Loading...
HomeMy WebLinkAbout03-06 Comment B Mitchell Correspondence (2)May. 21 2008 11:33AM HALL, MONAHAN, ENGLE, MAHAI A PARTNERSHIP OF PROFESSIONAL CORP( ATTORNEYS AT LAW WILBUR C. HALL (1892 -1972) THOMAS V. MONAHAN (1929 -1999) SAMUEL D. ENGLE O. LELAND MAHAN ROBERT T. MITCHELL, JR. JAMES A. KLENKAR STEVEN F. JACKSON 7@.307 EASTMARKETSTREET LEESBVRG,VIRGINIA TELEPHONEi 103 -077 -1050 FAX: 703-7714113 No. 0219 °. 1 C �I. QA"- F. i i i I FAX TRANSMITTAL DATE: 05/22/08 TRANSMIT TO; FROM: PERSONAL AND CONFIDENTIAL Mike Ruddy Location: 6 Fax No.: 65 -6395 Bob Mitchell Location: Winchester, Virginia Fax No,; (540) 662 -4304 MESSAGE; Copy of Memorandum for Conference on M attached. 21, 2008 TOTAL NUMBER OF PAGES (INCLUDING THIS PAGE); 2 May. 21. 2008 11:33AM No. 0219 P. 2 HALL, MONAHAN, ENGLE, MAHAN & MITCHELL A AIRfNER HIP OF PROFE4410NAL (, IkPOq TIONS WILBUR C. HALL (1892 -1972) ATTORNEYS AT LAW THOMAS V. MONAHAN (1924-1999, T E 307 EAST H KEf 3 EET 9 EAST BOSGAWEN STREET SAMUEL 0. ENGLE LSCSEUNG. NROINIA WINCHESTER, VIRGINIA O. LELANO MAHAN TELEPHONE 703b77'IOSO TELBPHONC 6406629200 ROBERT T. MITCHELL, JR. FAX 4406a2�304 JAMES A. KLENKAR C - MAIL IaN MBIUllme� STEVEN F. JACKSON May 21, 2008 VIA FAX 722 -4051 Thomas Moore Lawson, Esquire Lawson and Silek, P,L.C. P. O. Box 2740 Winchester, VA 22064 Re: Chemstone Rezoning Dear Ty: PLEASE REPLY TO: R O. Box 848 WINCHESTER, VIRGINIA 22604 -0848 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 I r MEMORANDUM FOR CONFERENCE DRAFT ON MAY 21, 2008 With respect to my comments 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 beginning 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 1 ", 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 benns 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 Benn D) depicted on the Phase II Plan of the GDP shall be installed no later than 10 years prior to the corrunencement 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 mariner 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 limitation, 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 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 malting 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. rd " 1 I have been provided with an excerpt from the Lease to Chemstone Corporation of Tax Parcel 90 -A -2 on which a berm (Bern 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 L AWSON AND SI LEK, P.L.C. 120 ESE 'I Lit DRIVE, SUITE 200 POSF OFFICE Bar 2740 WINCHESTER,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 THOnLts MOORL LAM 'SUN • ----- N(U�1 tiPLGCOJt 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. 1 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 FRo,%i Roi 'It. ADDRESS.POST'OkkICE Box 602, FI< oNTROYIL ,M'IRQPIA226311,1ELEPRORE:(541 1) 63 5- 9415, FA( Irm.e(5") 61594 _1,R -MA U.: vIC6Jm LINimNNeCI CON FAIR111AO11 E11: 106115 M III ST.EE.SOO, 200, FAIRFAX,VIR(:INI A 32030,TE- PRoNI_:(703) 352 - 1615, FACS0111 L:(703) 3524190, E-MAIL: THOM1 UI,AMIONn VURIZONAFr REZONING PROPERTY RECORD OWNER: APPLICANT: PROJECT NAME: ORIGINAL DATE OF PROFFERS: REVISION DATE(S): The undersi 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 May 2 February 8, 2006 April 18, 2008_ August 28, 2006 Mw, 14.2008 that the use and of the "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 2.1 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. Development Plan," shall refer to the plan entitled "Generalized Development Plan, O -N 2._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 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 €treater of 30 feet or the height of the adjacent tree line (hying to the cast) within 5 years of the approval of the rezoning. Furthermore. the plantings, including but not limited to, the descriptions of the plants to he installed on the beans are more specifically described in the attached and incorporated "Exhibit Said berms shall be limited to a ma height of 30 feet and be of a minimum height of 10 feet_ and th -W s shall be biiilt•as sct;foith m,tlic,UDP 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 3.1 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. A copy of said restrictions are attached'aitd mcorporated ash "L'xhJbii3 ": Said reserve land shall be dedicated to the Cedar Creek Battlefield Foundation, Inc. a recognized 1 ri asso6atien ' ^ ^ wt o ye_a-- ii0 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 Applicant shall complete a Phase I Archaeological Survey of the- particular an _ The Applicant may commence mining activities on a particular portion of the Properties before the completion of the Phase I survey for all of the 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 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 mVrov e epen said right -of- way so that it can be used for access by the descendan s telati' of those in the r � t 'a han ^ 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 exactiloc ari oii`t f the'muiorin =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 strictures, which are caused by the mining operations on the Properties. 6. Dust Control 6.1 Dust from drills, -, of muck piles, material handling, screens, crushers, conveyors, feeders, hoppers, stockpiles, load -outs, and traffic areas shall be controlled by wet suppression or equivalent, and controlled by and consistent with the terms of the Department of Environmental Quality 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 6 and _the _Applica has had higher num bers o recorded truck loads leaving the plant to a total off lq truck loads per day. The Applicant, in its proffer, is a to restrict truck traffic to the Properties to 86 truck loads per day averaged over the prior 30 days, but intends to also have an ability to increase the number of truck loads in the event of an emereencv or circumstances. which could be caus by issues driven b y�plicant 's custo mers. sp liers, and /or earners. Examples of such shall include. but are not limited to_ an interruption of rail service to the site and/or anv sites that are serviced by rail from Applicant's Properties and /or any other interruption of the ability to delive materials at th Applicant's site or any other sites which are owned. controlled. or by business relationship connected ,vith Applicant's site To that end and in my 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. The .Ap plicant proffers there will be no truck loads from the Properties on Sundays and the hours ot'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 assicns will contact all citi who ha%c_ -ro erty - w thi 1,50 of th z_Properties and moni the tar roles for F rederick County on an auni basi in order to contact any citize avho have iecentl� purchased the afo�emention d property fhis onlact will be made by Applicant and its successor and assigns to invite citizens who have rU1 ertti }with 1,500 feet of the Properties' boundaries to rp trti p ale in t he pre- blast su e vs. Contac wi ll be m ade ba teo r et u rn - rece 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 f ollowing the procedures set forth in the attached and incorporated "Exhibit If the p row owne a grees t_op articipate, tThe Applicant's and /or its engineering firm shall furiisE.e g`t a 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 ydroaeolonist, which will investigate and document the pre- mining conditions of the participants' wells. Che Applicant and its successors and assigns will contact all citizens evho have property within 1 500 feet of the Properties' boundaries and monitor the tax roles _for Frederic Co unly on an annu basis in order to contact any citizens who have rece p the aforementioned prop ert I'llis contact will he made by Applicant and its successor and tssi�ns to invite citizens aa}to have property within 1,500 feet of the Properties' boundaries to participate in the well monitgriha �uryeys_C will be ma de by_se annu ally re gistere d retui 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 eexta�Etr ie and - scheduling a mutually agreeable time for the independent well drilling firm to visit the party's residence to document and survey the pre -blast condition of the party's well following the procedures set forth in the attached and incorporated `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 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 additio to_t above. all lig hting , will he i nstalled in s uch a manner that there will be no s�llover beyond any Property line of the applicant onto ad ia� cent 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. 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, In Its: IS 1 The Applicant agrees that mining activities on the Properties shall occur with the following phasing and as sei follh'c n''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 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 Page ] of I 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 @lsplc.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 1 Virus Database: 269.23.2111455 - Release Date: 5/19/2008 5'.04 PM 5/20/2008 HALL, MONAHAN, ENGLE, MAHAN & MITCHELL ATTORNEYS AT LAW WILBUR C. HALL (1892 -1972) THOMAS V. MONAHAN (1924 -1999) 7 A 301 EAST MARKET STREET 9 EAST BOSCAWEN STREET SAMUEL D. ENGLE LEESBURG, VIRGINIA WINCHESTER. VIRGINIA 0. LELAND MAHAN TELEPHONE 703 -7I7 1050 TELEPHONE 540-6623200 ROBERT T. MITCHELL, JR. FAX 540882 4304 JAMES A. KLENKAR E-MAIL tawyam(ghallmonahanxom STEVEN F JACKSON May 19, 2 00 1 � `.td SF3TJ£' +:.ia y. Nl:, HAND - DELIVERED Michael T. Ruddy, AICP Deputy Director Frederick County Department of Planning & Development 107 North Kent Street Winchester, VA 22601 PLEASE REPLY TO: P. O. Box 848 WINCHESTER, VIRGINIA 22604 -0848 Re: Chemstone -- Middletown [O.M. Minerals (Chemstone) Company] Proposed Proffer Statement -- Updated Review Dear Mike: I have received a copy of 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. �F 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. ly yours, Robert T. Mitchell, RTM /ks Enclosure CC: Thomas Moore Lawson, Esquire, via fax COMMENTS ON MAY 14, 2008 REVISED PROFFER STATEMENT General: 1. I would recommend that the "PROPERTY" heading of the Proposed Proffer Statement, in referring to the Tax Map Parcels, be revised to state as follows: "Tax Map Parcels 83 -A -109 ( "Parcel 109 ") and 90 -A -23 ( "Parcel 23 ") (collectively, the "Properties "). In addition, the Proposed Proffer Statement should be consistent throughout in the manner in which it refers to the respective parcels. 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 11 Plan, Phase III Plan and Phase IV Plan; and ten viewshed plats titled Viewshed IA, Viewshed 113, Viewshed 2, Viewshed 3, Viewshed 4A, Viewshed 413, Viewshed 5A, Viewshed 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, 1 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 conformitywith 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 commence on Parcel 23 immediately (See Proffer 15. 1), but that the berm would not be created until up to 10 years later. Further, the proffer makes no reference to the Viewshed plats which are a part of the GDP and which presumably establish the height and location of the berm or berms. Therefore, it is my opinion that this proffer needs to be amended to address the foregoing issues. 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 information 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. I recommend 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) (1 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 adverse impacts to wells to those properties which opted for a pre - mining survey under Proffer 9.2. It is my recommendation that that phrase be deleted from the beginning of Proffer 5.2. 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 circa nstances" exception to the truck load limits would appear to be very difficult for the County to document in enforcing thisproffer. 3. The last sentence of this revised proffer is so vague as to be unenforceable as a proffer. Proffer 9.1 (Pre -Blast Surveys - Buildings) (I was not provided with a copy of the exhibit referenced in this revised proffer. The exhibit must be included with the Proffer Statement, and it should be reviewed by staff.) Proffer 9.2 (Pre- Mining Surveys- Wells) I was provided with two documents which would seem to apply to this revised proffer, although only one exhibit is referenced in the proffer. One document appears to be the procedures for the survey, and would appear to be the document referenced in the proffer as an exhibit. The second document is titled "Well Guarantee Agreement ". 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 i' 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. In any event, given the long term of prospective mining operations, the policy limits should be subject to an escalator, perhaps every five years. This proffer should also contain a provision that the County will annually be provided a certificate of insurance from the insurance carrier. 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. 6 LAWSON AND SILEK, P.L.C. 120 EXETER DRIT'E. $ui rE 200 POST OFFICE Box 2740 WINCH ESTER, VA 22604 TELEPHONE: (540) 665 -0050 FACSIMILE: (540) 7224051 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 ►I aY 15 20� THOMAS MOORE LAN%SON • I LAWSON/a�LSPLC.CON1 Re: O -N Minerals (Chemstone) Company Our File No. 462.006 RF-,Z #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. FRO] I R 1. ADDRESS 1`1 +I Ore if a Bar 602, FRO6T ROYAL.N1ROINIA 23630,TELEPBONE:( 540)635 - 9415, FArsnm, E:(5311) 635- 9421, P' -1)e D.: cu e6]/a LA YYCO6NECECOM F%IRP_1l ADDRESS: l ON05 MAIN STREET, StITE200, 1 A1RPA%, VIRGIRIA 22030 FELl:PIIO11::(703)"2 -2615, FACCI1111 F: (703) 3524196, E -MAIL: THOM O.LA \ISD\-(_\ERMO \NLE 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, Thoma 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. 2008 The undersigned hereby proffers that the use and development of the subject properties ( "Properties "), as described above, shall be in strict conformance with the following conditions, which shall supersede all other proffers on the Properties that may have been made prior hereto. In the event that the above - referenced EM conditional rezoning is not granted as applied for by the applicant ( "Applicant "), these proffers shall be deemed withdrawn and shall be null and void. Further, these proffers are contingent upon final rezoning of the Properties with "final rezoning" defined as that rezoning which is in effect on the day following the last day upon which the Frederick County Board of Supervisors' (the "Board ") decision granting the rezoning may be contested in the appropriate court. If the Board's decision is contested, and the Applicant elects not to submit development plans until such contest is resolved, the term rezoning shall include the day following entry of a final court order affirming the decision of the Board which has not been appealed, or, if appealed, the day following 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 exi sting_ ov erburden st ock oile on the s outheast corner of the current Middlet - plant S ite sha be reduced in h eight to tale greate o f >0 feet or the height of the adjacent tree 1 ine (�he e within 5 vears ol'the approval of the rezoning. Pwthermore, the plantings. including but not Iimited to, the descriptions of the plants to be install on the berms are more specifically described in t attached and incorporated " L;xhibit".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 Phase I plat shall be installed within 10 years of the approval of the re ®i 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 Cedar Creek Battlefield Foundation, Inc. a —11 • — ed hisiorie l association and ,or group within one year of final rezoning. [NOTE: the aforementioned 8 acre historic reserve property is not to be included in t11e .ro e rty to he rezo ned.j . 3.2 The Applicant shall complete a Phase I Archaeological Survey of the Properties as depicted on the GDP within eighteen months -year 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 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 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 depicted on t attache and_ipco which are identified as `'Exhibit 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, sh© muck piles, material handling, screens, crushers, conveyors, feeders, hoppers, stockpiles, load -outs, and traffic areas shall be controlled by wet suppression or equivalent, and controlled by and consistent with the terms of the Department of Environmental Quality 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. Traffic 8.1 The Applicant's current number of truck loads leaving the site on a daily basis is approximately 63 anti the Applicant has had higher numbers of 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 avcraged over the prior 30 days. but intends to also have an ability to increase the number of truck loads in the event of an emergency or circumstances, which could be caused by issues driven by Applicant's customers. suppliers, and /or carrie Exam ples o such shall include. but are not limite to, an interruption of rail service to the site and /or amp sites that are serviced by rail from Applicant's Properties and /or any othcr interruption of the ability to deliver materials at the Applicant's site or anv other sites which are owned, controlled- or by business relationshi .>� ected__with__ Applicant _s site, _Totthat end,_ and in anv circumstance. =4'the Applicant agrees to restrict truck traffic to the Properties to a maximum of 200 truck loads per day averaged over the prior 30 days through the scale house hauling mined materials on and /or off the proposed quarry site from the existing quarry entrance. The maximum number of truck loads will be regulated by the Applicant and its successors and /or assigns. A record of the actual number of truck loads per day shall be kept current (and maintained for one year) by the Applicant at its scale house office. Said record shall be made available in a form which confirms the number of trips and the form will be produced to Frederick County officials upon demand with reasonable notice. The Applicant proffers there will be no truck loads from the Properties on Sundays and the hours of truck loadin( on Saturdays will be no later than 7:00 p.m. Ilse Applicant further proffers it will instruct all truck as to - t - h e proper route of travel from the Properties to Route 11. which shall exclude boh Belle Grove and Chapel Roads. Additionally. the Applicant will supplV truckers with appropriate operating guidelines for travel within the comnwnitZ. 9. Pre -Blast Survevs 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 property within 1.500 feet of the Properties, and monitor the tax roles for Frederick County on an annual basis in order to contact anv citizens who have recentiv purchased the aforementioned property. This contact will be made by Applicant and its successor and assigns to invite citizens who have property within 1.500 feet of the 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 a 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 follo t he proce set f orth in the attached and in corporated '`Exhibit If the property owner agrees to wadi ipate. i The Applicant's and /or its engineering firm shall - €tx =tom Irate teight � 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 hvdrooeologis which will investigate and document the pre- mining conditions of the participants' wells. The Applican and its succe ssors a nd assigns will contact all ci tizens who- hang u pr oerty within 1,500 fee of the Properuc bo undaries, and monito the tax roles for f-rederick an County on an nual hasis in order to contact any citizens who have recently purchased the aforementioned property. This contact will be made by Applicant an its successor and assigns to invite citizens "ho have _property_ within 1,500 feet of the Properties' boundaries to parti cipate in the well monitoring surveys. Contact will be made br 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 onto ha ^pp;; , - ant—artd— 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 procedures set forth_ in the attached and incorporated L xhibit__ °. 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 F " ° 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. Li htin 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 lightinv will he installed in such a manner that there will be no spillover beyond anv property line of t Applicant onto a I acent properties not o wned by t he Applicant . 13. Air Permit AFT 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. Phasing 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: FIE COPY COUNTY of FREDERICK I May 9, 2008 Mr. Thomas Moore Lawson Lawson and,Silek, P.L.C. 120 Exeter Drive, Suite 200 Winchester, VA 22604 Department of Planning and Development 540/665 -5651 FAX: 540/665-6395 RE: Rezoning #03 -06; O -N Minerals Chemstone Company Response to Letter Dated May 8, 2008 Dear Ty: 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: RZ03 -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 MAY 8 1008 LAWS ®N AND SIL/EK, P.L.C. 120 EXETER DRuv& SUITE 200 POST OFFICE BOX 2740 WINCHESTER, VA 22604 TELEPHONE: (540) 665 -0050 FACSIMILE: (540) 7=4051 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. Z 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 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 via the U -S. Postal Service. Thank you. Vlonr RoVnLA0VRM: PM O"ICF BOX 602, MONT ROYAL Vwo1NIA 1(630. TFLEFIronL (EIOI63Ca15, FARINm): (540105 -9411, L' nuu 6MXJQLVAKOONXECT NM PA.,.. A....; 10005 MAIN 9IIIR,SVrt[30G,FAMPAX. Vlvclnu 12CULTUVI40NE f/ 0)I 351 -1615. FACE E! (1031 JM4190.& MAIL: TNOMAFQI�Ap'1/IN(IVR¢I>Aln.n[T 05/08/2008 10:01 FAX � f! LAWS ®N AND SI LEK, P.L.C. 120 EXETER DRIVL, SUITE 200 POST OFFICE Box 2740 W1NCRM5TER, VA 22604 TELEPHONE= (540) 6654050 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 Z 002/002 THOMAS MOORE LAWSON • TLAW,9ONC1i113F1.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. 1 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, ,Jhwm ftU �Wdtfljft Thomas Moore Lawson TML:atd CC_ 0 -N Minerals (Chemstone) Company FuUrer RTAl MIUNCCS: i06I OFFICE BAY 602, F.oR RWAL, VIIICINIn SS[30,T[umowr.: (W)63$ (S. FAC91Mr i (1461 [JS. z H- MA4�YiLCFJTLI'NFCONNCCLCOM FNMF,6XAMU6x.Y6: 10"I MAIN > R!Ks,r,YiNr0100, FAIPY.W. VIFGINIw xxa3U,TFI.CFNONE: 003) 351.1615, FALVMN.[: 1703) .5x4190, E- MAIL:TNOM OLAMSONwr[unnN.NET r' L, AWSON AND SILEK, P.L.C. 120 EXETER DRIVE, Sun'E 200 POST OFFICE Box 2740 WINCHESTER, V1 22604 TELEPHONE: (540) 665 -0050 FACSIMILE: (540) 722 -4051 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 = 'I HO.NIAS MOORE LAWSON • 'ILANVSONa ) L.SPLC.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, , JhbK , d ft�t AWWJAV Thomas Moore Lawson TML:atd cc: O -N Minerals (Chemstone) Company FhOM Rlll'AL ADOR2ti5: PACT Ol H1 E Box 602, FRONT RUYAL. V..1.11IA 22630 TEL,,1IIV 1E: 1540 615-9415, FA, SIMILE: (141), 635-9421, F MAIL. \II ! AJ a LI :NX( ONNECI'.0 IIN F, %IRF1x A111)R1:.9F: IM5 MAIN STRIS. , SUI IE 200, FAIRFAx, VIRLIN[A 22030, TELEPHONE. (703) 352_2615, FAEEIMIIF. (703) 352-4190, EMAIL: THO 1 SO 1 AN �O%, A ERUOK_NET 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 AFR 4 PLEASE REPLY TO' P. O. Box 846 WINCHESTER, VIRGINIA 22604 -0846 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 PARRIERSHIP OF PROFESSIONAL CORPORATIONS ATTORNEYS AT LAW WILBUR C. HALL (1892 - 1972) J b 309 EAST MARKET STREET 9 EAST BOSCAWEN STREET THOMAS V. MONAHAN (1924 - 1999) LEES5URG, VIRGINIA WINCHESTER, VIRGINIA SAMUEL D. ENGLE 0. LEI-AND MAHAN TELEPHONE 703777 1 050 TELEPHONE 540552'3200 ROBERT T. MITCHELL, JR. FAX 54C 66,oSC. JAMES A. KLENKAR E-MAIL lawyemahallmanahan.c m STEVEN F. JACKSON April 4, 2008 HAND - DELIVERED Michael T. Ruddy, AICP Deputy Director Frederick County Department of Planning & Development 107 North Kent Street 'Winchester, VA 22601 AFR 4 PLEASE REPLY TO' P. O. Box 846 WINCHESTER, VIRGINIA 22604 -0846 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, MAHAN & MITCHELL Michael T. Ruddy, AICP April 4, 2008 Page 2 3. The third sentence in the second paragraph states: "Any proffered conditions that would prevent the Applicant from conforming with the State and/or Federal regulations shall be considered null and void." The Applicant is in a better position than the County to determine whether or not any of its proffers are not in conformity with the State or Federal regulations, and this sentence should be deleted. 4. In proffer 1.2, the Applicant is proffering out certain permitted uses in the EM zoning district. The first three uses proffered out are listed as permitted uses in the EM district in.§ ] 65 -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. In Proffer 3.1, the Applicant proffers to dedicate an 8 acre historic site to a "recognized historical association and /or group" with one year of final rezoning. It would appear that any necessary plat work to delineate the 8 -acre site has already been done, or could be quickly done. Accordingly, there should be a commitment to dedicate the 8 acre site within 60 days of final rezoning. Further, if the 8 -acre site is to be promptly dedicated, I question the heed 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 causedby dust will be determined. 13. It should be noted that the restriction on truck traffic in Proffer 8.1 is a maximum of 200 truckloads per day "averaged over the prior 30 days through the scale house hauling mine materials on and/or off the proposed quarry site from the existing quarry entrance." By averaging over the prior 30 days, Saturdays, Sundays, and holidays are included in the averaging, which days may or may not have traffic comparable to week days. Further, it should be determined whether truck trips through the scale house hauling mine materials would include all truck traffic entering and leaving the Property. 14. In Proffer 9.3, the word "a" before the words "period of time" should be changed to the word "the ". Also, the staff should consider whether the $1,000,000.00 policy limits are adequate. In any event, given the long term of prospective mining operations, the policy limits should be subject to an escalator, perhaps every five years. This proffer should also contain a provision that the County will annually be provided a certificate of insurance from the insurance carrier. 15. The staff should determine in Proffer 12. 1, regarding prohibition on lighting structures on the berms, whether the exceptions to the prohibition swallow the prohibition. 16. In Proffer 14.1, the County should determine whether it is satisfactory for the Applicant to choose the "recognized environmental entity" to check water emissions. 17. It is not clear what is being proffered in Proffer 14.2. It seems to be referring to an area outside of the property proposed to be rezoned, which would appear to mean on property not owned by the Applicant. Also, the proffer provides that the area being referred to "is more specifically described in the attached and incorporated plat'. Whatever plat is being referred to needs to be more specifically described. HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy, AICP April 4, 2008 Page 6 18. In Proffer 14.3, the County should determine whether the 200 foot setback for mining operations from the edge of Cedar Creek is adequate. Further, as in Proffer 14.2, the Applicant needs to specifically describe the "attached and incorporated plat ". 19. With respect to Proffer 15 (Phasing), it is noted that there was submitted with the Proffer Statement exhibits of four phasing plans. Proffer 15 does not make any reference to those exhibits. 20. The Proffer Statement makes reference to a Generalized Development Plan (GDP). While the Generalized Development Plan submitted is short on details, the Proffer Statement should provide that the development of, and mining operations on, the Properties shall be in substantial conformity with the MDP. It should be noted that I have not reviewed the substance of all of the proffers as to whether the proffers are suitable and appropriate for the proposed rezoning, or whether other proffers would be appropriate, as it is my understanding that this review will be done by the staff and the Planning Commission. It would be my recommendation in this rezoning that the staff and the Planning Commission carefully review all of the proffers, including, without limitation, proffers involving Site Development, Historic Resources, and Traffic, to determine if the proposed Proffer Statement adequately addresses impacts. If there are any questions concerning the foregoing comments, please contact me. yours, T. Mitchell, Jr. RTM /ks w 1 HALL, MONAHAN, ENGLE, MAHAN & MITCHELL A PAPITNERSHIP 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 PLEASE REPLY TO: P. O. BOX 848 WINCHESTER, VIRGINIA 22604-0848 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 (1692-1972) THOMAS V. MGNAHAN (1924 -1999) ] 6 307 EAST MARKET STREET 9 EAST BOSCAWEN STREET SAMUEL D. ENGLE LEESBURG. VIRGINIA WINCHESTER, VIRGINIA O. LEI-AND MAHAN TELEPHONE 7030771050 TELEPHONE 5¢1882-3200 ROBERT T. MITCHELL, JR. FAx SA1BBaa30a JAMES A. KLENKAR E-MAIL lawyers @hallmonahan.c STEVEN R 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 PLEASE REPLY TO: P. O. BOX 848 WINCHESTER, VIRGINIA 22604-0848 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. V . 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. l 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. S. Paragraph 4.1 of Section 4 (Rights to Water Supply) would not appear to constitute a proffer, in that it appears that the Frederick County Sanitation Authority already has the rights to the groundwater resources under the "existing agreements ". Perhaps something more than this was intended to be proffered. HALL, MONAHAN, ENGLE, MAHAN & MITCHELL Michael T. Ruddy March 27, 2006 Page 4 9. In paragraph 5.1 of Section 5 (Groundwater) the Applicant provides for the placement of three monitoring wells on the property. However, it would seem to me that the County should have access to the information, and that the proffer should provide that the County will have access to the monitoring wells and to the data from the monitoring wells. 10. The first two sentences of paragraph 7.1 of Section 7 (Blasting Control) would not seem to constitute a proffer, and merely state that blasting will be done in accordance with the Applicant's mining permit. 11. While the second paragraph of the Proposed Proffer Statement identifies the Generalized Development Plan, there needs to be a sufficient proffer that the development of the property will be in substantial conformity with the GDP. Where in my above comments I have opined that a proposed proffer is really not a proffer, I have noted that to make the point that it does not propose to do anything above and beyond what is otherwise required. It does not necessarily mean that the statement needs to be deleted, if the County feels that it is helpful to emphasize that particular requirement. It should be noted that I have not reviewed the substance of the proffers as to whether the proffers are suitable and appropriate for the rezoning of this specific property, or whether other proffers would be appropriate, as it is my understanding that that review will be done by the staff and the Planning Commission. If there are any questions concerning the foregoing comments, please contact me. yours, Robert T 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 permit. 11. While the second paragraph of the Proposed Proffer Statement identifies the Generalized Development Plan, there needs to be a sufficient proffer that the development of the property will be in substantial conformity with the GDP. Where in my above comments I have opined that a proposed proffer is really not a proffer, I have noted that to make the point that it does not propose to do anything above and beyond what is otherwise required. It does not necessarily mean that the statement needs to be deleted, if the County feels that it is helpful to emphasize that particular requirement. It should be noted that I have not reviewed the substance of the proffers as to whether the proffers are suitable and appropriate for the rezoning of this specific property, or whether other proffers would be appropriate, as it is my understanding that that review will be done by the staff and the Planning Commission. If there are any questions concerning the foregoing comments, please contact me. yours, Robert T. RTM /ks