HomeMy WebLinkAbout03-06 Comment B Mitchell CorrespondenceMay-21. 2006 11:33AM
HALL, MONAHAN, ENGLE, MAHAI
A PARTNERSHIP OF PROFESSIONAL. CORK
No. 0219 P. 1
FAX TRANSMITTAL
DATE: 05/21/06
TRANSMIT TO:
Name:
PERSONAL AND CONFIDENTIAL
Mike Ruddy
6
Fax No.: 65 -6395
FROM:
Name: Bob Mitchell
Location: Winchester, Virginia
Fax No,: (540) 662 -4304
MESSAGE;
Copy of Memorandum for Conference on May 21, 2008
attached.
TOTAL NUMBER OF PAGES (INCLUDING THIS PAGE): 2
ATTORNEYS AT LA W
WILBURC. HALL (Ia92 -1972)
7,4307 EAST MARKET STREET
THOMAS V. MONAHAN (1924 -1999)
LEESBURG, VMGINIA
SAMUEL D. ENGLE
TELEPHONE; 703.777 -1050
O. LELAND MAHAN
FAX: 703-7714113
ROBERTT. MJTCKELL, JR.
JAhIES A. KLENKAR
STEVEN F. JACKSON
No. 0219 P. 1
FAX TRANSMITTAL
DATE: 05/21/06
TRANSMIT TO:
Name:
PERSONAL AND CONFIDENTIAL
Mike Ruddy
6
Fax No.: 65 -6395
FROM:
Name: Bob Mitchell
Location: Winchester, Virginia
Fax No,: (540) 662 -4304
MESSAGE;
Copy of Memorandum for Conference on May 21, 2008
attached.
TOTAL NUMBER OF PAGES (INCLUDING THIS PAGE): 2
May. 21. 2008 11:33AM
No. 0219 P. 2
HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
A PARTNERSHIP OP PNOPESSIONAL COWORARONS
WILBUR C. HALL (1892 - 1972)
ATTORNEYS AT LAW
THOMAS V. MONAHAN (1924 -1999) 7 6 207 EAST I XCf STREET - 9 PAST BOSCAWEN STREET
SAMUEL D. ENOLE L&CSeURG, AROINU WINCHESTER, VIRGINIA
O, LELANO MAHAN TELEPHONE 703-777 1050 TEL PHONC OAd662'JE00
ROBERT T. MITCHELL, JR. FM 14 9 "2 04
JAMES A. KLENKAR C Ie em @hstlmenahxw
STEVEN F. JACKSON May 21, 2008
VIA FAX 27 2 -4051
Thomas Moore Lawson, Esquire
Lawson and Silek, P.L.C.
P. O. Box 2740
Winchester, VA 22064
Re: Chemstone Rezoning
Dear Ty:
PLEA E REPLY M:
R O. Box 846
WINCHESTER, VIRGINIA 2 260 4 -08 48
In an effort to expedite our conference this afternoon, I have prepared for
consideration by you and your client the memorandum concerning matters in the
revised Proffer Statement. It will probably further expedite the conference this
afternoon if you could share this memorandum with Mr. Stinson in advance of the
conference.
Very truly yours,
Robert T. Mitchell, Jr.
RTM/ks
Enclosure
CC: Mike Ruddy via fax
r
MEMORANDUM FOR CONFERENCE DRAFT
ON MAY 21, 2008
With respect to my commments on the legal review of the Proposed Proffer
Statement (May 20, 2008 revision) I would offer the following comments,
suggestions on the following items, which would enable me to make a more positive
updated comment to the Board of Supervisors on those items:
1. In the hearing of the Proposed Proffer Statement in the item for
PROPERTY, consider stating the following:
PROPERTY: acres (insert revised acreage)
Portions of Tax Map Parcels 83 -A -109 ( "Parcel
109 ") and 90 -A -23 ( "Parcel 23 ") (the "Properties ")
2. Consider begiiming the first paragraph of the Proposed Proffer
Statement as follows:
The undersigned Applicant hereby proffers that the use and
development of the portions of the above - referenced parcels
which are requested to be rezoned, the portions requested to be
rezoned being shown on the attached and incorporated plat
identified as "Exhibit I", shall be in strict conformance ...
3. In the second paragraph of the Proposed Proffer Statement, check the
date of the GDP. I think it should be "May, 2008 ".
4. In the second paragraph, consider amending the last sentence to read:
Applicant proffers that its operations, activities, and development
of the Properties will be in substantial conformity with the GDP.
5. Proffer 2.2 (Proposed to be deleted) The deletion of this proffer
needs to be discussed. There should be buffer commitments in the proffers.
6. Proffer 2.3 (Renumbered 2.2 in the most recent revision): For clarity,
consider restructuring Proffer 2.3 into two proffers as follows:
2.3 Earthen berms shall be installed around the active quarry pits
in the location shown on the GDP. The berms shall have a
maximum height of 30 feet and minimum height of 10 feet. The
berms (Berm A and Berm B) depicted on the Phase I Plan of the
GDP shall be installed within 10 years of the approval of the
rezoning. The berms (Berm C and Berm D) depicted on the Phase
II Plan of the GDP shall be installed no later than 10 years prior
to the commencement of mining north of Chapel Road. The
berms shall be landscaped to minimize impacts to the viewshed
of the surrounding community. Such landscaping shall consist of
mix of deciduous and coniferous plantings placed in random
manner to be consistent with existing vegetation patterns. The
description of the plants to be installed on the berms are more
specifically described in the attached and incorporated `Exhibit
2.4 The existing overburden stock pile on the southeast corner of
the current Middletown plant site shall be reduced in height to the
greater of 30 feet or the height of the adjacent tree line (lying to
the east) within 5 years of the approval of the rezoning.
7. Proffer 3.2 For clarity, consider rewording the first two sentences as
follows:
The Applicant shall complete a Phase I Architectural Survey on
the portions of Parcel 23 and Parcel 109 which are rezoned. The
Applicant will not commence mining operations on Parcel 23
until the Phase I Architectural Survey has been completed on that
2
parcel, and will not commence mining operations on Parcel 109
until the Phase I Architectural Survey has been completed on that
parcel.
8. Proffer 8.1 For clarity, consider rewording the first four sentences
to read as follows:
The Applicant proffers to restrict truck traffic to the Properties to
86 truck loads per day, averaged over the prior 30 days, except in
the event of a business emergency or hardship, in which event the
truck loads per day shall not exceed 200 per day, averaged over
the prior 30 days, said truck loads to be counted through the scale
house hauling mined materials on and/or off the quarry site from
the existing 'quarry entrance. For purposes of this proffer,
"business emergency or hardship" shall mean circumstances
which impair or prohibit usual shipment or delivery of materials,
including, without Imitation, interruption of rail service and
interruption of truck service.
Query: Does the 200 per day limit need to be averaged over the prior 30 days?
9. Proffer 9.3 Consider adding the following sentence to this proffer:
The Applicant shall annually provide to the County a Certificate
of Insurance from the insurance carrier.
10. Proffer 14.2 Consider adding after the word "Properties" the
following:
and identified on the GDP as "Middletown Woods ",
11. Proffer 15.1 Consider adding before "GDP" the following words:
Phasing Plans of the
K
The following needs to be addressed with respect to exhibits:
1. Proffer 2.3 - The exhibit number needs to be inserted and the exhibit
provided.
2. Proffer 3.1 - "Exhibit 3" needs to be provided.
3. Proffer 5.1 - What is the "attached and incorporated plats "? Is it a
separate exhibit which needs to be numbered and identified, or is it making reference
to a plat in the GDP? If the reference is to a GDP plat, the specific GDP plat needs
to be identified in the proffer.
4. Proffer 9.1 - The exhibit number needs to be inserted and the exhibit
provided.
5. Proffer 9.2 - The exhibit number needs to be inserted and the exhibit
provided. In addition, there was discussion at the last conference about the well
guarantee agreement being made an exhibit to the proffers. If so, a reference to that
exhibit needs to be placed in Proffer 9.2, and the exhibit numbered and provided.
M
D . %
I havebeen provided with an excerpt from the Lease to Chemstone Corporation
of Tax Parcel 90 -A -2 on which a berm (Berm A) is to be constructed. I need to be
provided with the description of the Property under the Lease (Exhibit A). Also, as
this berm is to be constructed on property not owned by the Applicant, I would
suggest that the following needs to be added to Proffer 2.3, above:
With respect to Benn A, located on Tax Parcel 90 -A -2, not
owned by Applicant, the berm will be constructed by Applicant
as the tenant under a 99 -year lease of Parcel with authority
under the lease to construct Berm A.
5
LAWS ®N AND SI LEK, P.L.C.
120 ExE'I ER DRIVE, sHITE 200
POST OF FICE Box 27411
wINCHES'FER, VA 22604
TELEPHONE: (540) 665 -0050
FACSIMILE: (540) 722 -4051
May 20, 2008
Michael T. Ruddy, Deputy Director
Planning and Development
County of Frederick
107 North Kent Street, 2 Floor
Winchester, VA 22601
Robert T. Mitchell, Esquire
Hall, Monahan, Engle, Mahan & Mitchell
P.O. Box 848
Winchester, VA 22604
MAY 2 1 2008
I II0MAS MOORE L%NVSON 'I AWS0Nra1LSPLC,COM
t__ -.-
Re: O -N Minerals (Chemstone) Company
Our File No. 462.006
REZ #03 -06
VIA FACSIMILE AND U.S. MAIL
Dear Gentlemen:
It was nice meeting with you yesterday to discuss the above - referenced proffers. As we
agreed, I enclose a redline version of the revisions we have discussed and also copies of the
Exhibits. I understand we plan to get together tomorrow at 3:30 p.m. to review the proper
package.
Thank you for your continued assistance and cooperation. I look forward to hearing from
you.
TML:atd
Enclosure
cc: O -N Minerals (Chemstone) Company
FRorvi ROinL AODRESE: Post OECICE Box 602, FROn RoyAI, VIRGINIA 22630, TELEGuo6E: (540) 635 -9415, FACSINIILE: (500) 635 9421, k: mAn: w L64 a 6R]COYRECI CQM
FAIRE�xAUUREYx:
10805 M,ANS$.EEI', SI.iiv,20, FAIRE \],%IRGINIA 22630.1ELEPHONE:(701) 1522615, FACsnui 0:(7103) 352- 4190,E -MAIL: THOM L1N'.so.,,�'ERI /o�NET
REZONING
PROPERTY
RECORD OWNER:
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S):
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 ")
O -N Minerals (Chemstone) Company
O -N Minerals (Chemstone) Company
Chemstone - Middletown
June 13, 2005
January 16, 2006
March 18, 2008
Nl tk_20,_
February 8, 2006 August 28, 2006
April 18, 2008_ Mav 14. 2008
"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 which the decision has been affirmed on
appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and /or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
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 grid*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
2. 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
Development Plan," shall refer to the plan entitled "Generalized Development Plan, O -N
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.
placed in a random manner in order to be consistent with existing vegetation
patterns. The existing overburden stock pile on the southeast corner of the current
Middletown plant site shall be reduced in height to the greater of 30 feet or the
height of the adjacent tree line (Ivim to the east) within 5 years of the approval of
the rezoning. Furthermore. the plantings, including but not limited to, the
descriptions of the plants to be installed on the berms are more specifically
described in the attached and incorporated "Exhibit Said berms shall be
limited to a maximum height of 30 feet and be of a minimum height of 10 feet:'
add the'.,btrms shall,be'.htiilf,as set forth in the! GDP Said berms shall be installed
in the following order. The berm depicted on the Phase I plat shall be installed
within 10 years of the approval of the rezoning. The berm depicted on the Phase
II plat shall be installed no later than 10 years prior to the commencement of
mining north of Chapel Road.
3. Historic Resources
3.I 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
reserv w ill b us ed by the Properties' owner and fut owners. A cope of said
restrictions are attached an& incorporated a ' xhibri 3?' Said reserve land shall
be dedicated to the Cedar Creek Battlefield Foundation, Inc. armed
— __. _ . _ _r_,
tol - tiaT ssi v wt —vzn 60 days of final rezoning.
[NOTE: the aforementioned 8 acre historic reserve property is not to be included
in the property to be rezoned. 1
3.2 The Apnlicant shall complete a Phase I Archaeological Survev of
Applicant may commence mining activities on a particular portion of the
Properties before the completion of the Phase I survey for all of the P roperties,
but under any and all circumstances, no mining operations shall commence on
any portion of the Properties until after the Phase I Archeological Survey has been
completed on said portion of the Properties. Said survey shall locate, identify,
and comprehensively record all historic sites, buildings, structures, and objects on
the parcels. Such survey shall be conducted in accordance with the guidelines for
a Phase 1 Survey as defined in the Virginia Department of Historic Resources
"GUIDELINES FOR CONDUCTING CULTURAL RESOURCE SURVEY IN
VIRGINIA - Chapter 7: Guidelines for Archaeological Investigations in
Virginia," 1999 (Rev. Jan. 2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the benning area. That cemetery is currently undergoing a
historical restoration. After the historical restoration, the Applicant will follow
the recommendations of the Applicant'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 improve' = epee said right -of-
way so that it can be used for access by the desupddants of those in the
said right -of -way has been opened, the Applicant will
provide continued maintenance and have use of same.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the water resources available on the Properties in accordance with the
existing agreements between the Applicant and FCSA.
5. Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 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. The exa location of the= monitorin ='wells is
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and /or structures, which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, ,hat- 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 (DMM) 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's current number of truck loads leaving the site on a daily basis is
approximately 63 and the Applica has had higher numbers o recorded truck
loads leaving the plant to a total of 114 truck loads per day. The Applicant, in its
proffer, is agreeing to restrict truck traffic to the Properties to 86 truck loads per
day averaged over the prior 30 days. but intends to also have an ability to increase
the number of truck loads i the event of an ewer -encv or c wh ich
— -- - - - - -- --
could be caused by issues driven by Applicant's customers. suppliers, and /or
carriers. Examples of such shall include. but are not limited to. an interruption of
rail service to the site and /or any sites that are serviced by rail from Applicant's
Properties and/or any other interruption of the ability to deliver materials at the
_Applicant's site or anv other sites which are owned. controlled. or by business
relationship connected with Applicant's site fo that end and in any
circumstance, Tthe Applicant agrees to restrict truck traffic to the Properties to a
maximum of 200 truck loads per day averaged over the prior 30 days through the
scale house hauling mined materials on and /or off the proposed quarry site from
the existing quarry entrance. The maximum number of truck loads will be
regulated by the Applicant and its successors and /or assigns. A record of the
actual number of truck loads per day shall be kept current (and maintained for one
year) by the Applicant at its scale house office. Said record shall be made
available in a form which confirms the number of trips and the form will be
produced to Frederick County officials upon demand with reasonable notice. The
Applicant_}Pr the re will b no truck loads fr om the Properties on Sundays
and the hours of truck loading on Saturdays will be no later than 7:00 p.m. The
Applicant further proffers it will instruct all truckers as to the proper route of
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 firm, which will investigate and
document the pre -blast conditions of the participants' residences and /or
outbuildings. The Applicant and its successors and assigns will contact all
citizens who have p within 1.50 feet of the Properties. and monitor the
tax roles for Frederick County on an annual basis in order to contact anv citizens
who have recently urchased the aforementioned property. Phis contact will be
made by Applicant and its successor and assigns to invite citizens who have
property within 1,500 feet of the Properties' boundaries to participate in the pre -
blast surveys. Contact will be made by registered return- receipt letters, mailed
annually from the time of the rezoning. All citizens who have property within
1,500 feet of the Properties' boundaries can and are encouraged to participate in
the survey by contacting the Applicant and scheduling a mutually agreeable time
for the independent engineering firm to visit the party's residence to document
and survey the pre -blast condition of the party's residences /outbuildings
following the procedures set forth in the attached and incorporated "Exhibit
If the property owner agrees to participate. t TFhe Applicant's and /or its
engineering firm shall ° rtb have the +ight -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 participating property owner as a
result of mining operations the engineering firm will then conduct a follow -up
visit and investigation and use the pre -blast information as a control and basis for
subsequent analysis. Said analysis shall be used to determine the cause of any
negative change in condition. If it is determined there is a change in condition in
the residences /outbuildings, which has been caused by the Applicant's mining
activities on the Properties, then the Applicant agrees to remediate and /or repair
said negative change in condition to restore it to its status prior to blasting
operations. In addition, the Applicant agrees to establish seismic monitoring of
the proposed quarry site to monitor all blasting activities and keep records of said
seismic monitoring as required by the 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 or hvdrogeologist which will
investigate and document the pre- mining conditions of the participants' wells.
The Applicant and its successors and assigns will contact all citizens who have
property within 1 500 feet of the Properties' boundaries and monitor the tax roles
for Frederick County on an annual basis in order to contact an c itizens w have
recently urchased the aforementioned property This contact will be made by
Applicant and its successor and assigns to invite citizens who have property
within 1,500 feet of the Properties' boundaries to participate in the well
moni toring s urveys _C ontact _wi ll be m by s ann ually registe re turn -
reccipt letters. All citizens who have property located within 1,500 feet of the
Properties' boundaries can and are encouraged to participate in the survey by
eon ng-- the —Appl a nal -- 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 following the proeedures set
forth in the attached and incorporated "Exhihit " A record of these pre - mining
conditions will be kept by the independent well drilling firm, with copies retained
by the Applicant and the participating property owner. In the event a change of
condition is alleged by the property owner as a result of mining operations, the
Applicant will provide an interim replacement water supply as necessary to
supply the property owner with water. The well drilling firm will then conduct a
follow -up visit and investigation and use pre -blast information as a control and
basis for subsequent analysis. If it is determined that the status of the neighboring
property owner's well has deteriorated from the condition it was in at the time of
the pre -blast survey, then the Applicant agrees to restore the well to its condition
existing at the time of the pre -blast survey and /or provide the adjoining property
owner a replacement well of the same condition (or better) of that which existed
at that time of the pre -blast survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for the period of time covering the active
mining operations on the Properties and to maintain in effect for a period of one
year from the date of cessation of said mining operations, and to cover the costs of
any remediation and /or repair, which is required pursuant to the terms of sections
9.1 and 9.2 above. Said policy or surety shall be in the amount of no less than
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the 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 affixed lighting structures above - ground on the berms other than
as may be required for or provided by regulations that affect the plant operations,
including but not limited to, Mine Safety Health Administration ( "MSHA "),
Virginia Department of Mines and Minerals and Energy ( "DMME "), and any
other governmental or regulatory body that oversees mining operations.
Lighting used for devices or machines that convey materials or for pit crushing
facilities and other mining activities is permitted. Conveying and pit crushing
facilities shall also be interpreted as including such other devices or activities that
perform similar or related functions that may come into use and /or existence at
some time in the future while the extractive mining use is still in effect on the
Properties. In addition t th above all_l 4- , hting ti i ll_ be i nstalled in s uch a manner
that there will be no spillover beyond anproperty line of the Applicant onto
adjacent properties not owned by the Applicant.
13. Air Permit
13.1 The Applicant shall maintain its existing general air permit controlling emissions
in accordance with the Virginia Department of Environmental Quality standards
and also see that the existing general air permit covers all activities conducted on
the rezoned Properties.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
14.2 The Applicant agrees that all areas currently in trees on property owned by the
Applicant, which is outside of the rezoned Properties, shall be maintained using
best management practices.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek.
15. Phasine
Alter the rezoning is approved, the Applicant will start creating berms on the
newly rezoned Properties and the Applicant shall start quarrying in the area
identified as parcel 23. Mining in parcel 23 shall occur from the time period
commencing with the approval of the rezoning for a period of time which is
estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
By:
Its:
dSa The Applicant agrees that mining act on the Properties shall occur with the
following phasing the GDP
O -N MINERALS (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
FROM TY LAWSON'S OFFICE
Mike Ruddy
Page 1 of I
From: Alison Dow [adow @lsplc.com]
Sent: Tuesday, May 20, 2008 4:13 PM
To: mruddy @co.frederick.va.us, RMITCHELL @HALLMONOHAN.COM
Cc: 'Ty'
Subject: FROM TY LAWSON'S OFFICE
Ty Lawson asked me to forward the attached revised Proffer Statement, which includes one new revision to
paragraph 2.2., striking out the words "including but not limited to ".
Thank you.
Alison T. Dow, Legal Assistant
Lawson and Silek, P.L.C.
P.O. Box 2740
Winchester, Virginia 22604
Telephone: (540) 665 -0050
Fax: (540) 722 -4051
E -mail: adow @lspic.com
The information contained in this message is information intended only for
the use of the individual or entity named above, and may be attorney /client
privileged and confidential. If the reader of this message is not the
intended recipient, you are hereby notified that any dissemination,
distribution or copying of this communication is strictly prohibited. If
you have received this communication in error, please immediately notify us
by telephone and return the original message to us at the above address.
Thank you.
No virus found in this outgoing message.
Checked by AVG.
Version: 7.5.524 / Virus Database: 269.23.21/1455 - Release Date: 5/19/2008 5:04 PM
5/20/2008
HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
A PARTNERSHIP OF mROFE5510NAL CORPORATIONS
WILBUR C. HALL (1892 - 1972)
ATTORNEYS AT LAW
THOMAS V. MONAHAN (1924 -1999) 7 b 307 EAST MARKET STREET 9 EAST BOSCAWEN STREET
SAMUEL D. ENGLE LEESBURG, VIRGINIA WINCHESTER, VIRGINIA
O. LELAND MAHAN TELEPHONE 700 777-1050 TELEPHONE 540 66 2 3 200
ROBERT T. MITCHELL, JR. FAX 540 - 692 4304
JAMES A. KLENKAR n E- MAIL la"OrS @hallmonahanmm
STEVEN F. JACKSON May 19, 2000 p
HAND - DELIVERED
Michael T. Ruddy, AICP
Deputy Director
Frederick County Department of Planning &
Development
107 North Kent Sheet
Winchester, VA 22601
PLEASE REPLY TO
P. 0. 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 the revised Proposed Proffer Statement dated May
14, 2008. This letter will update my proffer review letters dated April 4, 2008 (as
revised my proffer review letter dated April 11, 2008 as to Proffer 3.1) and April 21,
2008.
With the exception of setting forth the revision dates on the face of the Proffer,
and revisions to a portion of Proffer 2.3 and Proffer 5. 1, the Proffer Statement has not
been revised to address the comments and recommendations in my April 21, 2008
proffer review letter.
For ease of reference, I am attaching hereto review comments from my prior
proffer review letters which still apply to the May 14, 2008 revised Proposed Proffer
Statement.
HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
Michael T. Ruddy
May 19, 2008
Page 2
If there are any questions concerning the attached updated review comments,
please contact me.
y yours,
Robert T. Mitchell,(Jr.
RTM /ks
Enclosure
CC: Thomas Moore Lawson, Esquire, via fax
.. , T. .
COMMENTS ON
MAY 14. 2008 REVISED PROFFER STATEMENT
General:
1. 1 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.
2. In the second paragraph the proffer statement references a GDP dated
March 18, 2008. However, the GDP plats submitted with the March 18, 2008
Proposed Proffer Statement are dated "June 2007'. The reference to the date of the
GDP needs to be corrected.
3. The next to the last sentence of the second paragraph should more
specifically identify what is being submitted as the GDP. I would suggest language
along the following lines: "The Applicant attaches and incorporates the GDP, which
includes a plan titled Generalized Development Plan; a plan titled Overall Plan; four
plans titled Phase I Plan, Phase lI Plan, Phase III Plan and Phase IV Plan; and ten
vewshed plats titled Viewshed IA, Viewshed 113, Viewshed 2, Viewshed 3,
Viewshed 4A, Viewshed 4B, Viewshed 5A, Viewshed 513, Viewshed 6, Viewshed 7
and Viewshed 8."
4. In the last sentence of the second paragraph the Applicant states "The
Applicant submits its operations and activities will be in general conformance with
the Generalized Development Plan." The usual reference to a GDP in a proffer
statement is to proffer that the development will be in "substantial conformity" with
the GDP. Accordingly, I would recommend that the last sentence of the second
paragraph be revised to state as follows: "The Applicant proffers that its operations
and activities and development of the Properties will be in substantial conformity
with the GDP."
5. The third sentence in the second paragraph states: "Any proffered
conditions that would prevent the Applicant from conforming with the State and /or
Federal regulations shall be considered null and void." The Applicant is in a better
position than the County to determine whether or not any of its proffers are not in
conformity with the State or Federal regulations, and this sentence should be deleted.
6. In a number of places in the Proposed Proffer Statement (second
paragraph on Page 1, Proffer 2.3, Proffer 5. 1, Proffer 9. 1, Proffer 9.2) a reference is
made to an exhibit as "Exhibit ". On the eve of final action on this proffered
rezoning, all exhibits should be numbered and the exhibit numbers set forth in the
proffers. A complete and final Proffer Statement, with all exhibits, must be before
the Board at the time final action is taken on the rezoning.
Proffer 2.3 (Berms)
1. The revised proffer is, at best, confusing and incomplete. The revised
proffer states "The berm depicted on the Phase I plat shall be installed within 10 years
of the approval of the rezoning." However, the Phase I Plan depicts two berms,
"BERM A" and "BERM B ". Further, this would seem to indicate that mining
operations would continence 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.
2. The revised proffer purports to address my prior comment that the
proffer is not specific as to the landscaping to be installed by adding the sentence,
"Furthermore, the plantings, including but not limited to, the descriptions of the
plants to be installed on the berms are more specifically described in the attached and
incorporated `Exhibit '." First of all, the words "the plantings, including but not
limited to" should be deleted from the sentence. Further, staff should review the
exhibit (I was not provided a copy) to determine if the plants proposed to be installed
are satisfactory.
3. The sentence regarding the overburden stock pile has been added. It
should be noted that the reduction in height of the stock pile does not have to occur
for 5 years, and, further, the Applicant is only obligated to reduce the height to thirty
feet, which may be higher than the adjacent tree line.
Proffer 3.1 (8 -acre Historic Site)
1. The revised proffer changes the grantee of the site to the Cedar Creek
Battlefield Foundation, Inc. My recommendation is that it be conveyed to Belle
Grove, Inc., for the reasons set forth in my April 11, 2008 letter revising my April 4,
2008 proffer view letter as to this proffer.
2
2. It would appear that any necessary plat work to delineate the 8 -acre
site has already been done, or could be quickly done. Accordingly, there should be
a commitment to dedicate the 8 acre site within 60 days of final rezoning.
3. Further, if the 8 -acre site is to be promptly dedicated, I question the
need or advisability of the Applicant placing restrictions on that 8 acre site,
particularly without specifying the restrictions in the proffer and without any
commitment that the restrictions placed on the site would be acceptable to the grantee
of the dedication.
4. IN A NOTE TO THIS PROFFER THE APPLICANT STATES THAT
THE 8 -ACRE SITE "IS NOT TO BE INCLUDED IN THE PROPERTY TO BE
REZONED ". THIS WOULD BE A CHANGE IN THE APPLICANTS'
APPLICATION AS TO THE PROPERTY REQUESTED TO BE REZONED. THE
APPLICANT SHOULD SPECIFICALLY AMEND ITS REZONING REQUEST IN
WRITING, AND NOT SOLELY BY A PARENTHETICAL NOTE IN AN
INDIVIDUAL PROFFER. FURTHER, THE GDP, AND PERHAPS OTHER
EXHIBITS, WILL NEED TO BE AMENDED TO SHOW THAT THE 8 -ACRE
SITE IS NOT PART OF THE PROPERTY SOUGHT TO BE REZONED.
Proffer 3.2 (Archeological Survey)
1. It would seem that it would have been advisable for the Archeological
Survey to have been conducted prior to the rezoning application, so that all historic
sites, buildings, structures, and objects on the property would be located and
identified in order for the impacts of the proposed rezoning on those historic features
to be evaluated.
2. The proffer contains no commitment as to how any such historic
features identified will be dealt with and protected in the development and use of the
property.
3
3. There is no commitment in the proffer to conduct further phases of
the study if warranted from the inforniation developed from the Phase I Study.
4. This proffer previously provided for a Phase I Archeological Survey
within one year of final rezoning or prior to any land disturbance on the Properties.
However, the May 14 revision changes the time period to do the survey from one year
to IS months. Further, the May 14 revision permits mining activities on a "portion
of the Properties" on which a survey has been done, but before a survey has been
done on all of the Properties. The "portion of the Properties" is not defined, and may
be construed to mean a portion of one of the two parcels. At the very least, there
should be a commitment to not commence any land disturbance on Parcel 23 or
Parcel 109 until the survey is completed for that parcel.
Proffer 3.3 (Cemeteries)
1. 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.
2. With respect to the second cemetery, reference is made to a right of
way, which the Applicant proffers to open. There is no commitment of the timing of
the opening of that right of way.
3. Further, the proffer provides that it will be open for access by "the
relatives" of those in the cemetery. 1 recon substituting the word "visitors" for
the words "the relatives ".
4. In the last sentence the words "it is anticipated that" should be deleted
from the beginning of the sentence.
Proffer 5.1 (Monitoring Wells) (I was not provided with a copy of the exhibit
referenced in this revised proffer. The exhibit must be included with the Proffer
Statement, and it should be reviewed by staff.)
M
Proffer 5.2 (Impact on Wells) By having the phrase "Subject to and consistent
with the provisions of paragraph 9.2" at the beginning of the first sentence, it may
limit the responsibility of the Applicant to remediate adverseimpacts to wells to those
properties which opted for a pre - mining survey under Proffer 9.2. It is my
reconunendation that that phrase be deleted from the beginning of Proffer 5.2.
Proffer 6.1 (Dust Control) This proffer does not describe how and by whom
"adverse impacts" to surrounding properties caused by dust will be determined.
Proffer 8.1 (Traffic)
1. By the adding of the first three sentences in this proffer in the May
14 revision, it would appear that what the Applicant is proffering that truck loads will
be limited to 86 truck loads per day, averaged over the prior 30 days, except in the
event of "emergency or circumstances ", in which event truck loads will be limited to
200 per day, averaged over the prior 30 days. It would seem that this portion of the
proffer could be more clearly and simply stated in the proffer.
2. The "emergency or circumstances" exception to the truck load limits
would appear to be very difficult for the County to document in enforcing this proffer.
3. The last sentence of this revised proffer is so vague as to be
unenforceable as a proffer.
Proffer 9.1 (Pre -Blast Surveys- Buildines) (I was not provided with a copy of
the exhibit referenced in this revised proffer. The exhibit must be included with the
Proffer Statement, and it should be reviewed by staff.)
Proffer 9.2 (Pre -Minin Surveys-Wells) I was provided with two documents
which would seem to apply to this revised proffer, although only one exhibit is
referenced in the proffer. One document appears to be the procedures for the survey,
and would appear to be the document referenced in the proffer as an exhibit. The
second document is titled "Well Guarantee Agreement ". It is not clear if this
document is meant to be incorporated into the proffer. If so, it needs to be referenced
in the text of the proffer. Not knowing the status of this document, I have not
undertaken to do a legal review of it. However, I did note that it states that the
Applicant will "replace or replenish" a well negatively impacted in such a way "as to
5
render it unsuitable for its existing use ". This would seem not to cover a situation
where the output of a well (gallons per day) is decreased, but the well is still usable.
Proffer 9.3 (Insurance) The staff should consider whether the $1,000,000.00
policy limits are adequate. hl 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.
Proffer 14.2 (Trees) Based on my discussions with Mr. Lawson, it appears
that this proffer is meant to apply to trees located on portions of the parcels which are
not being rezoned. It would appear that all of Parcel 23 is being rezoned (except,
now, for the 8 -acre site), and, therefore, this proffer is meant to apply to the portion
of Parcel 109 which is not being rezoned. This proffer needs to be reworded to
specifically identify the location of the area of trees which is the subject of this
proffer. Also, the area or areas of trees referenced in this proffer should be located
and identified on the GDP, with a reference in the proffer to the GDP. (My review
of the Tax Map would indicate that none of the parcels adjoining Parch 23 or Parcel
109 are titled to the same entity which owns Parcels 23 and 109. Further, no other
parcels are made subject to these proffers. Therefore, this Applicant could not
effectively proffer to maintain trees on any parcels other than Parcels 23 and 109.)
Proffer 15 (Phasing) This proffer needs to reference the Phasing Plans made
a part of the GDP, and to proffer that the phasing will be substantial conformity with
the Phasing Plans of the GDP.
IT
m AY 15 200B
LAWSON AND SILEK, P.L.C.
120 EXETER DRIVE. $11'1'E 200
POST OFFICE Box 2740
WINCH F,STER, VA 22604
TELEPHONE: (540) 665 -0050
FACSIMILE: (540) 722 -4051
May 14, 2008
Michael T. Ruddy, Deputy Director
Planning and Development
County of Frederick
107 North Kent Street, 2 Floor
Winchester. VA 22601
Robert T. Mitchell, Esquire
Hall, Monahan, Engle, Mahan & Mitchell
P.O. Box 848
Winchester, VA 22604
THOMAS NI OGRE. LA\ \'SOS • 'I'L, \55'SOS It I SPLC.Co NI
Re: O -N Minerals (Chemstone) Company
Our File No. 462.006
REZ #03 -06
VIA FACSIMILE AND U.S. MAIL
Dear Gentlemen:
As a follow -up to my correspondence with Mike Ruddy, enclosed please find revised
draft Proffers for your collective review. To allow for some time to review them, by this
correspondence, I am asking if either or both of you have time to meet sometime tomorrow
afternoon (May 15)?
I apologize for the relatively short notice on this matter, but I understand from Mike
Ruddy that he would like to mail revised information to the Board members in their Friday, May
16 packets.
I
1
FRO %r RO1A1,AU6X[ti: POnJ OoI( E Roc 603, FRONT Ro\'a„ YIROIiI.♦ 23630,Ta[nw1[: (40) 635 -9315. F\cznnl,[: IilO) 675 9 31, E -xnR.: su T6Pn 6SSCO$$E<
FOR. I AOI1X[11: IOROS \I U\ S I NF [T, Sl:l " 3011, 3311 30, 1 o',PRO (703)152-2615, FA sOOL[: 1'7(11) 3534190, E-MAIL: 1'11OMAsO.LA Ops. \'[NLO% \l: r
Michael T. Ruddy, Deputy Director
Robert T. Mitchell, Esquire
May 14, 2008
Page 2
Thank you for your continued assistance and cooperation. I look forward to hearing from
you.
Very trul urs,
Thoina M re Lawson
TML:atd
cc: O -N Minerals (Chemstone) Company
REZONING
PROPERTY
RECORD OWNER:
APPLICANT:
PROJECT NAME:
ORIGINAL DATE
OF PROFFERS:
REVISION DATE(S):
PROPOSED PROFFER STATEMENT T
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 ")
O -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 April 18, 2008_ Mav 14, 200
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 which the decision has been affirmed on
appeal.
The headings of the proffers set forth below have been prepared for convenience or
reference only and shall not control or affect the meaning or be taken as an interpretation of any
provision of the proffers. The improvements proffered herein shall be provided at the time of
development of that portion of the Properties adjacent to or including the improvement or other
proffered requirement, unless otherwise specified herein. Any proffered conditions that would
prevent the Applicant from conforming with State and /or Federal regulations shall be considered
null and void. The term "Applicant" as referenced herein shall include within its meaning all
future owners and successors in interest. When used in these proffers, the "Generalized
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
incorporates drawings identified as Exhibits , as representations of its Generalized
Development Plan. The Applicant submits its operations and activities will be in general
conformance with 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 grid*
*This is not to be interpreted as a restriction against using power plants on the
Properties as necessary to support extractive mining activities.
2. Site Development
2.1 Properties' access via public secondary roads shall be limited to the existing
quarry entrance on McCune Road (Route 757). Access by vehicles needed for
periodic maintenance of the Properties shall not be limited.
2.2 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 general 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. The existing overburden stock pile on the southeast corner of the current
Middletown plant site shall be reduced in height to the greater of 30 feet or the
height of the adjacent tree line Oving to the cast) within 5 years of the approval of
the rezoning. PtMhermore_ the plantings- including but not limited to, the
descriptions of the plants to be installed on the berms are more specifically
described in the attached and incon)orated '`Exhibit ". 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 berm depicted on the
DRAFT
Phase I plat shall be installed within 10 years of the approval of the rezoning
berm depicted on the Phase II plat shall be installed no later than 10 years prior to
the commencement of mining north of Chapel Road.
3. Historic Resources
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 the Codar Creek Battlefield Foundation Inc. a
rec=?gFR -Zed- Kist {*r - as;14c-iati Ya aiRik- H- -greiu within one year of final rezoning.
jNOTE the a for ementi oned 8 acre historic rese pro perty is not to be i ncluded
in tltc pro pctty to be re/ oned_I
3.2 The Applicant shall complete a Phase I Archaeological Survey of the Properties
as depicted on the GDP within eighteen monthsofte-yeaf of final rezoning or prior
to any land disturbance of the portion of parcel 83 -A -109 and parcel 90 -A -23.
The Applicant may commence minino activities on a particular portion of the
Properties before the completion of the Phase 1 survey for all of the P roperties.
but under anv and all circumstances. no mininjk operations shall commence on
any portion of the Properties until after the Phase I Archeological Survey has been
completed on said portion of the Properties. Said survey shall locate, identify,
and comprehensively record all historic sites, buildings, structures, and objects on
the parcels. Such survey shall be conducted in accordance with the guidelines for
a Phase 1 Survey as defined in the Virginia Department of Historic Resources
"GUIDELINES FOR CONDUCTING CULTURAL RESOURCE SURVEY IN
VIRGINIA - Chapter 7: Guidelines for Archaeological Investigations in
Virginia," 1999 (Rev. Jan. 2003).
3.3 Two cemeteries have been identified on the Properties. The first cemetery is
located adjacent to Chapel Road and is in an area that is not designated for mining
and is also outside of the berming area. That cemetery is currently undergoing a
historical restoration. After the historical restoration, the Applicant will follow
the recommendations of the Applicant's historian.
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 will
provide continued maintenance and have use of same.
4. Rights to Water Supply
4.1 The Applicant shall guarantee the Frederick County Sanitation Authority (FCSA)
rights to the water resources available on the Properties in accordance with the
existing agreements between the Applicant and FCSA.
5. Ground Water
5.1 The Applicant shall install a minimum of three monitoring wells to effectively
establish and monitor the groundwater level in order to avoid detrimental impacts
to surrounding properties. Said wells shall be installed prior to any land
disturbance of the portion of the Properties identified as parcel 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. The exact location of the monitoring wells is
M eted on the attached and incorporated plats. which are identi a s "Exhib
5.2 Subject to and consistent with the provisions of paragraph 9.2, the Applicant shall
remediate any adverse impacts to wells located on surrounding properties caused
by mining operations on the Properties. Costs associated with any required
remediation shall be borne by the Applicant.
Furthermore, the Applicant agrees to participate in a pre -blast survey and well
monitoring survey, as further described herein. The intent of the aforementioned
surveys is to provide a mechanism to remediate any adverse impacts to wells
and /or structures, which are caused by the mining operations on the Properties.
6. Dust Control
6.1 Dust from drills, 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. Blastine 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 (DMM) 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's current number oi'truck loads leavin�> the site on a daily bas is
approximateiv 0 and the Applicant has had higher number of recorded truck
loads leavi t he p lant toa total o f 114 truck loads pe r day. - The Applicant in its
p offer, i L oreein g to r estrict truck traffic t the Pro perties to 86 truck lo p er
day averaged over the prior 30 days. but intends to also have a ability to increase
the number of truck loads in the event of an emercy or circumstance >, which
could be cause b y issues dr iven by Applicant's custorners, supplie and /or
carri I, xamples of such shall incl but are not limited to, an interruptio of
rail service to the site and"or any sites that are serviced by rail from Applicant's
Properties and/Or anv other interruption of the ability to deliver materials at the
App licant's s ite or anv other sites whi are owne controlled, or bs business
relatio with A pplicant s_ site. To that en d and in any_
circumstance. =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 truck loads will be
regulated by the Applicant and its successors and /or assigns. A record of the
actual number of truck loads per day shall be kept current (and maintained for one
year) by the Applicant at its scale house office. Said record shall be made
available in a form which confirms the number of trips and the form will be
produced to Frederick County officials upon demand with reasonable notice. I
Applicant proffers there will be no truck loads from the Properties on Sundays
and the hours o f truck loading on Sa tUrdays will be no later than 7:00 p .m. The
Ap plicant furthe p roffer s it will instruct a ll truckers as to the properroutc of
travel from the Properries to Route 7 1, wlsich shall exclude both Belle Grove rind
Chapel Roads. Additionally. the Applicant will supply truc]<ers w ith Upro riate
operating Guideline for travel within the e on7ntunrty.
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 firm, which will investigate and
document the pre -blast conditions of the participants' residences and /or
outbuildings. The Applicant and its successors a nd assign Ni-11-- all
citize d mo nitor the
tax roles for Frederick County on an annual basis in order to contact anv citizens
who have recently purchased the aforementi property. This contact will be
made by Ap plicant ruin its successor and as signs to invite citizen who hLive
property within 1.500 feet of the Properties' boundaries to partici ate i the pre -
blast surveys. Contact will be made by rsistered return - receipt letters, mailed
annualhr from the time of the rezoning. All citizens who have property within
i. ,K 1
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 engineering firm to visit the party's residence to document
and survey the pre -blast condition of the party's residences /outbuildings
f'gllowing_ t� roccdures s fo rth in the atta and inc�
If the property owner a «rccs to paiticatc. t Fhe Applicant's and /or its
engineering firm shall--further b -ve— the- F visit and inspect the party's
residences /outbuildings to monitor the condition of the same. A record of those
pre -blast conditions will be kept by the independent engineering firm with copies
retained by the Applicant and the participating property owner. In the event of a
change in condition, which is alleged by the participating property owner as a
result of mining operations, the engineering firm will then conduct a follow -up
visit and investigation and use the pre -blast information as a control and basis for
subsequent analysis. Said analysis shall be used to determine the cause of any
negative change in condition. If it is determined there is a change in condition in
the residences /outbuildings, which has been caused by the Applicant's mining
activities on the Properties, then the Applicant agrees to remediate and /or repair
said negative change in condition to restore it to its status prior to blasting
operations. In addition, the Applicant agrees to establish seismic monitoring of
the proposed quarry site to monitor all blasting activities and keep records of said
seismic monitoring as required by the 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 or h Aroeeologist which will
investigate and document the pre - mining conditions of the participants' wells.
The . a nd its succe and assigns will conta all citi zens who h ave
propertv 1.5 00 feet of t he Pro perties' boundaries, and mon - itor the t roles
for Frederick County on an annual basis in order to contact any citizens who have
recently purchased the aforementioned property. This contact will be made by
/ypplj it s s uccessor and a ssigns t o invite citizens who have propell
within 1,500 feet of the Properties' boundaries to articipate in the well
monitorin +7 surveys. Contact will be m ade by sending annually registered return -
receipt letters. All citizens who have property located within 1,500 feet of the
Properties' boundaries can and are encouraged to participate in the survey by
eomac the�� 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 fh(lowingthe proccdures set
forth in t he a ttached a nd inc orporate d Exhibit " . A record of these pre- mining
conditions will be kept by the independent well drilling firm, with copies retained
by the Applicant and the participating property owner. In the event a change of
condition is alleged by the property owner as a result of mining operations, the
Applicant will provide an interim replacement water supply as necessary to
supply the property owner with water. The well drilling firm will then conduct a
follow -up visit and investigation and use pre -blast information as a control and
basis for subsequent analysis. If it is determined that the status of the neighboring
u
property owner's well has deteriorated from the condition it was in at the time of
the pre -blast survey, then the Applicant agrees to restore the well to its condition
existing at the time of the pre -blast survey and /or provide the adjoining property
owner a replacement well of the same condition (or better) of that which existed
at that time of the pre -blast survey.
9.3 In addition to the above, the Applicant agrees to maintain in force an insurance
policy or other sufficient security for the period of time covering the active
mining operations on the Properties and to maintain in effect for a period of one
year from the date of cessation of said mining operations, and to cover the costs of
any remediation and /or repair, which is required pursuant to the terms of sections
9.1 and 9.2 above. Said policy or surety shall be in the amount of no less than
One Million and 00 /100 Dollars ($1,000,000.00) per occurrence.
10. Reclamation
10.1 It is intended that pursuant to the terms of the agreement reached with the FCSA
that at the time of cessation of mining activities, the Properties' quarry pits shall
be used by the FCSA as water reservoirs. The control of the water levels in the
quarry pits shall be handed over to the FCSA. It is intended that the quarry pits at
that time will contain quantities of water monitored and directed by the FCSA,
and which will be conducive to the general betterment of natural habitat.
11. Noise Abatement
11.1 Operations on the Properties will not exceed the 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 affixed lighting structures above - ground on the berms other than
as may be required for or provided by regulations that affect the plant operations,
including but not limited to, Mine Safety Health Administration ( "MSHA "),
Virginia Department of Mines and Minerals and Energy ( "DMME "), and any
other governmental or regulatory body that oversees mining operations.
Lighting used for devices or machines that convey materials or for pit crushing
facilities and other mining activities is permitted. Conveying and pit crushing
facilities shall also be interpreted as including such other devices or activities that
perform similar or related functions that may come into use and /or existence at
some time in the future while the extractive mining use is still in effect on the
Properties. In addition to the above all lighting will he installed in such a manner
that there will be no spillover beyond any' pro line of tile canl onto
adjacent ro ertcs n owned by the A pplicant,
13. Air Permit
F
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.
14. Environment
14.1 In addition to compliance with the VPDES water discharge permit already in
place, the Applicant agrees to work with a recognized environmental entity of the
Applicant's choosing during its operations to ensure that the water emissions from
water flowing from the quarry operations on the Properties is of a quality
consistent with the water quality in Cedar Creek so as to maintain an environment
conducive to natural habitats. No additional water discharge points will be added.
14.2 The Applicant agrees that all areas currently in trees on property owned by the
Applicant, which is outside of the rezoned Properties, shall be maintained using
best management practices.
14.3 The Applicant proffers to keep its mining operations at least 200 feet from the
edge of Cedar Creek.
15. Phasine
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 parcel 23. Mining in parcel 23 shall occur from the time period
commencing with the approval of the rezoning for a period of time which is
estimated to be twenty years.
For the newly zoned area, which is north of the existing EM zoned property, and
south of Chapel Road, mining activities will commence no earlier than ten years
from the date that the rezoning referenced herein is approved.
For the newly zoned area, which lies north of Chapel Road, mining will
commence no earlier than twenty years from the date that the rezoning referenced
herein is approved.
SIGNATURES APPEAR ON THE FOLLOWING PAGES
Respectfully submitted,
Its:
O -N MINERALS (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:
Registration number: _
M FILE copy
COUNTY of FREDERICK
Department of Planning and Development
540/665 -5651
FAX: 540/665 -6395
May 9, 2008
Mr. Thomas Moore Lawson
Lawson and.Silek, P.L.C.
120 Exeter Drive, Suite 200
Winchester. VA 22604
RE: Rezoning 903 -06; O -N Minerals Chemstone Company
Response to Letter Dated May 8, 2008
Dear Tv:
As always, Staff is available to meet with you and your client to discuss your rezoning
application and any revisions you have made to the application. We look forward to
seeing what you have proposed to address the issues associated with, and the impacts of,
your request. It is important that your revisions, in particular revisions to the Proffer
Statement, are provided in a timely manner. This will afford Bob Mitchell and me the
opportunity to review and respond appropriately and will enable us to schedule a time to
meet with you.
Let me take this opportunity to reinforce the many comments that have been provided to
you previously by Staff and the County Attorney. Most recently, these comments were
compiled in the staff report and agenda prepared for the Board of Supervisors meeting
held on April 23, 2008, which you have a copy of. These comments remain valid, seek to
ensure that the impacts associated with this rezoning request have been fully addressed,
and were summarized into the following points.
1) Address the Potential impacts associated with more intensive use of properties
and the scope of the use.
2) Address the recommendations of the Historic Resources Advisory Board,
particularly regarding view shed coordination and mitigation and Cultural
Resource Surveys
3) Address the potential groundwater, dust, and blasting and view shed impacts on
adjacent properties.
4) Address the transportation impacts, particularly within the Town of Middletown.
Please be aware that Staff's cut -off for preparing the Staff Report for this application for
the May 28, 2008 Board of Supervisors meeting is Friday, May 16, 2008. Any changes to
your application should be submitted by this date to enable the review and incorporation
into the Board's agenda.
107 North Kent Street, Suite 202 • Winchester, Virginia 22601 -5000
Page 2
Mr. Thomas Moore Lawson
Re: R703 -06- Response to Letter Dated 05/08/08
May 9, 2008
It continues to be our hope that the many comments offered by Staff, the County
Attorney, and the Board of Supervisors are fully addressed.
Please feel free to contact me if you have any questions.
Sincerely,
/ Michael T. Ruddy, AICP
Deputy Director
MTR/dlw
05/08/2008 10:00 FAX
( I
MAY 8 2008
LAWS ®N AND S ILEK, P.L.C.
120 EXETER DRty& Su1TE 200
Posr OEncE Box 2760
WINCHESTER, VA 22600
TELEPHONE: (540) 665 -0050
VACStMILE:(540) 7224051
FACSIMILE COVER SHEET
Date: May 8. 2008
To: Michael T. Ruddy, Deputy Director
Planning and Development
Fax Number: 540 -665 -6395
From: Thomas Moore Lawson, Esquire
Our File No: 462.006
Number of pages
including cover: 2
Message: Please see attached.
- 1
a 001 /002
The information contained in this facsimile message is information intended only for the use of
the individual or entity named above, and may be attomey /client privileged and confidential. If
the reader of this message is not the intended recipient, you are hereby notified that any
dissemination, distribution or copying of this communication is strictly prohibited. If you have
received this communication in error, please immediately notify us by telephone and return the
original message to us at the above address via the U-S. Postal Service. Thank you.
MOO ROYAL ADDREM: Post 0"WI DOE 002, IROnr ROYA4 3'W OIN4 2 1630. TELtW0NE: IN010.JCa IC F�rA�.1- ( mow,.: tll2K1/$LYIKIOXMtcr.EON
FArzl.t'DDQE ; IOBOSMM,Yl9l[T, Sinn 20q FwVV.ax,V1¢cuu llo30. rut1,IMe:(]O]1]51 -2f I5. f�CHMLLE!110J1 JSaN1Y0- Pn4�ILi TNOMnWIfcTgxnMtl)nn.nlT
..,/08/2008 10:01 FAX
LAWS ®N AND SILEK, P.L.C.
120 EXETER DRIVE, SUITE 200
POST OFFICE 601( 2700
WINCHESTER, VA 22600
TELEPHONE= (540)6654050
FACSInHLE:(540) 7224051
a 002/002
THOMAS MOOSE LAWSON • iLAW'SON(n11 iPl �('.COM
May 8, 2008
Michael T. Ruddy, Deputy Director
Planning and Development
County of Frederick
107 North Kent Street, 2 " Floor
Winchester, VA 22601
VIA FACSIMILE AND U.S. MAIL
Dear Mike:
Re: 0 -N Minerals (Chemstone) Company
Our File No. 462.006
REZ #03 -06
During the Board of Supervisors' meeting, Staff was asked to provide
comments /suggestion for revisions to the proffers. I am also, on my own, working on revising
the proffers to respond to comments. Please send me your comments /suggestions at your earliest
convenience so I can include those in my draft. Once I have those revisions in hand, I would like
\\ to meet with you and Bob Mitchell to discuss the same.
\ Thank you for your continued assistance and cooperation. I look forward to hearing from
Very truly yours,
J U nine Aua t lif t
\ Thomas Moore Lawson
le) Company
s FOgvenNr NOYnL. vTACIMn S16M,Tu.rnO„u -wI5. FACSIMILE: Ulal 914"zI E.MYV ELLEKI VKXCONNECTAOM
tin nl SO4 FuPTA]L Vlvco-u zzoTE,TEUPnoNa: (7xJ1 J9 161l, FeLLMnif pml JSZ - 919x, E - MAIL: TAQw O.L & *t NX.AW70N.NET
___ _--I
LAWSON AND SILEK, P.L.C.
120 EXETER DRIVE, SUI'T'E 200
POST OFFICE BOX 2740
WINCIIES I ER, VX 22604
'I ELEPHONE: (540) 665 -0050
FACSIMILE: (540) 7224051
May 8, 2008
Michael T. Ruddy, Deputy Director
Planning and Development
County of Frederick
107 North Kent Street, 2 " Floor
Winchester. VA 22601
MAY g 2008
L_
THOMAS MOORE L oI • I LANNSONnOLSP1,C.COM
Re: O -N Minerals (Chemstone) Company
Our File No. 462.006
REZ #03 -06
VIA FACSIMILE AND U.S. MAIL
Dear Mike:
During the Board of Supervisors' meeting, Staff was asked to provide
comments /suggestion for revisions to the proffers. I am also, on my own, working on revising
the proffers to respond to comments. Please send me your comments /suggestions at your earliest
convenience so I can include those in my draft. Once I have those revisions in hand, I would Like
to meet with you and Bob Mitchell to discuss the same.
Thank you for your continued assistance and cooperation. I look forward to hearing from
you shortly.
Very truly yours,
,Jhww tftu AWWJAV
Thomas Moore Lawson
TML:atd
cc: O -N Minerals (Chemstone) Company
F9.1I R111 I.- %IIIIRI'.55: POST I)FPII'E RIIN 60L FRONT R"YAI., VIRI:IYIA 22630,'1 SLlPIIO,I'F:: 154 01 635 -9415, FACSINII.L: (540) 635- 9421 , F- M111.: .SILEKJ a LI N'.N( O.NNO'TCONI
FAIRP.\X ADDRRSS: 10805 M UN STREET, SIIPI E 200, FAIRIAN, VIRONIA 22030, TLI.EPHONE: (703) 352_2615, I ACSI,NIILE: (703) 352 -4190, E -MAT I.: TIIO I�sFFLAN SO \' i OtizoM1_N'ET
HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
HAND - DELIVERED
Michael T. Ruddy, AICP
Deputy Director
Frederick County Department of Planning &
Development
107 North Kent Street
Winchester, VA 22601
APR 4 - nn
PLEASE REPLY TO
P. O. Box 848
WINCHESTER. VIRGINIA 22604-0848
Re: Chemstone -- Middletown [O.M. Minerals (Chemstone) Company]
Proposed Proffer Statement
Dear Mike:
I have reviewed the above - referenced proposed Proffer Statement with a
revision date of March 18, 2008. (By letter dated March 27, 2006, I 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.
A oAR HERSHIP OF PROFESSIONAL COPPORATONS
ATTORNEYS AT LAW
WILBUR C.
HALL (1892
S 307 EAST MARKET STREET 9 EAST BOSCAWEN STREET
THOMAS V.
MONAHAN (1924-1999)
LEE5BURG, VIRGINIA WINCHESTER, VIRGINIA
SAMUEL D.
ENGLE
0, LELAND
MAHAN
TELEPHONE 703 777 1 050 TELEPHONE 540552'3200
ROBERT T.
MITCHELL, JR.
FAX 54O- ss2 -43o4
JAMES A.
KLENKAR
E -MAIL .,Iyers @h.ft.o ahen4om
STEVEN F.
JACKSON
April 4, 2000
HAND - DELIVERED
Michael T. Ruddy, AICP
Deputy Director
Frederick County Department of Planning &
Development
107 North Kent Street
Winchester, VA 22601
APR 4 - nn
PLEASE REPLY TO
P. O. Box 848
WINCHESTER. VIRGINIA 22604-0848
Re: Chemstone -- Middletown [O.M. Minerals (Chemstone) Company]
Proposed Proffer Statement
Dear Mike:
I have reviewed the above - referenced proposed Proffer Statement with a
revision date of March 18, 2008. (By letter dated March 27, 2006, I 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.
HALL, MONAHAN, ENGLE, MMAHAN & 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
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. h1 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."
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 aprovision 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.
yours,
T. Mitchell, Jr.
RTM /ks
HALL, MONAHAN, ENGLE, MAHAN & MITCHELL
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
C "
PLEASE REPLY TO
P. O. BOX 648
WINCHESTER, VIRGINIA 22604-0646
Re: Chemstone - Middletown (O -N Minerals Chemstone Company)
Proposed Proffer Statement
Dear Mike:
I 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.
MONAH AN (1924 -1999)
7 6 307 EAST HARNEf STREET
9 EAST BOSCAWEN STREET
SAMUEL D.
ENGLE
LEESBURG, VIRGINIA
WINCHESTER, VIRGINIA
O. LELAND
MAHAN
TELEPHONE 703 777-1050
TELEPHONE 540682-3200
ROBERT T.
MITCHELL, JR.
FAx 54o-662 -4304
JAMES A.
KLENKAR
E-MAIL lawyeM@hallmonahen.com
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
C "
PLEASE REPLY TO
P. O. BOX 648
WINCHESTER, VIRGINIA 22604-0646
Re: Chemstone - Middletown (O -N Minerals Chemstone Company)
Proposed Proffer Statement
Dear Mike:
I 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 1 (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
permitted 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.
Y .
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 & 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 1 (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
permitted 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 & 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.
y yours,
Robert T. Mi
RTM /ks
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 pen-nit.
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 continents 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.
RTM /ks