633A6A, $.Wl¢, SI¢¢O�i,dH%C(IwdCfCVM F,uk[u AVrv�¢:10¢OCn1.ur 3iRT1'n'. SUrtT:oO,PUVniC3T¢amu SS070,T¢�RVrvt(7071 L32 - 2615, P ^r_cawl.: fJ03)332d190, Y.• 2, 1A14= T9VMw.�•U'?^'VH1!v6w ?r+Ne< APr•19. 2008 11:55W • No.1544 P. 3 • Robert T. Mitchell, Esquire April 18, 2008 Page 2 After you have reviewed the enclosed, should you have any questions or comments please do not hesitate to contact me. TML:jk co: O -N Minerals (Chemstone) Company Apr•19 2009 11 55AM REZONING PROPERTY: RECORD OWNER: APPLICANT: PROJECT NAME: ORIGINAL DATE OF PROFFERS: REVISION DATE(S): • No•15d4 P. • PROPOSED PROFFER STATEMENT RZ# 03 -06 Rural Areas (RA) to Extractive Manufacturing (EM) 639.13 Acres + / -; Tax Map Parcels 83 -A -109 and 90 -A -23 (the "Properties ") 0 -N Minerals (Chemstone) Company O -N Minerals (Chemstone) Company Chemstone - Middletown June 13, 2005 January 16, 2006 February 8, 2006 August 28, 2006 March 18, 2008 The undersigned hereby proffers that the use and development of the subject properties ( "Properties "), as described above, 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 ( "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 wbicb 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 Development Plan," shall refer to the plan entitled "Generalized Development Plan, O -N Minerals (Chemstone)" dated March 18, 2008 (the "GDP "). The Applicant attaches and incomorates drawings identified its Exhibits . as representations of its Generalized APf•19. 2008 11 55AM • No•1544 P - 5 • Development Plan The Applicant subnuts its operations mid activities will be in general conformance witlm the Generalized Development Plan. 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, 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 --rid *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 Distance buffers shall be provided along the perimeter of the Properties in addition to those required by the Zoning Ordinance- The depth of said buffers shall be determined at the time of site plan submission, and will vary based upon the topography of the site boundary. These buffers shall be in Qeneral conformity with the Generalized Development Plan. 2.3 Earthen berms installed around the Properties' active quarry pits 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 in order to be consistent with existing vegetation patterns. Said berms shall be limited to a maximum height of 30 feet and be of a minimum height of 10 feet Said berms shall be installed in the following order. The bcrnm depicted on the Phase I plat shall be installed within 10 years of the approval of the rezoning. The berm de icted on the Phase Il plat shall be installed no later than 10 years prior to the commencement of mining north of Chapel Road. _ 3. Historic Resources APr•19. 2008 11:55AM • No,1544 °- 6 3.1 The Applicant shall create an 8 acre historic reserve as shown on the GDP, within which archeological 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. Said reserve land shall be dedicated to a recognized historical association and/or group within one year of final rezoning. 3.2 The Applicant shall complete a Phase 1 Archaeological Survey of the Propetties N n d Middl *-!aF,4 n.^ as depicted on the GDP within one year of final rezoning or prior to any land disturbance of the portion of parcel 83 -A -109 and parcel 90 -A -23. 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 TN VIRGINIA - Chapter 7: Guidelines for Archaeological Investigations in Virginia," 1999 (Rev. Tan. 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. Afler the historical restoration, the Applicant brill fol the recommendations of the Apnlic:ant's historian. The second cemetery is located in the area where berming is slated 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 open said right -of -way so that it can be used for access by the relatives of those in the cemetery. It is anticipated that once said right -of -way has been opened, the Applicant . ill 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 APr•19. 2008 11 55AM • No•15;4 P - 1 disturbance of the portion of the Properties identified as parcel 83 -A -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 number 109 Properties' boundary. 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 bome 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, shot 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 general air permit The Applicant shall remediate any adverse impacts to surrounding properties caused by dust associated with the mining operations on the Properties. 7. Blasting Control 7.1 All blasting associated with mining operations on the Properties shall be limited by the mining permit approved by the Division of Mineral Mining (DM" of the Virginia Department of Mines, Minerals and Energy. Peak Particle Velocities (PPV) associated with blasting on the Properties shall not exceed the levels stipulated by said permit. In addition, 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, 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 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 trips will be regulated by the Applicant and its successors and/or assigns. A record of the actual number of truck trips 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 At_r•11. 2008 11 55AM No•1544 P. 8 0 • which confirms the number of trips and the form will be produced to Frederick County officials upon demand with reasonable notice. 9. Pre-Blast Surveys 9.1 The Applicant will offer voluntary pre -blast surveys of properties that are within 1,500 feet of the Properties' boundaries. The aforementioned surveys will be conducted by an independent engineering firth, which will investigate and document the pre -blast conditions of the participants' residences and/or outbuildings. All citizens who have property adjacent to the Properties 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 parry's residence to document and survey the pre -blast condition of the patty's residences/outbuildings. The Applicant's and/or its engineering firm shall further have the right to 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 adjoining 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 Virginia Division of Mines, Minerals and Energy. 9.2 The Applicant will offer voluntary well monitoring surveys of properties that are within 1,500 feet of the Properties' boundaries. The aforementioned surveys will be conducted by an independent well drilling firm, which will investigate and document the pre -bi tminia conditions of the participants' wells. All citizens who have property located within 1,500 feet of the Properties' boundaries can and are encouraged to participate in the survey by contacting the Applicant and scheduling a mutually agreeable time for the independent well drilling firm to visit the party's residence to document and survey the pre -blast condition of the party's well. A record of these pre-blest 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 Apr•19. 2006 11 56AM • No•1544 P. 9 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 thea 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. 10. Reelamation 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 Virginia Department of Mines and Minerals 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 p,.4 affixed lighting structures above - ground on the berms other than as may be weed required for or provided by regulations that affect the plant operations, including but not limited to Aline Saferv Health Administration ( "MSHA ") Virginaa Department of Mines and Minerals and Energy ( "DIvLME ") and any other governmental or regulatory body that oversees mining operations. eeave _ epere6eis. there shall be lie pefMaflei3tly iied a .. E g hli ` ng used for devices or machines that convey materials or fo 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. APr•19 13. 14. 15. 2008 11 56AM . No•1544 P - 10 Air Permit 13.1 The Applicant shall maintain its existing general air permit controlling emissions in accordance with the Virginia Department of Environmental Quality standards and also see that the existing general air permit covers all activities conducted on the rezoned Properties. 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 the all areas currently in trees on property owned by the Applicant which is outside of the rezoned Properties, shall be maintained using best management practices, and w hieh is mere speeifieall-f deser - ibed i L .l an d ..�.: .,il. .mot _ F A � i t o r i e 14.3 The Applicant proffers to keep its mining operations at least 200 feet from the edge of Cedar Creek. h a ot h er. designaAed e (°° &&igpimed eii "'° ^""hea acid ated plat), the disiaa��e may be inere&sed, Phasin 15.1 The Applicant agrees that mining activities on the Properties shall occur with the following phasing: 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 the ?' 23 Mining in t13e— tea eoarcel 23 area 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. Avr.19. 2008 11:5oAM No.1544 P, 12 Respectfi ally submitted, M Its: O -N MNERALS (CHEMSTONE) COMPANY COMMONWEALTH OF VIRGINIA, AT LARGE FREDERICK COUNTY, To -wit: The foregoing instrument was acknowledged before me this day of 2008, by NOTARY PUBLIC My commission expires: C Department of Planning and Development 540/665 -5651 FAX: 540 1665 -6395 September 8, 2006 Mr. Thomas Moore Lawson Lawson and Silek, P.L.C. 120 Exeter Drive, Suite 200 Winchester, VA 22604 RE: Rezoning 403 -06; 0 -N Minerals Chemstone Company Preliminary Review of Revised Proffer Statement Dated August 23, 2006 Dear Ty: The County appreciates the opportunity to review an advanced copy of the above referenced revised Proffer Statement. It is our hope that the additional comments offered by the County will be helpful to the Applicants as they continue to work on this rezoning application. General All comments previously offered by Mr. Bob Mitchell, County Attorney, in his review letter dated March 27, 2006 should be thoroughly addressed. As revised, the proffer statement does not address any of those comments offered by Mr. Mitchell. Staff would support the County Attorney's opinion that any proffer that provides a commitment to do something that is already required by Federal, State, and Local requirements, or the Applicant's Mining Permit, should be removed from the proffer statement. For purposes of clarity and understanding it would be preferable to limit the commitments in the proffer statement to those that are above and beyond the scope of any existing requirements, whether required by Code or by Permit. Land Use A generalized development plan, in conjunction with the proffer statement, is an efficient tool that the applicant could use to further clarify any commitments made as part of the rezoning application. 107 North Kent Street, Suite 202 • Winchester, Virginia 22601 -5000 RZ03 -06 Revised Proffer Comments September 8, 2006 Page 2 The, Applicant may want to better utilize the generalized development plan. For instance, the specific areas of land disturbance could be clarified; the location of any buffers, berms, screening, and landscaping could be identified; areas of existing mature woodlands that are to be preserved could be identified; and, the location of any additional site development improvements could be shown. The Applicant's proffer (1.2) to not engage in certain uses restates the uses as identified in the Zoning Ordinance with the exception of cement and lime kilns. It may be clearer to specifically prohibit the uses and also to use the same language that is contained in the Zoning Ordinance. The final part of the sentence does not appear to be necessary. The Applicant has previously stated that the future use of the property will be consistent with the present use of the property. Further, that no additional construction of buildings or facilities associated with the mining operation will occur on the properties for which the rezoning is being sought. To that end, the proffer statement provides the applicant with the opportunity to clarify the scope of any additional building or facility construction, beyond the mining operations, on the properties being rezoned. Due consideration should be given to buildings that may be erected by the FCSA as part of the future use of the property as a water source. 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 the type of uses on the property would limit the potential impacts of the EM development of this property. Site Development The Applicant's proffer (2.1) to clarify site access does not specifically address the prohibition of vehicles between the properties bisected by Chapel Road. It may be helpful to provide additional assurances that vehicular access and /or commercial entrances to and from the site will not occur in this location. The use of a viewshed analysis, as previously suggested, that addresses the unique viewsheds and approaches critical to the perspectives of the various identified historical stakeholders would be helpful. The approach could also be used for the adjacent property owners. The Applicant has the ability to proffer a specific viewshed mitigation plan. This would be preferable to the present approach, which restates existing State requirements and provides no commitment to a minimum standard designed to achieve an effective buffering, berming, and landscaping plan. RZ03 -06 Revised Proffer Comments September 8, 2006 Page 3 The distance buffers and landscaped earthen berms proffered (2.1 and 2.2) would be required by current DMME regulations. Consideration should be given to providing a more sensitive approach to the unique environmental and aesthetic qualities of the area of the property adjacent to Cedar Creek. A significant riparian buffer, consisting of preservation of the mature woodland areas adjacent to Cedar Creek, would appear to be a reasonable consideration for inclusion into the generalized development plan for the property. The protection of other environmental features that exist on the property would also be desirable. Consideration should also be given to providing a more detailed approach to the viewshed mitigation along Chapel Road. This may include a sensitive approach to buffer and screening, along both sides of this rural road. Historic Resources With regards to the historic reserve proffer (3.1), the recipient of the historic reserve area should be identified and incorporated into the proffers and the mechanism for the dedication of the property should be more specific and timely. It may be helpful to dedicate an area of no disturbance and /or tree preservation around the site to assist in preserving the integrity of the dedicated historical area. It was previously noted that the mature woodlands between the dedicated area and the ridgeline above the dedicated area provide a good area for such a preservation buffer and is beyond the area proposed for mining operations. The proffer to complete a Phase 1 archeological survey of the property (3.2) appears to be for only one of the two properties. 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 applicant has proffered to complete a Phase 1 Archeological Survey of the property in the future. However, as noted by Mr. Mitchell, no commitments have been made beyond a Phase 1 Survey and the proffer does not address what protection will be afforded to any historic sites, buildings, structures, or objects identified in the archeological survey. A commitment to any necessary additional surveys consistent with the guidelines of the Department of Historic Resources may be appropriate. Staff would concur that the preferable chronology would be to have the Phase 1 Archeological Survey completed prior to the rezoning, so that any historical elements could be addressed as part of the rezoning process. Special attention should be provided to addressing the burial sites that are located on the property. These features were not identified in the Applicant's Impact Statement. It would be desirable to deal with the unique concerns of these features ahead of, and independent from, the Cultural Resource Surveys. RZ03 -06 Revised Proffer Comments September 8, 2006 Page 4 Rights to Water Supply. Proffer 4.1 appears to be an unnecessary proffer, based upon the understanding that the Frederick County Sanitation Authority already has an agreement in place which secures the ground water resources of the property. Transportation Proffer 8.1 does not appear to provide for a valid independent and indisputable mechanism for monitoring a proffered limitation on truck traffic. The Applicant has not addressed the potential impacts associated with the anticipated truck trips on the existing street system. In particular, the nature of the truck trips within the Town of Middletown. In addition, the inter -site activity of heavy equipment and vehicles could be addressed further within the Proffer Statement. Ground Water / Dust Control / Blasting Controls The ^,,ffPr (5,1) to i a minimum of three monitoring wells would be more effective ..,._. if the locations of the wells were identified and independently determined to be appropriate. Given the geological features of the immediate area, it is presently questionable as to how many wells would be necessary, and which locations would be appropriate. Further, impacts associated with the development of Parcel 90 -A -23 and the residential properties adjacent to this parcel, in particular in the Meadow Mills area, should also be a consideration. The proffer should be clarified to identify if the wells are to be located on the property or on adjacent property within 500' of the property line. Proffer 5.2 does not describe how the adverse impacts would be determined and who would determine that they were caused by mining operations on the property. Further, the proffer does not describe how they would be remediated, and who would determine the scope of the costs associated with any remediation. The above comment is generally applicable to all of the proffers that attempt to address the nuisance impacts associated with the mining of the property. Lacking more specificity, it would appear as though a third party would be necessary in interpreting and determining the details of the resolution of the proffers. Ultimately, this may involve the County and the Court system, both of which would be undesirable. Lacking the needed specificity, the enforceability of the proffers is questionable. The burden of enforceability would be the County's. An alternative approach for the application and proffer statement may be to seek to better understand the potential impacts associated with the proposed mining operations and seek to avoid them by refining the potential scope of mining operations. RZ03 -06 Revised Proffer Comments September 8, 2006 Page 5 The second paragraph of Proffer 5.2 should be removed, as it is a descriptive narrative. The commitment is described in Proffer 9.1. Proffer 6.1 is required by the Applicant's permit. When the term surrounding properties is used in the proffer statement, greater definition as to what properties would be included as surrounding properties should be provided. Proffer 6.2 does not appear to make sense as a sentence. Regardless, any adverse impacts should be avoided. Proffer 7.1 identifies two specific methods of blasting that are proposed to be prohibited. Further definition of these methods should be provided, as should the avenue for regulation. Would this be the responsibility of the DMME through their permitting process, or would it be the responsibility of the County as this may exceed the requirements of the DMME? The mechanism for voluntary pre -blast surveys, Proffer 9.1, should be established prior to the acceptance of the proffer statement. Further, the properties that are immediately adjacent should be clearly defined. Would this include property owners adjacent to either properties or only Parcel 83 -A -109? Also, who would bear the expense involved in determining that changes in condition are caused by the Applicant's mining operations? There may be an expense in resolving these issues that would be borne by the adjacent property owners. The monitoring of blasting activities is required by the Applicant's permit. Proffer 9.2 should ensure that a well provided in replacement of a well that was damaged due to mining operations be fully operational. This may entail a well that is not in the same condition as that which existed at the time of any pre -blast survey. For instance, a new well may need to be deeper to ensure a sustainable production of water for the property owner. Proffer 93, which addresses bonding, is not clearly written and does not provide information on the mechanism of implementation. The proffer appears to only be applicable if the property owners agree to participate in 9.1 and 9.2, and if it was determined that it was caused by the Applicant's mining operations. It may be helpful if the Applicant could provide information about their current bonding status with the DMME, their participation in the Minerals Reclamation Fund (MRF), and the potential costs associated with remediation and repair of adjacent wells and properties. Many of the proffers noted above lack detail sufficient enough to make the Proffer Statement enforceable. RZO -06 Revised Proffer Comments September 8, 2006 Page 6 Reclamation It may be helpful for the Applicant to demonstrate how the ultimate design and layout of the properties would occur upon the cessation of mining operations and subsequent use of the property as a water source. The reclamation plan should be designed so any reclamation activities and materials would be located in their final natural position. A phased approach to the timing and placement of reclamation materials may be desirable to address the buffering, screening, and berming components of any viewshed mitigation plans that are provided with this application. Again, the Generalized Development Plan may be helpful in achieving this objective. Proffer 10.2 may be unnecessary. Proffers 11.1, 12.1, and 13.1 are redundant, as they are required by the Applicant's permit. Environmental Proffer 13.2 could be clarified with regards to the discharge point onto Cedar Creek. The existing discharge point is located on property that is not part of this rezoning request. Any additional discharge points from all of the properties owned by the Applicant could be prohibited. As stated previously, the above comments are provided to assist the Applicant in their ongoing improvement of this rezoning application. The comments do not constitute an all- inclusive list of all of the issues associated with this rezoning application. Rather, it is an effort to recognize the more apparent issues. Please feel free to contact me if you have any questions. Sincerely, Michael T. Ruddy, AICP Deputy Director MTR/bad cc: Mr. John Riley, Jr., County Administrator. Mr. Richard Shickle, Chairman, Frederick County Board of Supervisors Mr. Spencer Stinson, O -N Minerals Global Chemstone E HALL, MONAHAN, ENGLE, MAHAN & MITCHELL A PARTNERSHIP OF PROFESSIONAL COR°ORAUCINS ATTORNEYS AT LAW WILBUR C. HALL (1892 THOMAS V. MGNAHAN (1924 -1999) 6301 EAST MARKET STREET 9 EAST BOSCAWEN STREET SAMUEL D. ENGLE LEESBURG, VIRGINIA WINCHESTER, VIRGINIA O. LELAND MAHAN TELEPHONE 703777 1 050 TELEPHONE 540 662 -9200 ROBERT T. MITCHELL, JR. FAx 540 -662 -4304 JAMES A. KLENKAR E -MAIL Iawyers@hallmonahan.com STEVEN F. JACKSON April 4, 2008 HAND - DELIVERED Michael T. Ruddy, AICP Deputy Director Frederick County Department of Planning & Development 107 North Kent Street Winchester, VA 22601 APR 4 2008 PLEASE REPLY TO: P. O. Box 848 WINCHESTER, VIRGINIA 22604 -0848 Re: Chemstone -- Middletown [O.M. Minerals ( Chemstone) Company] Proposed Proffer Statement Dear Mike: have reviewed the above- referenced proposed Proffer Statement with a revision date of March 18, 2008. (By letter dated March 27, 2006,1 had previously reviewed a Proposed Proffer Statement with a revision date of February 17, 2006 in this rezoning.) It is my opinion that the Proffer Statement is generally in a form to meet the requirements of the Frederick County Zoning Ordinance and the Code of Virginia, subject to the following comments: 1. This Rezoning Application is for two separate, non - contiguous parcels. It is important to note that, as submitted, the proposed proffers do not apply separately for each parcel, and the proffers would not apply if one of the parcels, but not the other, were rezoned. 2. The two parcels are not consistently identified in the proffers, including references to "Northern Reserve ", "Middle Marsh ", and "Northern Property ". References to the parcels should be changed throughout the Proffer Statement to the parcel number of the respective parcels. 0 • HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy, AICP April 4, 2008 Page 2 3. 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. 4. In proffer 1.2, the Applicant is proffering out certain permitted uses in the EM zoning district. The first three uses proffered out are listed as permitted uses in the EM district in § 165 -85 of the Zoning Ordinance. The fourth use proffered out ( "Cement and lime kilns ") would appear to be included under permitted use E ( "Manufacture and processing of cement, lime and gypsum "). However, the fifth use proffered out ( "Coal and natural -fired power plants ") is not a listed permitted use in the EM district, and its inclusion is further complicated by the fact that the Applicant reserves the right to use power plants as necessary to support extractive mining activities. Unless it can be otherwise explained, the fifth listed use should be deleted. 5. In proffer 2.2, the Applicant is proffering distance buffers in addition to those required by the Zoning Ordinance, and further provides that the buffer shall be determined at the time of site plan submission. However, the proffer provides no minimum as to, and gives the County no control over, what the depth of those buffers will be. The second sentence of this proffer should be amended to read as follows: "The depth of said buffers shall be approved by the County at the time of site plan submission, and may vary based upon the topography of the site boundary." 6. With respect to proffer 2.3, the Applicant submitted with the proposed proffer statement ten (10) Viewshed exhibits. However, the proffers make no reference to those exhibits. If the Applicant is proffering to construct the berms in accordance with the exhibits, then this proffer should provide that earthen berms shall be installed around the Properties' quarry pits in substantial conformity with the Viewshed exhibits submitted with the proposed proffer statement. Otherwise, the first sentence of proffer 2.3 would need to read as follows: "Earthen berms shall be installed around the Properties' active quarry pits, the design and construction of which shall be approved by the County at the time of site plan submittal, and said r� L HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy, AICP April 4, 2008 Page 3 berms shall be landscaped to minimize impacts to the viewshed of the surrounding community. "Further, the second sentence of proffer 2.3 should be amended to insert after the word "shall' the following: "be approved by the County at the time of site plan submittal and ". 7. In Proffer 3. 1, the Applicant proffers to dedicate an 8 acre historic site to a "recognized historical association and /or group" with one year of final rezoning. 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. 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, particularly without any commitment that the restrictions placed on the site would be acceptable to the grantee of the dedication. Also, as the 8 acre site is in proximity to the Belle Grove /Cedar Creek Battlefield historic site, the proffer should provide for the dedication of the 8 acre site specifically to the Cedar Creek Battlefield Foundation, or its assignee. (I note that the October 17, 2006 Proffer Statement which I previously reviewed, provided for the 8 acre site to be dedicated to the Belle Grove Foundation.) 8. Proffer 3.2 provides for a Phase I Archeological Survey within one year of final rezoning or prior to any land disturbance on the Properties. First of all, 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. Further, 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. Also, 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. 9. Proffer 3.3 references two cemeteries on the Properties. The first cemetery is located adjacent to Chapel Road. The initial version of this current Proffer Statement provided that "That cemetery will remain in an undisturbed state." • 0 HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy, AICP April 4, 2008 Page 4 This proffer was subsequently amended to delete the foregoing language and to insert the language "That cemetery is currently undergoing a historical restoration." It is not clear whether the historical renovation is being done by the Applicant or others. That should be specified in the proffer. Further, the proffer should still include a provision that the cemetery will remain in an undisturbed state following the said historical restoration. 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. 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 ". Also, in the last sentence the words "it is anticipated that" should be deleted from the beginning of the sentence. 10. I find Proffer 5.1 to be unclear. It appears to say that of three monitoring wells, one will be installed within 500 feet of the "Northern Properties' boundary." It is not clear whether this is referring to the northern parcel, or whether it is referring to the "Northern Reserve" as labeled in another location in the Proffer Statement. (This is an example of why all parcel references should be to the parcel number.) Further, the proffer provides that the wells shall be installed prior to any land disturbance on parcel A -3 -A -109, which is the parcel identified in Proffer 15.1 on which mining activities will commence no earlier than 10 years from the date of the rezoning. This would appear to indicate that mining activities may be conducted on Parcel 90 -A -23 for 10 years before any monitoring wells are installed. Also, this proffer should provide for the County to have access to the information from the monitoring wells. 11. In Proffer 5.2, the phrase "Subject to and consistent with the provisions of 9.2" at the beginning of the first sentence should be deleted. The inclusion of the phrase would appear to limit the responsibility to remediate adverse impacts to wells to those properties which opted for a pre -blast survey under Proffer 9.2. It should not be so limited, and, further, the responsibility for remediating adverse impacts to wells goes to all mining activities, not just blasting. HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy, AICP April 4, 2008 Page 5 12. Proffer 6. 1, concerning dust control, does not describe how and by whom "adverse impacts" to surrounding properties caused by dust will be determined. 13. It should be noted that the restriction on truck traffic in Proffer 8.1 is a maximum of 200 truckloads per day "averaged over the prior 30 days through the scale house hauling mine materials on and /or off the proposed quarry site from the existing quarry entrance." By averaging over the prior 30 days, Saturdays, Sundays, and holidays are included in the averaging, which days may or may not have traffic comparable to week days. Further, it should be determined whether truck trips through the scale house hauling mine materials would include all truck traffic entering and leaving the Property. 14. In Proffer 9.3, the word "a" before the words "period of time" should be changed to the word "the ". Also, 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. 15. The staff should determine in Proffer 12. 1, regarding prohibition on lighting structures on the berms, whether the exceptions to the prohibition swallow the prohibition. 16. In Proffer 14. 1, the County should determine whether it is satisfactory for the Applicant to choose the "recognized environmental entity" to check water emissions. 17. It is not clear what is being proffered in Proffer 14.2. It seems to be referring to an area outside of the property proposed to be rezoned, which would appear to mean on property not owned by the Applicant. Also, the proffer provides that the area being referred to "is more specifically described in the attached and incorporated plat ". Whatever plat is being referred to needs to be more specifically described. HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy, AICP April 4, 2008 Page 6 18. In Proffer 14.3, the County should determine whether the 200 foot setback for mining operations from the edge of Cedar Creek is adequate. Further, as in Proffer 14.2, the Applicant needs to specifically describe the "attached and incorporated plat ". 19. With respect to Proffer 15 (Phasing), it is noted that there was submitted with the Proffer Statement exhibits of four phasing plans. Proffer 15 does not make any reference to those exhibits. 20. The Proffer Statement makes reference to a Generalized Development Plan (GDP). While the Generalized Development Plan submitted is short on details, the Proffer Statement should provide that the development of, and mining operations on, the Properties shall be in substantial conformity with the MDP. It should be noted that I have not reviewed the substance of all of the proffers as to whether the proffers are suitable and appropriate for the proposed rezoning, or whether other proffers would be appropriate, as it is my understanding that this review will be done by the staff and the Planning Commission. It would be my recommendation in this rezoning that the staff and the Planning Commission carefully review all of the proffers, including, without limitation, proffers involving Site Development, Historic Resources, and Traffic, to determine if the proposed Proffer Statement adequately addresses impacts. If there are any questions concerning the foregoing comments, please contact me. ly yours, T. Mitchell, Jr. RTM /ks HALL, MONAHAN, ENGLE, MAHAN & MITCHELL A PARTNERSHIP OF PROFESSIONAL CORPORATIONS WILBUR C. HALL (1892 -1972) ATTORNEYS AT LAW THOMAS V. MONAHAN (1924 -1999) T 6307 EAST MARKET STREET 9 EAST BOSCAWEN STREET SAMUEL D. ENGLE LEESBURG, VIRGINIA WINCHESTER, VIRGINIA O. LELAND MAHAN TELEPHONE 703 777 1 05 TELEPHONE 540662-3200 ROBERT T. MITCHELL, JR. FAX 540 662 4304 .JAMES A. KLENKAR 7 E laawyers@hallmonahan.com STEVEN F. .JACKSON April 11, 2008 Michael T. Ruddy, AICP Deputy Director FrF.rlr�? -ir,(c �';�tint� Tl=narfiT;P.nt of Pl�npin(= & Development 107 North Kent Street Winchester, VA 22601 PLEASE REPLY TO: P. O. Box 648 WINCHESTER, VIRGINIA 22604 -0848 Re: Chemstone -- Middletown [O.M. Minerals (Chemstone) Company] Proposed Proffer Statement Dear Mike: Subsequent to my April 4, 2008 proffer review letter to you in the above matter, I have been advised that as to the eight -acre historic site referenced in Proffer 3. 1, that that site had previously been offered to Belle Grove, Inc. by Chemstone, that Belle Grove Inc. has conducted extensive archaeological studies on that site, and that the foundation of the mills of the Hite Family of Belle Grove is located on the site. Based on the foregoing, I would amend my recommendation in paragraph 7 of my proffer review fetter to recommend that Proffer 3.i provide for the dedication of the eight -acre site specifically to Belle Grove, Inc. I there are any questions concerning the foregoing, please contact me. With kind regards, I am yours, Robert T. Mitchell, RTM /glh COUNTY of FREDERICK Department of Planning and Development 540/665 -5651 FAX: 540/665-6395 January 3, 2006 Mr. Chuck Maddox, Jr. P.E. Patton Harris Rust & Associates, pc 117 East Piccadilly Street, Suite 200 Winchester, Virginia 22601 RE: O -N Minerals (Chemstone) Rezoning Proposal Location: The subject parcels are situated generally west and adjacent to the Town of Middletown. Property Identification Numbers (PINs):53 -A -90, 91 Zoning District: RA (Rural Areas) Dear Mr. Maddox: The Frederick County Historic Resources Advisory Board (HRAB) considered the above referenced rezoning proposal during their meeting of December 20, 2005. The FIRAB reviewed information associated with the 1992 National Park Service Studv ofCivil' 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. Historic Resources Advisory Board Concerns 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 ofthe Battle ofCedar Creek and the property (691 acres) also contains the site where the Nieswanger Fort once stood. It is the intent ofthe applicant to rezone this property to the EM (Extractive Manufacturing) Zoning District to accommodate the expansion of the quarry operation. .file HKAB expressed concern that the proposed rezoning was uoi protecting the % icwshcd offhe 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 could support the approval of this project if the following suggestions are considered in order to mitigate impacts on the historic resources: A Phase t Archeological Survey needs to be done on the site, focusing on core battlefield areas and the site of the Nieswanger Fort. If warranted by the Virginia Department of Historic Resources, subsequent studies should be performed. (Phase 11 /III). A detailed Viewshed Mitigation Analysis /Plan needs to be completed that will show the effects ofthe new quarry operation from key points (critical areas and views /pull -offs to be determined by the National Park Service, Belle Grove and the Cedar Creek Battlefield Foundation). This plan needs to be completed before any land disturbance is allowed on the site and implementation of any 107 North Kent Street, Suite 202 • Winchester, Virginia 22601 -5000 r i • Mr. Chuck Maddox Re: O -N Minerals Rezoning Proposal January 3, 2006 Page 2 suggestions that may result from the plan should be given a proffered timeline. In addition, the viewshed study should also ensure that views from Chapel Road are not impaired. • Cedar Creek should be bridged so that quarry trucks can use this route instead of going through historic Middletown and passing by the Belle Grove entrance. • The conveyer system being discussed should be studied further to ensure that it does not impact the viewshed or create noise issues. The amount oftraffic this system will alleviate should be provided as well. The applicant should propose a plan for the conveyer system that will not have a huge visual impact on the surrounding landscape. • A timeline for the removal of the existing stockpile of dirt (overburden) that can be seen from the Cedar Creek Battlefield needs to be provided with this proposal. • Strategic landscaping needs to be looked at, as well as preserving natural existing landscaping, as opposed to high berms to try to screen the operation. A detailed landscaping study needs to be done for the site. • The location for the overburden from the new quarry operation needs to be provided so that large piles of dirt similar to the current operation are not present, maximum elevations for new berms need to be proffered. A documented plan for any new berms and overburden stockpiles needs to be provided. • Perimeter fencing and lighting details need to be provided so that they do not affect the adjacent historic uses. • The proffers provided to the HRAB included an eight acre reserve for Belle Grove. The proffer states that, "Said reserve shall be set aside for future dedication to Belle Grove Foundation ". This proffer includes no timeline for the dedication of the property and as provided, the dedication could never happen. A specific timeline for the dedication ofthis property needs to be provided to ensure that the Foundation is given this property. Piease contact me with any questions concerning these commea,t, from the HRAB. Sinc Candice E. Perkins Planner 11 CEP /bad cc: Rhoda Kriz, Harold Lehman, HRAB Members Bill Ewing Opequon District Supervisor Mike Ruddy, Deputy Planning Director HALL, MONAHAN, ENGLE, MAHAN & MITCHELL I,JAH 2 a A PARTNERSHIP OF PROFESSIONAL CORPORATIONS March 27, 2006 HAND DELIVERED Michael T. Ruddy, AICP Deputy Director Frederick County Department of Planning & Development 107 North Kent Street Winchester, VA 22601 PLEA5E REPLY TO; P. O. Box 848 WINCHESTER, VIRGINIA 22604 -0648 Re: Chemstone - Middletown (O -N Minerals Chemstone Company) Proposed Proffer Statement Dear Mike: 1 have reviewed the above - referenced Proposed Proffer Statement. It is my opinion that the Proposed Proffer Statement is generally in a form to meet the requirements of the Frederick County Zoning Ordinance and the Code of Virginia, subject to the following comments: 1. In the first sentence of the first paragraph, it is not clear what is being addressed by the language "shall supersede all other proffers that may have been made prior hereto." I assume that this is referring to previous versions of this Proposed Proffer Statement. It should be made clear that it is not referring to previous proffers that may have been approved as a part of a rezoning on this or other property owned by the Applicant. Therefore, I would suggest the above quoted language be amended to read: "shall supersede all previous versions of this Proposed Proffer Statement." ATTORNEYS AT LAW WILBUR C. HALL (1892 -1972) THOMAS V. MONAHAN (1924 -1999) T a 307 EAST wARKET STREET 9 EAST BOSCAWEN STREET SAMUEL D. ENGLE LEESBURG, VIRGINIA WINCHESTER, VIRGINIA O. LELAND MAHAN TELEPHONE 703 -777 1050 TELEPHONE 540 662 320D ROBERT T. MITCHELL, JR. FAx 540- 662 -4304 .LAMES A. KLENKAR E -MAIL lawyers @hallmonanan. mm STEVEN F. JACKSON DENNIS J. MCLOUGHLIN, JR. March 27, 2006 HAND DELIVERED Michael T. Ruddy, AICP Deputy Director Frederick County Department of Planning & Development 107 North Kent Street Winchester, VA 22601 PLEA5E REPLY TO; P. O. Box 848 WINCHESTER, VIRGINIA 22604 -0648 Re: Chemstone - Middletown (O -N Minerals Chemstone Company) Proposed Proffer Statement Dear Mike: 1 have reviewed the above - referenced Proposed Proffer Statement. It is my opinion that the Proposed Proffer Statement is generally in a form to meet the requirements of the Frederick County Zoning Ordinance and the Code of Virginia, subject to the following comments: 1. In the first sentence of the first paragraph, it is not clear what is being addressed by the language "shall supersede all other proffers that may have been made prior hereto." I assume that this is referring to previous versions of this Proposed Proffer Statement. It should be made clear that it is not referring to previous proffers that may have been approved as a part of a rezoning on this or other property owned by the Applicant. Therefore, I would suggest the above quoted language be amended to read: "shall supersede all previous versions of this Proposed Proffer Statement." HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy March 27, 2006 Page 2 2. It does not appear that the second sentence of the second paragraph would be applicable to these proffers, and I would recommend that that sentence be deleted. 3. I have trouble with the third sentence of the second paragraph, which states "Any proffered conditions that would prevent the Applicant from conforming with State and /or Federal regulations shall be considered null and void." The Applicant is in a better position than the County to determine whether any of the proffered conditions would prevent the Applicant from conforming with State and Federal regulations. In my view, this sentence should be deleted. 4. The words "and shall include the following:" should be deleted from the end of the second paragraph. 5. In paragraph 1.1 of Section I (Land Use), the proposed proffer would not appear to be a proffer, as it does not propose to do anything otherwise required by the zoning ordinance or state law. If the Applicant is proposing to limit the uses pennitted in the EM District, that needs to be clearly stated. 6. Section 2 (Site Development): a. This proffer in paragraph 2.2 appears to merely state that the width of the distance buffers on the property shall be more than that required by the zoning ordinance. However, it does not quantify in any way the extent to which it will exceed the distance buffers required. This proffer requirement could be met by a minimal increase in the distance buffer. I question why the width of the distance buffers cannot be shown on the Generalized Development Plan. Also, this proffer does not address the issue of what screening, if any, will be placed in the distance buffers. b. With respect to paragraph 2.3, does the zoning ordinance or State or Federal regulations require earthen berms around active quarry pits? If not, then paragraph 2.3 should set forth a specific proffer that earthen berms will be HALL, MONAHAN, ENGLE, MAHAN be MITCHELL Michael T. Ruddy March 27, 2006 Page 3 installed around active quarry pits. With respect to the landscaping of the earthen berms, the staff needs to determine whether the description of the landscaping in this proffer is sufficiently specific. 7. Section 3 (Historic Resources). a. The proffer in paragraph 3.1 proposes to create an 8 -acre "historic reserve ", and then to "dedicate" the reserve to the Belle Grove Foundation. My assumption is that there is an 8 -acre portion of the property that the Applicant is going to deed to the Belle Grove Foundation. if that is the case, I question why it should take up to one year after the rezoning to make that conveyance. Also, since I was not provided with a copy of the GDP, I do not know where the 8 -acre parcel is located, and if it is located in the interior of the property, there should be included a proffer that a right of way will be conveyed, to go along with the conveyance of the 8 acres, for access by the Foundation to the 8 -acre parcel_ b. 3.2 provides for a Phase I Archaeological Survey within one year of final rezoning or prior to any land disturbance on a portion of the property. However, the proffer does not address what protection will be afforded any historic sites, buildings, structures, or objects identified in the Archaeological Survey. It would seem that the preferrable chronology would be to have the Archaeological Survey done prior to the rezoning, so that any historic elements could be addressed as a part of the rezoning process. 8. Paragraph 4.1 of Section 4 (Rights to Water Supply) would not appear to constitute a proffer, in that it appears that the Frederick County Sanitation Authority already has the rights to the groundwater resources under the "existing agreements ". Perhaps something more than this was intended to be proffered. HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy March 27, 2006 Page 4 9. In paragraph 5.1 of Section 5 (Groundwater) the Applicant provides for the placement of three monitoring wells on the property. However, it would seem to me that the County should have access to the information, and that the proffer should provide that the County will have access to the monitoring wells and to the data from the monitoring wells. 10. The first two sentences of paragraph 7.1 of Section 7 (Blasting Control) would not seem to constitute a proffer, and merely state that blasting will be done in accordance with the Applicant's mining permit. 11. While the second paragraph of the Proposed Proffer Statement identifies the Generalized Development Plan, there needs to be a sufficient proffer that the development of the property will be in substantial conformity with the GDP. Where in my above comments I have opined that a proposed proffer is really not a proffer, I have noted that to make the point that it does not propose to do anything above and beyond what is otherwise required. It does not necessarily mean that the statement needs to be deleted, if the County feels that it is helpful to emphasize that particular requirement. It should be noted that I have not reviewed the substance of the proffers as to whether the proffers are suitable and appropriate for the rezoning of this specific property, or whether other proffers would be appropriate, as it is my understanding that that review will be done by the staff and the Planning Commission. If there are any questions concerning the foregoing comments, please contact me. yours, Robert T. M RTM/ks ENT Ot tH Y � _ o M i ,B�e In reply refer to: 27 March 2006 United States Department of the Interior " "PARK "` SERVICE NATIONAL PARK SERVICE Cedar Creek and Belle Grove MA f 2 National Historical Park 7718 '/ Main St., P.O. Box 700 Middletown, Virginia 22645 Mr. Eric Lawrence, Director Frederick County Department of Planning and Development 107 North Kent St.. 2 Floor Winchester, VA 22601 Dear Mr. Lawrence: We are writing to transmit our comments regarding the O -N Minerals Chemstone Property Rezoning Request. The Chemstone property is adjacent to Cedar Creek and Belle Grove National Historical Park (NHP). O -N Minerals Chemstone provided us with a copy of their rezoning request and we in turn asked the National Park Service's Geologic Resources Division to prepare an analysis of the proposal. The Geologic Resources Division, based in Lakewood, Colorado, provides national leadership and specialized assistance for managing geologic resources and protecting park resources from the adverse effects of mineral development in and adjacent to national parks. The Division is staffed with geologists, minerals specialists, mining and petroleum engineers, policy and regulatory analysts, and natural resource specialists. They, in addition, consulted with an agency hydrologist to provide input on the potential impacts on water quantity. The attached memorandum references a photograph of Cedar Creek Battlefield taken in October 2005 during the annual reenactment of the Battle of Cedar Creek. A copy of the photograph is attached for your information. Please feel free to call me with any questions or concerns about the attached information. I may be reached at my office at (540) 868 -9176. Sincerely, Diann Jacox V Superintendent Cc: Attachments: 1. Memorandum from Geological Resources Division, National Park Service. 2. Photograph taken during 2005 Reenactment of the Battle of Cedar Creek. Spencer Stinson, O -N Minerals Chemstone Kris Tierney, Assistant County Administrator Michael Ruddy, Frederick County Deputy Planning Director TAKE NAMERIGA� UAW States Department ofte Interior NATIONAL PARK SERVICE Geologic Resources Division P.O. Box 25287 Denver, CO 80225 TRANSMITTED VIA ELECTRONIC MAIL - NO HARDCOPY TO FOLLOW L2360 March 24, 2006 Memorandum To: Diann Jacox Superintendent, Cedar Creek and Belle Grove National Historical Park From: Carol McCoy Chief, Planning, Evaluation & Permits Branch Geologic Resources Division National Park Service Subject: O -N Minerals Chemstone Property Rezoning Request In response to your request, the Geologic Resources Division (GRD) has reviewed several documents associated with O -N Minerals Chemstone's request to rezone 691 acres adjacent to Cedar Creek and Belle Grove National Historical Park. Specifically, my staff reviewed Chemstone's Impact Analysis Statement (June 2005), Chemstone's Rezoning Application Materials (Dec. 2005), Commonwealth of Virginia mining and mineral regulations, and Frederick County rezoning regulations and guidance. We believe that the rezoning documents submitted by O -N Minerals Chemstone do not adequately address Frederick County requirements or the impacts on the surrounding area, including the park. With this in mind, we offer the following comments for your consideration. General Comments The proposed rezoning and subsequent expansion of the limestone quarry on the O -N Minerals Chemstone Property ( Chemstone) adjacent to Cedar Creek and Belle Grove National Historical Park may adversely impact park lands and resources. These resources include the "nationally significant Civil War landscape and antebellum plantation' ' and the "[t]he panoramic views of the mountains, natural areas, and waterways ... an inspiring setting of great natural beauty" (see 16 U.S.C. § 410iii -1). Unfortunately, we believe that Chemstone's Impact Analysis Statement and Rezoning Application Materials do not fully address the likely impacts of the rezoning/expansion of the quarry on these valuable and unique resources. TAKE J NAMERICA ., As you know, Cons directed the National Park Service (10) to "encourage conservation of the historic and natural resources within and in proximity of [Cedar Creek and Belle Grove National Historical] Park by land owners, local governments, organizations, and businesses." In accordance with this mandate and NPS policies, we recommend that you work closely with Frederick County and the Commonwealth of Virginia in the rezoning and quarry expansion processes in order to avoid, mitigate, and resolve potential resource conflicts. Specific Comments Based on our review, Chemstone's Impact Analysis Statement does not include several topics required by Frederick County. These topics include "the use of surrounding land and potential economic, physical, visual, nuisance, and other impacts on surrounding properties" (Code of Frederick County § 165 - 12(0)(1)), "the anticipated increase in potential population resulting from the rezoning" (Code of Frederick County § 165- 12(C)(4)), "the projected additional demand for ... public facilities" (Code of Frederick County § 165- 12(C)(5)), and a full discussion of the impacts on historic structures and sites (Code of Frederick County § 165- 12(C)(8)). Chemstone's Impact Analysis Statement and Rezoning Application Materials also inadequately address the following topics: Air quality impacts from fugitive dust and equipment emissions — Chemstone's rezoning application documents do not include any analysis of possible air quality impacts. Dust generated from mining operations, crushers, conveyors, vehicles, or windblown dust from the large disturbed area is not mentioned nor is possible mitigation of dust - related issues addressed. These documents should also quantify emissions from mining equipment and haul trucks, including the proposed increase in haul trucks and any other mobile or point source. Increased Haul Truck Traffic — Chemstone's Traffic Impact Analysis modeling (March 2005) suggests that the mine expansion could result in an increase of 801 truck trips per day, for a total of 1,308 truck trips in Middletown, a town of 1,200 residents. This proposed increase may detract from the quality of life and be a threat to public safety. Increased truck traffic may also negatively impact those traveling to Frederick County to visit Cedar Creek and Belle Grove National Historical Park and/or other area attractions. Chemstone has suggested that it could construct a conveyor system that would decrease the amount of truck traffic required by the mine expansion. Frederick County should be encouraged to require this conveyor system as a condition of Chemstone's rezoning proposal in order to avoid the impacts of increased truck traffic in Middletown and in Cedar Creek and Belle Grove NHP. Noise and vibration — Sources of noise and vibration are also not quantified in Chemstone's rezoning application documents. Noise generated by mining operations, crushers, conveyors, and haul trucks is likely to be significant and will not be confined to the existing or rezoned property. Blasting which may take place in quarry operations will not only generate noise impacts, but also carries with it potential vibration issues which pose a threat to adjacent structures. It is important to note that Belle Grove Plantation House, built in 1797, is a Historic Landmark and is included on the National Register of Historic Places. Therefore, TAKE PRIDE' ►NAMERICA7z;,�4 .: _, . .:, _ ,, ,; :�. .. , ,. ,_ �. s. � . we suggest that Fre*ck County require that Chemstone suet a detailed noise and vibration study as part of its rezoning application to address impacts and mitigation measures for sensitive adjacent resources such as those found in Cedar Creek and Belle Grove National Historical Park. Night lighting — Chemstone's rezoning application documents did not specify if quarry operations are conducted 24 hours per day. However, if operational or security lighting is used at the quarry site, impacts to the night sky and the historical scene may occur. Dust or other particulate matter generated at the site will exacerbate night lighting impacts to surrounding properties. Property values and historical scene — Chemstone's rezoning application documents fail to address the existing and expanded project's impact on adjacent property values and the historic scene for which this area is well known. The "historic impact assessment" contained in the December 2005 Rezoning Application Materials document states that "[w]e cannot, and have not, and do not want to save all land where history `happened. "' Such a sweeping statement fails to analyze the impacts of Chemstone's quarry operations on the historic and natural resources of Cedar Creek and Belle Grove National Historical Park. A photograph obtained by GRD of the October 2005 historic battle reenactment at the park clearly shows the Chemstone quarry in the background, dramatically illustrating the striking impact of modern, large scale mining operations on historic properties. We believe that the "historic impact assessment" in Chemstone's rezoning application documents should fully analyze these impacts and present acceptable methods for mitigating them. Ground and surface waters -- The section of the Rezoning Application Materials pertaining to groundwater impacts does briefly mention the subject of aquifer drawdown due to possible interception of groundwater from quarry operations, but fails to address possible surface impacts associated with aquifer drawdown other than sinkhole formation. This document also does not discuss possible impacts on water rights or groundwater quality. Further, the text of the Rezoning Application Materials implies that only the 30 wells and septic systems within 1500 feet of the Chemstone property would be affected by aquifer drawdown. However, Plate 4 of this same document indicates that a 10 foot aquifer drawdown could occur at least 9,600 feet from the potential quarry areas. For all of these reasons, we believe that the groundwater analysis as it relates to off site impacts is extremely inadequate. Possible impacts due to the disposal of the anticipated large amount of intercepted groundwater into surface waterways should also be analyzed in detail. Proffer Statement — Based on my staff's interpretation of Virginia's mining and mineral regulations, most of the conditions included in Chemstone's proffer statement would likely be required by the Virginia Department of Mines, Minerals and Energy as part of the mine expansion permit or by existing agreement. With the exception of the 8 -acre "historic reserve," we do not interpret the proffer statement as providing additional protection for the area's historic resources. The Geologic Resources Division appreciates the opportunity to provide these comments. if you have any questions or if we can be of any further assistance, please contact either Kerry Moss or Julia Brunner of my staff at 303 - 969 -2634 or 303 - 969 -2012, respectively. TAKE PRIDE" INAMERICA-Qz�%R 0 0 0 • ,UN 20 2005 Rezoning Comments - - CHEMSTONE - MIDDLETOWN Virginia Department of Transportation r� U • Mail to: Virginia Dept. of Transportation Attn: Resident Engineer 14031 Old Valley Pike Edinburg, VA 22824 Hand deliver to: Virginia Dept. of Transportation Attn: Resident Engineer 14031 Old Valley Pike Winchester, VA 22601 Mailing Address: ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Location of Property: 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Virginia Department of Transportation Comments: See attached letter frem VDE)T- te PHR&A dated july 19 2005. VDOT Signature & Date: r Notice to VDOT — Please Return This Form to the Applicant 0 Applicant's Name: Patton Hams Rust & Associates, pc Pnone: (-')4U) 00 1-Z 1 JV v COMMONWEALTH ®f VIRGINIA DEPARTMENT OF TRANSPORTATION 14031 OLD VALLEY PIKE GREGORYA.WHIRLEY EDINBURG VA 22824 ACTING COMMONWEALTH TRANSPORTATION COMMISSIONER July 19, 2005 Mr. Patrick Sowers C/O Patton, Harris, Rust & Associates 117 E. Piccadilly Street Winchester, VA 22601 Ref: Chemstone — Middletown Dear Mr. Sowers: 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 addresses 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. Thank you for allowing us the opportunity to comment. Sincerely, u L L oyd A. Ingrain Transportation Engineer • LAI/rf Enclosure — Comment Sheet VirginiaDOTorg WE KEEP VIRGINIA MOVING 0 REO iVED JUN i r 2005 Rezoning Comments CHEMSTONE - MIDDLETOWN Frederick County Fire Marshal E • Mail to: Frederick Co. Fire Marshal 107 N. Kent St. Winchester, VA 22601 (540) 665 -6350 Hand deliver to: Frederick Co. Fire & Rescue Dept. Attn: Fire Marshal Co. Administration Bldg., l Floor 107 N. Kent Street Winchester, VA 22601 Applicant's Name: Patton Harris Rust & Associates, nc. Phone: (540) 667 -2139 Mailing Address: ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester VA 22601 Location of Property: 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Fire Marshal's omments: SEE �-fd�elr:� Fire Marshal's Signature & Date Notice to Marshal — Ph se Return This Form to the Applicant 11 0 R Control number RZ05 -0005 Project Name Chemstone Address 117 E. Piccadilly St. Type Application Rezoning Current Zoning 0 Automatic Sprinkler System No Other recommendation Emergency Vehicle Access Not Identified Siamese Location Not Identified Emergency Vehicle Access Comments Access Comments Additional Comments Will not directly effect fire & rescue. Date reviewed 6/30/2005 Applicant PHR&A State Zip VA 22601 Fire District 12 Recommendations Automatic Fire Alarm System No Requirements Hydrant Location Not Identified Roadway /Aisleway Width Not Identified Date Revised Applicant Phone 54M67 -2139 Rescue District 12 Election District Residential Sprinkler System No Fire Lane Required No Special Hazards No • Plan Approval Recommended Reviewed By Signature Yes John J. Bauserman Title � F I FI V%E - MARSHAL 9 - FREDEFdCX - 00U NW 1 0 Date received 6/17/2005 0 lerick County Fire and Rescue Department Office of the Fire Marshal Plan Review and Comments City Winchester Tax ID Number 83 -A- 109,90 -A -2 0 r Frederick County Inspections • Mail to: Frederick County Inspections Attn: Building Official 107 N. Kent Street Winchester, VA 22601 (540) 665 -5650 Hand deliver to: Frederick County Inspections Attn: Building Official 107 N. Kent Street Winchester, VA 22601 t. net 'i 605 Applicant's Name: Patton Harris Rust & Associates, pc Phone: (540) 667 -2139 Mailing Address: ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Location of Property: 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 Hiles 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). Current Zoning: RA Zoning Requested: E M Acreage: 691 acres Inspection's Comments: A / X i �' v v e d X i� �[ YVI M In Signature & Date: 6 No ' to Inspections— Plea eturn This Krin to the Applicant 16 4� Aw . �. Ile❑ 9 ^° March 27, 2006 Mr. Patrick Sowers Patton Harris Rust K Associates, p.c. 117 E. Piccadilly Street Winchester, Virginia 22601 RE: Chenlstone Rezoning Frederick County, Virginia Dear Patrick: COUNTY of FREDERICK Department of Public Works 540/665 -5643 FAX: 540/678 -0682 The revised proffer statement furnished to this office on March 21, 2006, has adequately addressed om'rezoning comments dated .June 29, 2005. Therefore, we grant our approval for the suUject rezoning assuming that any impacts are mitigated as indicated in the revised proffer statement. Sincerely, jr Harvey E. Strawsnyder, Jr., P.E. Director of Public Works HES /rls cc: Mike Ruddy, Planning and Development file C:AProgram He0l'oMPerfeet Office 11\ Rhonda \TE.MPCObIN I ENTSVCIII MS ONEizEzPRUSCA1'J9T.,cpd 107 North Kent Street • Winchester, Virginia 22601 -5000 0 f COUNTY of FREDERICK Department of Public Works 540/665 -5643 FAX: 540/678 =0682 Mr. Patrick Sowers Patton Harris Rust & Associates, p.c. 117 East Piccadillv Street- Suite 200 Winchester, Virginia 22601 RE: Chemstone - Middletown Rezoning Frederick County, Virginia Dear Patrick: We have completed our review of the proposed rezoning from RA to EM and offer the following cormnents: Refer to page 4, Enviromnental 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. • 2. 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 proposed expansion of the mining operation will be close to existing residential 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. I can be reached at 722 -8214 if you should have any questions regarding the above comments. Sincerely. HarvnEawsnyder, Jr., P.E. Director of Public Works HES /rls cc: Planning and Development file A Achemstonerezeom.wpd 107 North Kent Street • Winchester, Virginia 22601 -5000 • 0 • Rezoning Comments CHEMSTONE - MIDDLETOWN Frederick County Sanitation Authority Mail to: Frederick Co. Sanitation Authority Attn: Engineer P.O. Box 1877 Winchester, VA 22604 (540) 868 -1061 Applicant's Name: Mailing Address: Location of Property: Hand deliver to: Frederick Co. Sanitation Authority JUN 2 2005 Attn: Engineer TML 315 Tasker Road Stephens City, VA Patton Harris Rust & Associates, vc ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Phone: (540) 667-2139 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 Hires 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Sanitation Authority Comments: Sanitation Authority Signature & Date: Notice to Sanitation Authority— Please Return This Form to the Applicant 14 Page 2 • Rezoning Comments CREMSTONE - MIDDLETOWN 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. • r 1 LJ • � C71v9 ©s�ab�8� �a - A _ • Rezoning Comments CHEMSTONE - MIDDLETOWN Frederick — Winchester Health Department • • Mail to: Frederick - Winchester Health Dept. Attn: Sanitation Engineer 107 North Kent Street Winchester, VA 22601 (540) 722 -3480 Applicant's Name: Mailing Address: Location of Property: Hand deliver to: Frederick - Winchester Health Dept ' Attn: Sanitation Engineer I JUN 1 7 2005 107 North Kent St., Suite 201 Winchester, VA 22601 BY___ ____ ___ __ _ _ _ __ __ (540) 722 -3480 Patton Harris Rust & Associates, pc ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Phone: (540) 667-2139 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Frederick— Winchester Health Department's Comments: y� y Signature & Date: =62 S— Notice to Health Department — Please Return This Form to the Applicant 15 0 • Notice to Fire & Rescue Company — Please Return This Form to the Applicant Rezoning Comments CHEMSTONE - MIDDLETOWN Frederick - Winchester Service Authority Mail to: Fred -Wine Service Authority Attn: Jesse W. Moffett, Executive Director P.O. Box 43 Winchester, VA 22604 (540) 722 -3579 Hand deliver to: Fred -Winc Service Aut Attn: Jesse W. Moffett 107 North Kent Street Winchester, VA 22601 ry `i' JUN 1 7 2005 10 u L/ Applicant's Name: Patton Harris Rust & Associates, nc Mailing Address: ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Location of Property: Phone: (540) 667 -2139 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Fred -Winc Servic Authority's Comments: Flo l.(yVtilMPA�y Fred-Wine Sery ice Authority's Signature & Date: 21 0 RIPMENTO JUN 1 7 2005 JUN ]. 7 2005 • BY: - - - -- RezoninQ Comments - -- --- CHEMSTONE - MIDDLETOW r ncucnron wUia 1 MOM WORK & INSPECT!( Frederick County Department of Geographic Information Services (GIS) Attn: Marcus Lemasters, GIS Director 107 N. Kent Street Winchester, VA 22601 Applicant's Name: Patton Harris Rust & Associates, pe Phone: (540) 667 -2139 Mailing Address: ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Location of Property: 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Department of GIS Comments: No road /name requirements noted. A ny r ne that provi.es urinary access to four (4) or more occupied business structures ,shall be Numbering will be assigned as app GIS Signature & Date: Notice to Dept. of GIS — Please Return This Form to the Applicant • 19 0 CI 0 Rezoning Comments CHEMSTONE - MIDDLETOWN Winchester Regional Airport • • Mail to: Winchester Regional Airport Attn: Executive Director 491 Airport Road Winchester, VA 22602 (540) 662 -2422 Hand deliver to: Winchester Regional Airport Attn: Executive Director 491 Airport Road Winchester, VA Applicant's Name: Mailing Address: Location of Property: Patton Harris Rust & Associates, pc ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester. VA 22601 Phone: (540) 667 -2139 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Winchester Regional Airport's Comments Winchester Regional Airport Signature & D Notice to Winchester Regional Airport — Please Return This Form to the Applicant RECD JUN 2 0 2005 17 0 WINCHESTER REGIONAL AIRPORT 491 AIRPORT ROAD WINCHESTER, VIRGINIA 22602 (540) 662 -2422 June 24, 2005 Patton Harris Rust & Associates C. E. Maddox, Jr., P.E., Sr. VP 117 East Piccadilly Street, Suite 200 Winchester, Virginia 22601 Rey Rezonina Comments Chemstone — Middletown Property Back Creek Magisterial District Winchester, Virginia Dear Mr. Maddox: We have reviewed the referenced rezoning proposal. Allowed uses under this rezoning should not effect airside operations of the Winchester Regional Airport. • Thank you for providing us the opportunity to review these plans and for supporting the Winchester Regional Airport. Sincerely, Serena R. Manuel Executive Director 0 0 0 • • RezoninE Comments CHEMSTONE - MIDDLETOWN Frederick County Department of Parks & Recreation Mail to: Frederick County Dept. of Parks & Recreation 107 North Kent Street Winchester, VA 22601 (540) 665 -5678 Applicant's Name: Mailing Address: Location of Property: Hand deliver to: Frederick County Department of Parks & Recreation Co. Administration Bldg., 2 nd Floor 107 North Kent Street Winchester, VA 22601 Patton Harris Rust & Associates. pc ATTN: Patrick Sowers 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Phone: (540) 667 -2139 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). Current Zoning: RA Zoning Requested: EM Acreage: 691 acres Dept. of Parks & Recreation Comments: Signature & Dat4t. /� J 7 Notice to of Parks & Recreation — Please Re n This Form to the Applicant 12 0 __,1,10 Ao Fr 0 Frederick County Public Schools Administrative Assistant to the Superintendent Visit us at www.frcdcrick.kl2.va.us July 26, 2005 • Mr. Patrick Sowers Patton Harris Rust & Associates, pc 117 E. Piccadilly Street, Suite 200 Winchester, VA 22601 Dear Mr. Sowers: RE: Rezoning comments for Chemstone - Middletown Property e -mail: kapoc sis9 f re der i ck. kl 2. va. u s This letter is in response to your request for comments concerning the zoning application for the proposed Chemstone- Middletown Property project. 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. Respectfully yours, �v Stephen Kapocsi Administrative Assistant to the Superintendent • SMK/dkr cc: William C. Dean, Ph.D., Superintendent of Schools 540- 662 -3889 Ext 112 1415 Amherst Street, Post Office Box 3508, Winchester, VA 22604 -2546 FAX 540- 662 -3890 SEP -27 -05 11 :51 PM • II m Town of Middletown Mail to: Town of Middletown Attn: Town Manager P.O. Box 96 Middletown, VA 22645 (540) 869 -2226 Raw Ldenvitt54i Towi r of Middletown Mtn; Town Manager - Mick [down Town Hall 7875 Church Sheet Midi letown, VA P.02 Mailing Address: - ATlrl Patrick Sowtss N Street. Sgi a 200 wincitestilL VA 22601 Location of Property: - • The subject parcels are situated generally west of the Town of adjaeent Spcci6catly, the Middle Marsh Pmperty is located east of Belk View LAna atoute 758), and west and adjacent to Bites Road Route 625),Aad is fiuther traversed by del Road (Route 627). The NonttenrReserve is bounded to the south byCedar Creak, and it w ;stand adjacent to Meadow Mills Road (Route 624). Current Zoning: RA ZoningRequested: " EM ' Acrea ;e: _ ' 691 acres Town of Middletown's Comments: TL.. M4441_ _ Pl=gln r W U41 . ..f— ..Ooo8e4- to the orairrr. v is opposed to of truck traffic ddletown and has concerns about the affect of excavation on the water table. Town of Middletown's Signature & Date: Ge lr n U r+ � Notice to Town of Middletown - PleaseRetoru This Forn to the Applicant 24 • .•k cCVn- COO _nea H31S3HOWIM t1MHd 444140 so 92 dog Applicant's Name: _ __ Panon H jUj Rust A Associates, vo Phor t: f540) 667-213 9 January 2006 0 Chemstone - Middletown • IV. AGENCY COMMENT'S •