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PC_11-15-06_Meeting_MinutesMEETING MINUTES OF THE FREDERICK COUNTY PLANNING COMMISSION Held in the Board Room of the Frederick County Administration Building at 107 North Kent Street in Winchester, Virginia on November 15, 2006. PRESENT: June M. Wilmot, Chairman/Shawnee District; Roger L. Thomas, Vice Chairman/ Opequon District; Richard C. Ours, Opequon District; Charles E. Triplett, Gainesboro District; George J. Kriz, Gainesboro District; Gregory S. Kerr, Red Bud District; Christopher M. Mohn, Red Bud District; John H. Light, Stonewall District; Gary R Oates, Stonewall District; Greg L. Unger, Back Creek District; Cordell Watt, Back Creek District; Robert A. Morris, Shawnee District; H. Paige Manuel, Member -At -Large; Barbara Van Osten, Board of Supervisors Liaison; and Walter E. Hibbard, Legal Counsel. ABSENT: City of Winchester Liaison STAFF PRESENT: Eric R Lawrence, Planning Director; Mark R. Cheran, Zoning & Subdivision Administrator; John A. Bishop, Transportation Planner; Kevin T. Henry, Planning Technician; and Renee' S. Arlotta, Clerk. CALL TO ORDER & ADOPTION OF AGENDA Chairman Wilmot called the meeting to order at 7:00 p.m. Chairman Wilmot asked the Commission for consideration of an amendment to the agenda to hear Item #5, Rezoning Application for Rock Harbor Golf Course, and Item #6, Conditional Use Permit Application of Rock Harbor Golf Course, together as one item. Upon motion made by Commissioner Kriz and seconded by Commissioner Triplett, the Planning Commission adopted the agenda with the amendment proposed. MINUTES Upon motion made by Commissioner Kriz and seconded by Commissioner Ours, the minutes of October 4, 2006 were unanimously approved as presented. Upon motion made by Commissioner Kriz and seconded by Corrunissioner Triplett, the minutes of October 18, 2006 were unanimously approved as presented. Frederick County Planning Commission Page 1901 Minutes of November 15, 2006 -2- `. COMMITTEE REPORTS Comprehensive Plans & Programs Subcommittee (CPPS) — 11/13/06 Mtg. Commissioner Light reported that the CPPS reviewed the 2007 Capital Improvements Plan (CIP). He said highlights were the two new elementary schools, two potential satellite sites for the library, and a new item for the CfP, road infrastructure. Economic Development Commission (EDC) — 11/15/06 Mtg. Commissioner Kerr reported that the EDC had a joint work session with the Chamber of Commerce this morning and there was a good turn out from both groups. He said the two groups are looking for ways to combine their marketing efforts. CITIZEN COMMENTS Chairman Wilmot called for citizen comments on any item that was not on this evening's agenda. No one came forward to speak. • PUBLIC HEARING Rezoning 915 -06 of Rock Harbor Golf Course, submitted by Greenway Engineering, to rezone 58.08 acres from EM (Extractive Manufacturing) District to RA (Rural Areas) District, with proffers, for golf course expansion. This property fronts on the south side of Round Hill Road (Route 803) and on the east side of Woodchuck Lane (Route 654), adjacent to Section Three and Section Seven of the Roscommon Subdivision and the existing Rock Harbor Golf Course. The property is further identified with P.I.N. 52- A-256in the Back Creek Magisterial District, Conditional Use Permit 410 -06 of Rock Harbor Golf Course, submitted by Greenway Engineering, for commercial outdoor recreation with accessory clubhouse and food service for the general public. The properties are located as follows: Property Identification Number 52 -A -256 fronts on the south side of Round Hill Road (Route 803) and on the east side of Woodchuck Lane (Route 654), adjacent to Section Three and Section Seven of the Roscommon Subdivision, and the existing Rock Harbor Golf Course; Property Identification Number 52 -A -313 fronts on the north side of Merriman's Lane (Route 621) at the northwest quadrant of the Route 37 bridge crossing; Property Identification Number 52- A -313A fronts on both sides of Lacosta Court in the Roscommon Subdivision, Section Seven; Property Identification Number 53 -A -88 is located on the west side of Route 37, adjoining and accessed through tax map parcel 52 -A -313. The properties are in the Back Creek Magisterial District. • Action — Recommended Approval of Rezoning with Proffers and Recommended Approval of Conditional Use Permit with Conditions Frederick County Planning Commission Page 1902 Minutes of November 15, 2006 -3- • Zoning and Subdivision Administrator, Mark R. Cheran, read the background information for the Commission. Mr. Cheran reported that the applicant wishes to rezone 58 acres from EM (Extractive Manufacturing) District to RA (Rural Areas) District to allow for future expansion of the Rock Harbor Golf Course. Mr. Cheran said that any expansion of the golf course will require an approved conditional use permit (CUP) and approval of the rezoning does not guarantee the expansion of the golf course. He stated that the property is located outside of the Urban Development Area (UDA) and the Sewer and Water Service Area (SWSA); he said the site has an industrial land use designation on the Eastern Frederick County Long Range Land Use Plan. Mr. Cheran stated that both the Western Jubal Early Land Use Plan (WJELUP) and the Metropolitan Planning Organization's (MPO) 2030 Transportation Plan calls for a new interchange of Route 37 at Merriman's Lane. Mr. Cheran said the applicant has proffered to dedicate the 1.49 acres of land necessary to accommodate that interchange; he noted that this proffered road dedication will provide a critical piece of the planned Route 37/Merriman's Lane interchange. Mr. Cheran added that the applicant has also proffered to develop this property for the expansion of the Rock Harbor Golf Course, in conformance with the exhibit provided; however, the applicant would like to retain the right to utilize the property in the future for any land uses permitted in the RA Zoning District. Mr. Cheran pointed out that this proffer would allow any RA uses, including single - family dwellings, immediately adjacent to the EM -zoned property that will continue to be used as an active quarry; he advised that it may not be good planning to allow new residences to be located in this area adjacent to an active quarry. Other proffers described by Mr. Cheran included a boundary line adjustment plat, joining this parcel with the existing golf course; and a $5,000 monetary proffer to Frederick County for Fire and Rescue. Mr. Cheran next presented the conditional use permit for the expansion of the golf course by 18 holes and expansion of the existing clubhouse to a maximum of 24,000 square feet; the clubhouse expansion will • include a pro shop, food service, and storage. Additionally, buildings to support this golf course expansion will include maintenance structures, mid - stations, and golf cart storage buildings. Mr. Cheran read a list of recommended conditions, should the Commission find the use to be appropriate. Mr. Evan A. Wyatt with Greenway Engineering was present to represent Stuart M. Perry, Inc. and the Perry family. Mr. Wyatt described the four properties involved and their locations. He also addressed the staffs concern about the applicant's desire to retain the right to utilize the property in the future for any land uses permitted in the RA Zoning District. He explained the applicant's need to have the ability to use the property in its RA capacity, in the event the golf course would no longer be viable at some point in the future. Mr. Wyatt also talked about the applicant's intent on keeping the quarry operating; he said the EM District regulations in the zoning ordinance establish setbacks for the quarry. He said the applicant has incorporated a yellow line in the diagram and if the rezoning is approved by the Board of Supervisors, any work done in the quarry will be bound by the additional setbacks towards residential. Chairman Wilmot next called for public comments; however, no one came forward to speak. Commissioner Unger was pleased with the applicant's proffer of the acre -and -a -half of property to VDOT for the future interchange and with the applicant's contribution of $5,000 to the County for fire and rescue purposes. He did not think the applicant would do anything to jeopardize the quarry operations. No other issues or concerns were raised by the Commission. Commissioner Unger moved to recommend approval of the rezoning with proffers for Rock Harbor Golf Course. This motion was seconded by Commissioner Manuel and unanimously passed. Frederick County Planning Commission Page 1903 Minutes of November 15, 2006 -4- Commissioner Unger next moved to recommend approval of the conditional use permit for Rock Harbor Golf Course with the conditions recommended by the staff. This motion was seconded by Commissioner • Ours and unanimously passed. BE IT RESOLVED, THAT the Frederick County Planning Commission does hereby unanimously recommend approval of Rezoning 415 -06 of Rock Harbor Golf Course, submitted by Greenway Engineering, to rezone 58.08 acres from EM (Extractive Manufacturing) District to RA (Rural Areas) District, with proffers, for golf course expansion and Conditional Use Permit # 10 -06 of Rock Harbor Golf Course, submitted by Greenway Engineering, for commercial outdoor recreation with accessory clubhouse and food service for the general public, with the following conditions: I. All review agency comments and requirements shall be complied with at all times. 2. An engineered site plan shall be approved by Frederick County prior to starting any expansion of this site. 3. No more than one sign shall be allowed on the property. The sign shall be located at the entrance. 4. Any future expansion of this use beyond 36 holes and a 24,000 square -foot clubhouse with associated maintenance and storage facilities, and mid - stations, shall require a new conditional use permit. 5. Approval of CUP # 10 -06 will null and void the existing CUP 427 -99. • Conditional Use Permit 909 -06 of Joyce Myers for a kennel at 625 Town Run Lane (Rt.1012), a 1.04 -acre parcel, zoned RA (Rural Areas). This property is identified with P.I.N. 85 -A -137 in the Opequon Magisterial District. Action — Tabled for 60 Days Planning Technician Kevin T. Henry reported that the proposed conditional use permit (CUP) has been applied for as a result of a zoning violation of the Frederick County Zoning Ordinance. Mr. Henry said the applicant has been in violation since June of 2006, but has cooperatively worked towards reducing the number of dogs on the property. In addition, this violation was before the General District Court on September 5, 2006; judgment was extended 90 days to allow for a decision on the pending CUP. Mr. Henry stated that dog kennels are a permitted use in the RA (Rural Areas) Zoning District with an approved CUP. He noted that the property consists of 1.04 acres and the proposed kennel will have no more than ten dogs or puppies, including litters. In addition, he said the applicant has proposed outdoor kennels, but has given thought to an indoor facility in the future. Mr. Henry continued, explaining the buffer requirements for kennels adjoining residential uses. He specified that a 100 -foot buffer is required along the northern and eastern boundaries of the Myers' property; the buffer would need to maintain three trees per ten linear feet with a six -foot tall opaque fence. Mr. Henry said the adjoining property to the north is a higher- density residential subdivision, zoned RP, and with any kennel, staff has concerns that noise from the kennel may create a nuisance for adjoining property owners. Henoted there are four dwellings currently under construction adjoining the applicant's property and these dwellings will be within 200 feet of the dog cages. Mr. Henry next read a list of recommended conditions, should the Commission find the use to be appropriate. r1 U Frederick County Planning Commission Page 1904 Minutes of November 15, 2006 -5- Commissioner Thomas asked Mr. Henry if he was aware of any recently- approved kennels where the Commission did not require the dogs to be kept inside during the night in an enclosed building. Mr. Henry replied that typically, previously - approved kennels have required that dogs be kept inside during the night. Commissioner Unger inquired if there was a limit on the number of dogs a kennel could have, in relation to the size of the parcel. Mr. Henry said that a CUP is required and the number of dogs could be restricted within the conditions; he said that because this particular property adjoins residential, the conditions were more restrictive. Commissioner Ken questioned this use being classified as a business because the applicant has said there is no boarding of dogs, nor breeding. Mr. Henry said that the applicant has referred to her operation as a kennel, as well as a rescue facility. Mr. Henry said the Planning Department has made a determination that the animals are not pets. Chairman Wilmot inquired about the size of any proposed building; Mr. Henry believed the applicant had considered about 4,000 square feet. He pointed out the limited area a structure could be placed because of zoning district buffer requirements, as well as normal building restriction line requirements. Mr. Henry thought it may be difficult to get an indoor facility on this property. Mr. Ty Lawson, attorney, said his firm was recently engaged to represent Ms. Myers; in fact, it was after the filing of the CUP, as well as the court case. Mr. Lawson said that Ms. Myers conducts an operation called Paws and Whiskers, which is a 501(C)3 tax - exempt charitable organization, a designation received from the IRS and is designated solely to rescuing dogs and cats from shelters, where they would be euthanized, and adopting them out to suitable homes. He said that Ms. Myers has been operating on her property for quite some • time and has received national recognition for her efforts, especially with regard to Hurricane Katrina victims' pets. Mr. Lawson said that they have looked at several of the issues, some dealing with the CUP itself and whether the conditions will work for the applicant. He asked the Commission to consider tabling the request to give them more time to work on these issues. Chairman Wilmot called for public comments and the following person came forward to speak: Ms. Carla Coffey, representing Arcadia Development Company and Arcadia Southern Hills, LLC, said they own the adjacent property to the north, known as Southern Hills Subdivision. Ms. Coffey said that Ms. Myers' property borders four of their lots, on which single - family homes are currently being constructed. She added that while she appreciates and commends Ms. Myers' efforts and desire to help animals in need, she questioned the appropriateness of this use at the proposed location. Ms. Coffey said the size of the proposed parcel, as well as the proximity of adjacent residential, is cause for concern. Ms. Coffey asked the Planning Commission to strongly consider these concerns in their decision - making process. the meeting. No one else came forward to speak and Chairman Wilmot closed the public comment portion of Commissioner Oates asked if the kennel was in operation prior to Southern Hills being rezoned and Mr. Henry replied no. Mr. Henry said the property was purchased by Ms. Myers on July 29, 2002 and the rezoning for Southern Hills took place in early 2002. Commissioner Thomas recognized this was an admirable use; however, he said he would have difficulty approving outdoor kennels. He said that even ten animals next to housing could present a nuisance for is neighbors. He pointed out that a metal structure is not going to be adequate to dampen sound; he said most of the other structures constructed for kennels in the County have been concrete block buildings. Commissioner Thomas also believed this was the wrong location for this type of use. Frederick County Planning Commission Page 1905 Minutes of November 15, 2006 • Other Commissioners agreed and commented that they would only support an indoor operation at this location. Upon motion made by Commissioner Ours and seconded by Commissioner Kriz, BE IT RESOLVED, THAT the Frederick County Planning Commission does hereby unanimously table Conditional Use Permit 409 -06 of Joyce Myers for a kennel at 625 Town Run Lane (Rt. 10 12) for 60 days, at the applicant's request, to allow the applicant time to address issues raised by the staff and Planning Commission. Conditional Use Permit #11 -06 of Dawson and Robann Riggleman to re- establish a legal non - conforming use to have horses at 120 Longeroft Road. This property is identified with P.I.N. 64 -A -44 in the Shawnee Magisterial District. Action — Recommended Approval with Conditions Planning Director, Eric R. Lawrence, reported that this request is to re- establish a non- conforming use, which is the right to maintain horses on the applicant's 8.86 -acre property, zoned RP (Residential Performance); he said the applicants reside on the property. Mr. Lawrence provided some history of the site, noting that the Rigglemans have lived in this area since the 1950's and acquired the property from family. Mr. Lawrence said the building official granted them an agricultural exemption to build a barn, the building • official granted Allegheny Power an agricultural exemption to connect power to the barn, and they had discussions with the Planning Department; therefore, the Rigglemans believe they had received all of the authorizations to keep the horses on the property. Mr. Lawrence stated that within the last six months, the Planning Department received a complaint, inspections were done and history reviewed; however, there was no written documentation that the County had ever granted theRigglemans the right to keep horses. He said that the property has been zoned residential since 1967, when the County adopted zoning, and never had, through zoning, the rights to horses. He said the request this evening is simply to re- establish the grandfather right that this property has always been a farm parcel, that the property always had animals, and it is referenced back to the 1950's. He said the staff has suggested a number of conditions, including limiting the number of animals, and he read those for the Commission. Mr. Lawrence noted that the complaint received concerned insects, such as horse flies, and odor, generated during the middle of summer. Mr. Lawrence stated that while the staff and applicant went through the conditional use permit (CUP) process, a number of adjoining property owners submitted documentation supporting the use. Commissioner Kriz suggested that one of the conditions should state that only horses are allowed on the property, prohibiting cows, sheep, etc. Commissioner Thomas said he did not have a problem with this particular application; however, he thought it may set a precedent for future applications. He said the argument is to re- establish a previous use; he said this argument could be used on any residential property in the County because every residential property more than likely used to be a farm. Commissioner Thomas thought this was the first time the County has used this philosophy on a residential property to re- establish a previous non - conforming use. Mr. Lawrence believed this was a unique situation because of the longevity of family knowledge and use of the property. He said that every parcel needs to be considered on its own merit. Mr. Lawrence added that because this was a CUP, a legislative action, the Board of Supervisors ultimately makes the determination whether it is appropriate or not. Frederick County Planning Commission Page 1906 Minutes of November 15, 2006 -7- Commissioner Unger didn't believe this situation would set a precedent because of the fact that this was the first time it has come up for consideration for the Commission. He said that because this is a CUP, the choice of approval or disapproval can be made with each individual request. Commissioner Morris mentioned the mass zonings that occurred in 1967; he wondered how many other properties might be zoned RP when people think that they are RA. Mr. Lawrence didn't think there were many pockets of this type within the County, but certainly some do exist. Commissioner Oates asked if a downzoning was discussed with the applicant. Mr. Lawrence replied that downzoning was presented to the applicant; however, the applicant felt the CUP was the more appropriate route for them. Mr. Benjamin Butler, attorney for the Rigglemans, said the Rigglemans were okay with the four conditions recommended by the staff; he said restricting this to horses only will not be a problem for them. Mr. Butler said he lived in the area back in 1967 and this area did not have public sewer and water. He said this particular property was zoned RI back in that time. Chairman Wilmot asked Mr. Butler if the subdivision along Longcroft Road was in existence in 1967 and if the parent tract included the Riggleman's property. Mr. Butler replied yes and the parent tract did include the Riggleman's property. speak: Chairman Wilmot next called for public comments and the following persons came forward to . Ms. Angelica G. Ganczak, an adjoining property owner at 102 Travis Court, said that she and her husband, Kevin, can see the Riggleman's house from her back yard. Ms. Ganczak presented a letter from her neighbor, Mr. and Mrs. Ronald and Debra Potter, adjoining property owners at 106 Travis Court, who could not attend the meeting and requested that their letter be read. Upon the Chairman's permission, Ms. Ganczak proceeded to read the letter, as follows: To the Department of Planning and Development: We, Ronald and Deborah Potter, live directly behind the barn on the Riggleman's property. It is wonderfully kept, beautiful, and a pleasure to live behind. We were aware of the barn and horses before we purchased the land and actually chose this particular lot because of its location. The horses are walked and groomed regularly. The barn is kept in excellent condition, as well as the rest of the eight acres. Often, you will find us and our neighbors on the back porch admiring the landscape. We are 100% in favor of the property remaining as it is. We would be at this meeting showing full support, except we will be on vacation beginning tomorrow (today). If you have any questions for us, we would be happy to answer. Please renew this application for a hundred years or so. Ms. Ganczak continued, stating that her family arrived to this area in April of 2004 from Loudoun County. She said one of the reasons they purchased their home here was because they loved the scenery, including the house and barn on the Riggleman's property. Ms. Ganczak said they have not experienced any odor from the horses or bugs, and the children love to see the horses. She said the last thing they would want to see is the Rigglemans leave because they are wonderful neighbors. She does not want to seethe horses go because they are wonderful neighbors as well. Ms. Rose Stine, an adjoining property owner at 124 Longcroft Road for 26%2 years, stated this is a wonderful neighborhood and she loves the horses. Ms. Stine said that she has never smelled an odor, even on hot, summer days. Mr. William (Bill) Holbrook, adjoining property owner at 112 Longcroft Road, saidhe watched the Riggleman children grow up. Mr. Holbrook said his backyard goes right down to the Riggleman's pony ring. He said the Rigglemans have been tremendous neighbors and good people; he has had no problems. He said he Frederick County Planning Commission Page 1907 Minutes of November 15, 2006 has never seen horse flies, bugs, or smelled any odor. He said he would love for the Rigglemans to keep their horses. Mr. John Koontz said that his father built Bufflick Heights; he said he moved to this area in 1956 and helped his father build about eight houses in Bufflick Heights. He said the property in question was never set up as a development, but was considered a buffer to Bufflick Heights. He said he purchased the land in 1978. Mr. Koontz said the house was started at this location because at the time, in 1979, there was a moratorium on building anything that was not on public water and sewer. Mr. Koontz said they needed the 8.8 acres to construct the house because of the septic system. He said the Rigglemans bought the house and land in 1983 with the intent of leaving the land vacant and putting horses on it. No one else wished to speak and Chairman Wilmot next closed the public comment portion of the meeting. Commissioner Light asked staff if the CUP is granted and there are future complaints, if it would be handled administratively or if it would come back before the Planning Commission. Mr. Lawrence said that the staff will work with the property owner to try and resolve the complaint. Mr. Lawrence said it would only come back to the Commission if the problem presented an impasse and continued violations were not addressed. Mr. Lawrence believed that the issues surrounding the previous complaint stemmed from the horses continuously being at one location. He said the idea was presented to circulate the horses around the different fields so they are not standing adjacent to a particular property where all the manure can build up. He said this should alleviate the issues. Mr. Lawrence said the complainants seemed to be comfortable with this concept. He said the original complaint was about odor, which is not a zoning violation on the surface, but when the staff made the inspection and found the horses, that became the violation. The complaint was not about the horses, it was about the odor . that was coming from the horses. Commissioner Morris said that if he was one of the neighbors, he would much prefer five horses over 30 single - family homes or a 100 -unit apartment complex. Commission members believed the property should be restricted to "equine" only, in order to exclude other forms of livestock. Commissioner Morris moved for approval of the CUP with the conditions as recommended by the staff, plus an additional condition stating that only equine will be permitted on the property. This motion was seconded by Commissioner Unger. Mr. Benjamin Butler, the applicants' attorney said the Rigglemans are fully in favor of the additional condition. BE IT RESOLVED, THAT the Frederick County Planning Commission does hereby unanimously recommend approval of Conditional Use Permit #11 -06 of Dawson and Robann Riggleman to re- establish a legal non- conforming use to have equine at 120 Longcroft Road with the following conditions: No more than a total of five equine shall be on the property at any one time. 2. The equine shall be rotated between fenced areas in an effort to minimize odor and insect impacts on the adjacent residences. 3. Equine manure shall not be stockpiled nor spread within 40 feet of any property boundary line. 4. Any modification or expansion of this use will require a new conditional use permit. 5. Only equine shall be permitted on the property. i Frederick County Planning Commission Page 1908 Minutes of November 15, 2006 am PUBLIC MEETING Subdivision and waiver request for Subdivision 914 -06 for C. Robert Solenberger, Et Al, submitted by Greenway Engineering, for the creation of a new 1.25 acre, RA (Rural Areas) —zoned lot and waiver of Chapter 144, Article V, Section 31C(l)(B) — Rural Subdivisions. The property (Rutherford Industrial Park) fronts the western boundary of Martinsburg Pike (Rt. I IN) approximately 0.65 miles north of the intersection with 1 -81 (Exit 317). The property is further identified with P.I.N. 43 -A -111 in the Stonewall Magisterial District. (Tabled from the Planning Commission's October 18, 2006 meeting.) Action — Recommended Denial Commissioner Light said that he would abstain from all discussion and voting on this request, due to a possible conflict of interest. Zoning and Subdivision Administrator, Mark R. Cheran, reported that the applicant is seeking the ability to create two parcels from an 18.345 -acre tract, consisting of a 1.25 -acre parcel, zoned RA (Rural Areas), and a second parcel consisting of 17.0954 acres, zoned M 1 (Light Industrial), with an access across RA- zoned property. Mr. Cheran said the access across RA land would enable a secondary site access to Route 11; the primary site access would be through the Rutherford Industrial Park road network, as proffered with the Rutherford Industrial Park rezoning application. He further explained that in order to enable this subdivision, the applicant would need to obtain a waiver of the minimum lot size for the 1.25 -acre, RA -zoned property. Mr. Cheran continued, stating that this item was tabled for 30 days at the Commission's October 18, 2006 meeting to provide the applicant time to work out the issues and concerns from the Planning • Commission and staff. He read a list of items that the Planning Commission wanted to see with the re- submitted application, as follows: 1) a schematic of the proposed entrance; 2) the location of the guard gates and FEMA entrance gates; 3) buffering along the access road for the neighbors on both sides; 4) consideration of inter -parcel connectors on both sides of the property; and 5) the provision of traffic counts. Mr. Cheran reported that the applicant had not submitted plans to address buffering along the access road for the adjoining properties, nor submitted plans for inter - parcel connection to adjoining properties to limit the number of entrances to Route 11. He said the traffic count proposed to be generated by this site is 5,689 trips - per -day. He said that staff has provided a copy of the entranceway approved with the FEMA site plan; however, the schematic shows the location of the temporary road with no gates. Commissioner Oates asked for confirmation from the staff that none of the five requests from the Planning Cormmission had been addressed by the applicant. Mr. Cheran confirmed that was correct. Commissioner Oates also inquired if FEMA would own or lease the parcel. Mr. Cheran replied it was his understanding they were leasing the parcel. Commissioner Oates pointed out that FEMA may not be a permanent use on this parcel and Mr. Cheran said that was correct, it was available for general office use. Commissioner Kriz asked staff for clarification on whether the access road was already approved and if it was a temporary access. Mr. Cheran said the secondary access road had already been approved through FEMA's approved site plan. Planning Director Eric R. Lawrence explained that because the internal road system for Rutherford Industrial Park would not be completed for some time, the site plan for the FEMA facility provided a new entrance, termed "temporary," which indirectly is a secondary entrance to the property. He said it will be constructed and it will remain there, but ultimately, the primary entrance would be coming through the industrial • park at a signalized access to Route 11. Mr. Lawrence said the Planning Commission is considering the subdivision of a 1.25 -acre parcel, leaving a 17.0954 -acre balance for the FEMA parcel. He noted that the 1.25 acres does not meet the minimum lot size requirement. He added that the Commission's decision on the waiver Frederick County Planning Commission Page 1909 Minutes of November 15. 2006 -10- will not affect whether the road goes in. Commissioner Thomas commented that there is no buffer between this road and the adjoining Merryman's property. Mr. Lawrence said the access was not a road by definition, but simply an entrance. Furthermore, because it is an entrance, it does not have buffer requirements. Mr. Lawrence explained that during the administrative review of the site plan, a determination was made that because the facility was larger than what had initially been envisioned, the secondary access from an emergency standpoint made sense, and from a timing perspective it made sense as well, until such time as the Rutherford Park's roads were built. Commission members expressed concern that this entrance was approved administratively through the site plan process. Commissioners commented that this will bring a huge volume of traffic into an area where there have been no proffered road improvements, no traffic control, and no safety measures. In addition, they were displeased about how close the access was to the Merryman's property, especially without buffering. Mr. Evan A. Wyatt, with Greenway Engineering, came forward to represent C. Robert Solenberger, et als, the property owners in this application. Mr. Wyatt stated that of the five items requested by the Commission, only two were specifically tied to this subdivision, the inter -parcel connectors and the buffering. He said that because the existing residential driveway was so close to FEMA's new driveway access, FEMA reluctantly allowed the residential parcel to tie into their road; however, FEMA was not interested in providing additional connections. Mr. Wyatt said the response they received from FEMA on buffering the Merryman's property was that a water line and easement runs up along the road, so they were not willing to do any sort of buffering there. He said FEMA would consider the buffering only if the Merrymans would provide a landscaping easement on their property and FEMA was allowed to relocate some of their trees on the office park site to the Merryman's properly. Chairman Wilmot called for public comments and the following person came forward to speak • Mr. Scott Merryman came forward to introduce himself, his wife, Shelly, and daughter, Whitney. Mr. Merryman estimated that the centerline of the proposed road was approximately 60 feet to his property line and within 100 feet of his house. Mr. Merryman said he was devastated to hear tonight that the road was already approved and was going in regardless. He expressed concern for the safety of children waiting for the school bus with an estimated 5,000 trips per day entering the site. He also stated that there was nothing temporary about the road being constructed, he believed employees would not travel around to the other entrance, through an industrial park area, but would continue to use this driveway. Regarding FEMA's suggestion that Mr. Merryman provide a buffer easement on his property, Mr. Merryman said he probably has no more than 35 -40 feet available. He said he didn't receive any notification on a site meeting to discuss how this would involve his property. There being no one else present to speak, Chairman Wilmot closed the public continent portion of the meeting. A member of the Commission doubted that a water line would prevent placing some shrubs or other landscaping for some minimal buffering. Another member of the Commission believed the administrative determinations that were made on approving the site plan were probably made with the best interest of the County in mind, but during the process, everyone lost site of the adjacent neighbors. Commission members recognized there was not a lot they could do about the entrance at this point; they expressed their disappointment that it had slipped through the cracks the way it did. Members commented that if this particular piece of acreage had been rezoned, the Commission would have discussed buffers, entrances, etc. Commissioner Oates made a motion to recommend denial of the waiver request. This motion was seconded by Commissioner Morris and was passed by a majority vote, as follows: Frederick County Planning Commission Page 1910 Minutes of November 15, 2006 -11- • YES (TO DENY) Unger, Manuel, Morris, Oates, Wilmot, Thomas, Ours, Kriz, Kerr, Mohn NO: Watt, Triplett ABSTAIN Light Commissioner Oates made a motion to recommend denial of Subdivision # 14 -06 for C. Robert Solenberger, Et Al. This motion was seconded by Commissioner Morris and passed by the following majority vote: YES (TO DENY) Unger, Manuel, Morris, Oates, Wilmot, Thomas, Ours, Kriz, Kerr, Mohn NO: Watt, Triplett ABSTAIN Light BE IT RESOLVED, THAT the Frederick County Planning Commission does hereby recommend denial of Subdivision #14-06 for C. Robert Solenberger, Et Al, submitted by Greenway Engineering, for the creation of a new 1.25 -acre, RA (Rural Areas) —zoned lot and does also recommend denial of the waiver of Chapter 144, Article V, Section 31C(1)(B), Rural Subdivisions. • Waiver Request for Gas Mart 47, submitted by Greenway Engineering, to consider an entrance spacing waiver permitted in Article IV, Section 165- 2913(1), of the Frederick County Zoning Code to allow for a new commercial entrance to be placed less than 200 feet from an existing road and an existing entrance. Action — Denied Transportation Planner, John A. Bishop, reported that the Planning Commission tabled this item after consideration at their meeting of October 4, 2006. Mr. Bishop reported that the applicant is seeking a waiver of the 200 foot County minimum entrance spacing in order to install an additional right -in -only entrance from Route 7 onto the Gas Mart property. He explained the actual waiver would be for 120 feet off the existing entrance to the 7Tl and 95 off of cka�r ucle. r. iM B s >�saai - ehe lanning Commission a adkedthie staff to render an opinion on this issue; he said the staff would strongly discourage the waiver at this time. Mr. Bishop continued, providing the Commission with the staff s basis for this determination. 1) County Ordinance Calls for 200 Feet Spacing He explained that the County's ordinance calls for 200 feet entrance spacing and this site is seeking the waiver on both sides of their entrance, despite the fact that their currently- approved entrance is barely outside the County minimums. He said that while VDOT's current spacing minimums remain at 50 feet, the County recognized back in 1991 that this was insufficient and adopted a stronger standard. 2) Route 7 is an Arterial Roadway Mr. Bishop explained that arterial roadways, by definition, are to have the highest volumes of traffic with fewest possible conflicts, in order to facilitate through movement of traffic above land access. He said in the functional classification hierarchy, arterial roadways are ranked just below interstate roadways and act as a backbone to the transportation system. He noted that the creation of each additional entrance erodes the roadway's ability to adequately serve this function. 3) County and State Planning • Efforts Mr. Bishop said that in May of this year, the Board of Supervisors authorized the transportation planner and the Transportation Committee to begin work on a county-wide access management plan and state -wide, the General Assembly has instructed VDOT to come back with a state -wide access management plan in 2007. Mr. Frederick County Planning Commission Page 1911 Minutes of November 15, 2006 -12- • Bishop said it would seem that granting this waiver would be in opposition to both of those efforts. 4) Site Specific Traffic Flow Concerns Mr. Bishop stated that Gas Mart's approved entrances on Eckerd Circle allow for a logical flow of traffic into and out of the site while minimizing impacts on Route 7 capacity and safety. He said the inclusion of the right -in -only entrance so close to Eckerd Circle would create a situation of uncertainty for drivers exiting the business from Eckerd Circle; there may be an issue of these exiting drivers having difficulty distinguishing whether approaching drivers are turning onto Eckerd or the right-in-only entrance, thereby creating a potential safety issue. 5) Need for Additional Access Mr. Bishop said that Gas Mart has been developed and is now open for business under an approved site plan with entrances on Eckerd Circle. He said that although the property owner may desire an additional entrance, the lack of it does not impede their ability to run a successful business. Mr. Mark Smith with Greenway Engineering and Mr. Benjamin Butler were present to represent the Gas Mart entrance waiver request; they presented handouts to the Commission which included photographs and diagrams of the site and entrances. Mr. Smith said the ordinance specifies entrance spacing requirements for a two -way spacing setup and is silent on a right -in or right -out access scenario. He also commented that they were seeking a waiver, not a variance; therefore, a hardship does not need to be proven. Mr. Smith thought the most significant potential safety issue raised by Mr. Bishop was the scenario where a vehicle is waiting to make an exit from Eckerd Circle and trying to judge whether an approaching vehicle is intending to turn into Eckerd Circle or going further to make the Gas Mart's proposed right -in -only. Mr. Smith continued, stating that the Eckerd Circle entrance is elevated and provides good site distance back towards Winchester; the existing curb and gutter is set back 14 feet in order to provide a full turn lane for approaching vehicles. He said that in the opposite direction, towards Berryville, there is an existing traffic signal, necessitating vehicles to begin slowing down as they approach the signal. Mr. Smith next provided • the Commission with some operational facts about the Gas Mart. He said this particular Gas Mart is the first gas station from the interstate in Frederick County on the right -hand side; it seems that vehicles are over - shooting the gas station and driving by it. Mr. Smith said that his client owns several Gas Marts and a store of this capacity should be doing approximately 15,000 gallons of fuel per day; it is currently running approximately 3,000 gallons per day. He said inside sales should be roughly $7,000 per day; however, it is actually $2,000 per day. Mr. Smith stated that this business is not meeting its sales potential. Mr. Smith asked the Commission if the entrance spacing requirements would apply to the right -in -only entrance, on the east. He said that if the right -in -only entrance was moved closer to the property line with Seven - Eleven, the distance from Eckerd would be increased, and it would aid a motorist injudging whether an oncoming vehicle was turning on Eckerd or going into the right - in -only. In addition, he said that if the Seven - Eleven project would redevelop in the future, his client would try to work out a shared entrance at the property line. Commissioner Unger was concerned that the existing entrance/ exit design on Eckerd wasn't working properly for this site. Mr. Smith said that going out is fine; however, the exit is wide and the pumps are clearly visible, so it is too inviting not to use the designated exit as an entrance, as well. Commissioner Triplett believed that motorists would continue to use the Eckard access, even if the additional access on Berryville Avenue is approved; he preferred to see the entrance in front of the pumps. Commission members believed the proposed additional right-in-only entrance on Berryville Pike would present a safety hazard. A Commission member pointed out that there was no deceleration lane and the right -in was probably almost a 90- degree turn; motorists would have to slow down to make the right turn with vehicles coming behind them at 45 mph. In addition, they said vehicles would be coming out from Eckerd Circle with no acceleration lane into a line of traffic coming into the Gas Mart. Commissioners said they could not support the proposed additional entrance, but they would be willing to consider a shared entrance with Seven - Eleven. Furthermore, they believed the first access on Eckerd Circle needed to be closed, to prevent vehicles from darting into that location from Berryville Pike. Frederick County Planning Commission Page 1912 Minutes of November 15, 2006 -13- • Upon motion made by Commissioner Mohn and seconded by Commissioner Triplett, BE IT RESOLVED, THAT the Frederick County Planning Commission does hereby unanimously deny the waiver request for Gas Mart #7, submitted by Greenway Engineering, to allow for a new commercial entrance to be placed less than 200 feet from an existing road and an existing entrance. Discussion of various Subdivision and Zoning Ordinance amendments, as follows: Subdivision of Land (Chapter 144), Article II, Definitions; Subdivision of Land (Chapter 144), Article V, Design Standards, Section 24(C)(2)(B), Lot Requirements; Zoning (Chapter 165), Article V, RA (Rural Areas) District, Section 54(B), Permitted Lot Sizes; Zoning (Chapter 165), Article V, RA (Rural Areas) District, Section 54(D), Permitted Lot Sizes; Zoning (Chapter 165), Article XXII, Definitions and Word Usage, Section 156. Subdivision of Land (Chapter 144), Article II, Definitions and Word Usage Zoning and Subdivision Administrator, Mark R. Cheran, stated that the Development Review and Regulations Subcommittee (DRRS) recommended additional language to clarify Section 144 -2, Definitions and Word Usage. Mr. Cheran read the proposed language for the Commission. No issues or concerns were • raised by the Commission and they agreed the amendment was appropriate. Subdivision of Land (Chapter 144), Article V, Design Standards, Section 24C(2)(b) Mr. Cheran stated that the DRRS recommended removing and adding language to this section which would correct a typographical error dealing with road length for individual lots. Mr. Cheran read the proposed language for the Commission. No issues or concerns were raised by the Commission and they agreed the amendment was appropriate. Zoning Ordinance (Chapter 165), Article V, RA District, Section 54(B)(1), Family Division Lots Mr. Cheran stated that the DRRS recommended adding new language to this section of the ordinance regarding a time period for family division lots to remain with the family member. Mr. Cheran reported that just this legislative year, the Commonwealth of Virginia changed the State Code to allow localities to set time limits on how long a family division lot has to remain with a family member, but not to exceed 15 years. He stated that historically, the zoning administrator in Frederick County has interpreted the unwritten time period to be two years. Mr. Cheran explained that given the opportunity to codify a period of time a family member must keep the conveyed lot, the DRRS has recommended a period of five years from the date of the creation of the family lot. Commissioner Oates, a member of the DRRS, commented that the applicant would have to sign an affidavit acknowledging awareness of the five -year time period in order to do a family subdivision. No issues or concerns were raised by the Commission and they agreed the amendment was appropriate. C � J Frederick County Planning Commission Page 1913 Minutes of November 15, 2006 -14- Zoning Ordinance (Chapter 165), Article V, RA District, Section 54(D) Rural Preservation Lots • Mr. Cheran stated the DRRS recommended changes to this section of the zoning ordinance regarding rural preservation lots to avoid confusion and to add clarification to the text. Specifically, the ordinance is not clear if the parent tract can be subdivided if it is recorded with a greater than 40% set -aside. He said that historically, the zoning administrator has interpreted that once the tract is recorded, it cannot be subdivided, regardless of the percentage of the set - aside. Mr. Cheran read the proposed language for the Commission. The text specified that 40% or more of the parent tract shall remain intact as a contiguous parcel (Rural Preservation Tract); the acreage must be designated prior to the division of the fourth lot; and no future division of this designated Rural Preservation Tract shall be permitted. New language was also added under subsection (3) Board of Supervisors Waiver of Division Restriction. This section included language regarding releasing the preservation parcel from restrictions. Commissioners provided the following comments for the staff: Commissioner Triplett said the language indicates the rural preservation tract can not be subdivided; however, he asked if it could be resold as a full tract of property and the new purchaser subdivide the property. The answer provided was no; the property remains as a preservation parcel with the new owner. Commissioner Morris stated that at the last Planning and Zoning Conference he learned that the General Assembly passed legislation effective in July of 2007 directing that this preservation parcel is set aside in perpetuity and can never be rezoned. Mr. Cheran said that he was not aware of the legislation and would research the matter. Commissioner Oates said that during the RA Study two -and -a -half years ago, committee members had the opinion that rural preservation parcels were not intended to be in the UDA (Urban Development • Area), but instead were meant for the SWSA (Sewer and Water Service Area). Commissioner Oates said he thought the basis for their reasoning was if the preservation parcel comes through the SWSA, then it could be considered for a rezoning. Commissioner Oates also commented that the language under 165- 54(D)(1)(c) may preclude the ability to add acreage to the rural preservation tract. He said that as long as the acreage of the tract doesn't shrink, he did not see any reason why a consolidation or a boundary line adjustment couldn't be done. In addition, Commissioner Oates commented that high- density housing should be located within the UDA. He said he could not support someone who hadjust created a Waal preservation tract within the existing UDA and then requests a rezoning on that same preservation tract. He thought the Commission should impose a ten -year restriction when a preservation parcel is created in the UDA, not exempt them from the restriction. Commission members agreed and questioned whether the preservation parcel should even be allowed in the UDA; they did not see any value to the County for allowing that kind of subdivision to occur in the UDA. Zoning Ordinance (Chapter 165), Section 165 -156 Definitions Mr. Cheran stated that the DRRS is recommending change to the current written definition of Full Screen and Landscape Screen; he said there was a typographical error and the definitions were reversed. He said that no new language was added and the error was corrected. No issues or concerns were raised by the Commission and they agreed the amendment was appropriate. Mr. Cheran said these proposed amendments would next be sent to the Board of Supervisors as discussion items. Frederick County Planning Commission Page 1914 Minutes of November 15, 2006 -15- • OTHER TIME FRAME FOR TABLED ITEMS Commissioner Oates said that in talking with the Planning Staff, it was mentioned that when the Planning Commission tables an item for only 30 days, it is sometimes difficult to prepare the paperwork and do notifications because of an insufficient amount of time. Commissioner Oates suggested that the Commission consider a 45 -day minimum for tabling items. Commission members agreed with the suggestion. ALLEGHENY ENERGY TRANSMISSION LINE Chairman Wilmot received information from Allegheny Energy regarding the 500 kv transmission line that is proposed from Pennsylvania to Loudoun County. She said there will be a public open house in Middletown on December 6, 2006, from 5:00 p.m. until 8:00 p.m., at the Middletown Elementary School. She said the public is invited and there will be displays and information available. ADJOURNMENT • There being no further business to discuss, the meeting adjourned at 9:30 p.m. by a unanimous vote. Respectfully submitted, M �I,LL ^✓1"ti� M. Wilmot, Chairman Lawrence, Secretary Frederick County Planning Commission Page 1915 Minutes of November 15, 2006