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PC_04-16-08_Meeting_MinutesMEETING MINUTES OFTHE FREDERICK COUNTY PLANNING COMMISSION Held in the Board Room of the Frederick County Administration Building at 107 North Kent Street in Winchester, Virginia on April 16, 2008. PRESENT: June M. Wilmot, Chainnan/Member at Large; Roger L. Thomas, Vice ChairmaiJOpequon District: Richard C. Ours. Opequon District; Cltristopher M. Molm, Red Bud District; Gregory S. Kerr, Red Bud District, Gary R. Oates, Stonewall District; Cordell Watt, Back Creek District, Greg L. Unger, Back Creek District; Lawrence R. Ambrogi, Shawnee District; Charles E. Triplett, Gainesboro District; George J. Kriz, Gainesboro District; Gary Lofton, Board of Supervisors Liaison; and Roderick Williams, Legal Counsel. ABSENT: Richard Ruckman, Stonewall District: H. Paige Manuel, Shawnee District; STAFF PRESENT: Eric R. Lawrence, Plamung Director; Mark R. Chcran, Zoning & Subdivision Administrator; Candice E. Perkins, Senior Planner; and Renee' S. Arlotta, Clerk. CALL TO ORDER & ADOPTION OF AGENDA Chairman Wilmot called the meeting to order at 7:00 p.m. Upon motion made by Conmussioner Kriz and seconded by Commissioner Triplett, the Planning Commission unanimously adopted the agenda for the April 16, 2008 meeting. MINUTES Upon motion made by Commissioner Kriz and seconded by Commissioner Triplett, the meeting minutes of March 5, 2008 were unanimously approved as presented. COMMITTEE REPORTS SIC - NAICS Work Group Commissioner Oates reported the SIC -NAICS Group is working on the M1 (Industrial Linuted) District section of the zoning ordinance. He said after lengthy discussion, the group decided to pursue creating a zoning district between B3 and M 1, which is tentatively called OM (Office Manufacturing). Connnissioner Oates said this new zoning district would work well with what is planned for the Route 277 Study. Frederick County Plaiming Commission Page 2232 Minutes of April 16, 2008 -z- • Route 277 Triangle & Urban Center Land Use Study 04/14/08 Mtg. Commissioner Mohn reported that the committee forwarded a recommendation to accept the working group's recommended policies and the land use map. He said the recommended policies and map will be forwarded to the Planning Commission next month. Comprehensive Plans & Programs Subcommittee (CPPS) — 04/14/08 Mtg. Commissioner Kriz reported that the CPPS recommended approval and forwarded the Route 277 Triangle & Urban Center Land Use Study. In addition, the CPPS set up the standing committees with Community Facilities being chaired by James W. Golladay, Jr.; the Comprehensive Plans being chaired by John Light; and the Community Area Studies being chaired by Christopher M. Mohn. Environmental Subcommittee Chairman Wilmot reported that the Environmental Subcommittee has been meeting every other week since December. She said the subcommittee is anxious to begin reviewing policies and structure for that • particular portion of the Comprehensive Policy Plan. Historic Resources Advisory Board (HRAB) — 04/15/08 Mtg. Conunissioner Oates reported that the HRAB reviewed the final draft of their work for the Comprehensive Policy Plan and members will proofread the final draft and email back to staff, if there are any changes. Otherwise, it will be forwarded to the Comprehensive Plans & Programs Subcommittee (CPPS) for review and inclusion in the Comprehensive Policy Plan. Commissioner Oates also reported that Angela Crone, Planning Technician, provided a preview of the web page she created for the HRAB and members were pleased with the product. Commissioner Oates said that Ms. Crone will be leaving the County's employment at the end of the month, but Amber Powers, Planner I, will be appointed to fill the vacancy for the HRAB, beginning in May. City of Winchester Planning Commission (WPC) — 04/15/08 Mtg. Commissioner Ours reported that the WPC approved a conditional use permit for a nightclub at 932 Berryville Avenue. In addition, the WPC approved the rezoning of several properties at 633 Cedar Creek • Grade, the office property behind the CVS Pharmacy, which involved both the Corridor Enhancement District and Frederick County Planning Commission Page 2233 Minutes of April 16, 2008 -3- a PUD Overlay, and this rezoning will allow residential to be included with the existing commercial. He commented that the intended use is residential apartment buildings and luxury condominiums. Commissioner Ours said the WPC also approved a test amendment to clarify the zoning ordinance as it pertains to the defuvtion of fences and accessory structures with the intent of bringing those structures and fences into compliance with the code. CITIZEN, COMMENTS Chainnan Wilmot called for public comments on any subject not on the Commission's agenda this evening. No one came forward to speak. PUBLIC HEARING Conditional Use Permit 401 -08 of David Plank for a kennel at 244 Duck Run Lane. This property is zoned RA (Rural Areas) District and is identified with P.I.N. 70 -1 -40 in the Back Creek Magisterial District. Action — Recommended Denial • Zoning and Subdivision Administrator, Mark R. Cheran, reported that keimels are a permitted use in the RA (Rural Areas) District with an approved conditional use permit (CUP). He said the proposed use will take place on an 11.45 -acre parcel with an existing residence. The property is surrounded by RA -zoned properties with natural woodlands and the nearest dwelling is greater than 150 feet from the proposed use. Mr. Cheran reported that the proposed kennel will be for breeding of no more than 25 show dogs which will be housed on the property and within the dwelling. He said the applicant has proposed a I0 -foot by 10 -foot outdoor pen to house the dogs in good weather and has future plans for a ten -run, 28 -foot by 15 -foot indoor kennel. A six -foot high board -on -board fence is platmed to screen the existing and future kennel nuns. Mr. Cheran reported that the majority of kennel business is handled over the intemet and telephone, the applicant will deliver the dogs to the customers off -site; the applicant requests the ability to have no more than three customers per week. Mr. Cheran proceeded to show slides of Mr. Plank's property. He next read a list of revised recommended conditions for the proposed use. Commissioner Thomas suggested the word, "indoor; ' be added to recommended Condition 44 to clarify that canines shall be confined indoors by 9:00 p.m. Mr. David P. Plank, the applicant, stated that lie breeds show dogs. He said the 25- canine limit Will allow for puppies when his breeding female dogs have litters. Mr. Plank said they generally Brut themselves to ten adult dogs. Commission nnembers asked the applicant for clarification of his kennel business and whether he boards or breeds dogs. Mr. Plant: explained this is a hobby kennel showing German Shepherds. He said occasionally, someone he previously sold puppies to will ask him to look after their dog for a few days or an • owner will ask him to do companion dog training and he will have their dog on the property for as long as three weeks. Frederick County Planning Commission Page 2234 Minutes of April 16, 2008 -4- • Commission members asked the applicant if the dogs roamed on neighboring properties. They inquired if the applicant was comfortable with the reconunended conditions and if the applicant would have an issue with an additional condition limiting the number of boarded dogs not owned by the applicant. Commission members asked if the ten existing adult dogs were ohvned by the applicant. The applicant replied that lie owned the ten existing dogs. He said the entire property is fenced. Mr. Plank said the dogs not inside their home are secured inside a I 0 -foot by 10 -foot chain -link fence; lie said the dogs were too valuable to let roam on someone clse's property. Mr. Plank had no problems with the recommended conditions and he had no objections to the addition of a condition limiting the number of dogs not ohvned by the applicant that would be boarded on the property. Chairman Wilmot next called for citizen comments and the following persons came forward to speak: Mr. Aaron Mitchell, II, a resident at 301 Duck Run Lane in the Back Creek District, said his property is 32 feet from Mr. Plank's property and he opposed the kennel for eight primary reasons, which included: the legality of the conditional use hearing itself, the safety and welfare of the conununity; the affect on quality of life, the environmental impact to Duck Run and local wildlife: the degenerative affect on property values, road maintenance, infringements on privacy; and the acreage of the applicant's property. Mr. Mitchell proceeded to elaborate on each of the points raised. He said Mr. Plank has been operating ]its kennel in violation of the County Code and he didn't think a public hearing for a CUP could be held if the applicant was in violation. In regards to safety and welfare, Mr. Mitchell said Mr. Plank's website seems to indicate the dogs are bred for personal protection and he had safety concerns for his family. Mr. Mitchell said he had observed the trainer having difficulty controlling the dogs and dogs were roaming before the applicant constructed the additional fence. Mr. Mitchell said he has lived at this location for 35 years and has worked hard to build a home in the country for his family to live safely and enjoy: lie did not enjoy being alongside 40 -plus barking dogs. Mr. Mitchell said he and his neighbors have lived at this location for a very long time and the applicants havejust recently moved into the area. He had environmental concerns about dog waste being disposed of down the hill towards Duck Run. a native trout stream. He said the Federal Government has gone to great lengths in this area by providing tax credits and educating fanners about keeping livestock waste away from Duck Run. In regards to road maintenance. Mr. Mitchell said Duck Run Lane is a private road and to his knowledge, over the last ten years only lie and his parents have provided the labor and funds for road maintenance. He cotwnented they added speed bumps to slow down the applicant's customers, delivery trucks, and carpenters. Mr. Mitchell noted that although the applicant's plat shows eleven acres, the parcel has only about one- and - three- quarter acres of usable land because of a 50- degree slope that falls into Duck Run with 100 feet of riparian area on each side. Mr. Mitchell said he lives at the end of Duck Run Lane, past Mr. Plank's house, and lie was aggravated with people coming to his house looking for the Planks. He said Mr. Plank's clients are from out of the state and have no respect for his privacy. He said he is weary of hearing dogs barking late into the evening, lie gets up at 4:00 a.m. for work and does not want to hear dogs barking at 9:30 or 10:00 p.m. at night. Mr. Mitchell pointed out that the photographs shown by the staff were taken from the road and do not show the kennel from the left side, the portion facing his property. He said there is no screening on his side and he looks into four kennels and two old sheds from his front porch. He commented that Mr, Plank's dogs bark at him when he is on his own property. Mr. Mitchell said an additional issue that was not addressed by the Planning Department was the retail aspect ofthis busmess. He said the applicant sells dog food and puppy supplements and he questioned the number of vehicles coining in to purchase these products. In conclusion, Mr. Mitchell said he was disappointed with the efforts of the Planning Department in presenting this CUP and as a citizen of Frederick County, he felt let down. Mr. Kirbv Lloyd, a resident of the Back Creek District. believed the proposed kennel at this location was not in the realm of what a CUP should be. He said the Star Tannerv/ Mt. Falls area is a small hamlet and he was concerned about noise from barking dogs. He also had safety concerns with breeding and housing dogs known for their ferocity in a rural area. Mr. Lloyd was opposed to the CUP. Frederick County Planning Commission Page 2235 Minutes of April 16, 2008 -5- • Mr. Dan Monahan, a resident of the Back Creek District. reiterated the concerns of the previous two speakers regarding noise and the disposal of dog waste. Mr. Monahan was opposed to the CUP. Ms. Brenda Mitchell, adjoining property owner and resident of the Back Creek District, read a letter from Ms. Helen Keller, a resident in this area who could not be present this eventing, as follows: "To Whom It May Concern: l understand that a family in [lie Duck Run subdivision is trying to get a rezoning to raise and sell dogs. I have lived in this subdivision for 27 years. I am 71 years old and 1 just don't think this should be allowed. The traffic and the noise will disturb everyone concerned. I live in the first house going in. Also, there will be wear and tear on the road and children to be considered. Thank you for your concern in this matter." Mr. Aaron Mitchell. Sr., a resident at 200 Duck Run Lane in the Back Creek District, said he bordered Mr. Plank's property on the eastern and southern sides, and owlied Lots 3, 8, 9, and 10. Both Mr. Mitchell and his wife were opposed to the CUP for a kennel. He said although the County is not bound by restrictive covenants within property deeds. the covenants of Duck Run Estates speak to the intent of the property. He said one of the covenants associated with the lots in Duck Run Estates states that."... the conveyed property shall be used for residential purposes only and for single - family dwellings." He said allowing a kennel to operate in this rural subdivision would deny the property owners the right to quiet and peaceful enjoymentoftheir homes and surrounding properties. He believed the continued operation of this business would be inappropriate and ,granting the CUP would negatively affect the intended use of Duck Run Estates. He said the access to Mr. Plank's property is by a 40 -foot right -of -way casement which is privately maintained. He said both he and his son are the primary caretakers of that lane and they should not be required to provide road maintenance for Mr. Plank's kennel business. He stated that limiting customers to three per week is not an enforceable condition. Mr. Mitchell remarked that businesses create more than just customers; he said there will be deliveries. Mr. Mitchell believed the kennel business would devalue his home and property, as well as that ofhis neighbors; he said no one • will want to live next to the sights, sounds, and smells associated with 25-plus German shepherds. He was also concerned about safety and said much can be learned about the nature of the kennel by viewing the applicant's web site. He said the website shows the existing facilities and has dog - training videos showing obedience, hold and bark, first bite work, and long attack; he found the contents of the videos disturbing. Because of the dogs next door, his wife no longer feels safe walking on their property with the grandchildren. He said the fence around Mr. Plank's yard is probably 42 -48 inches high; he believed the dogs had the ability to go over the top of the fence. Mr. Mitchell asked the Commission to recommend denial of the request. In summary_ , he said approving this CUP for a kennel will violate the intended use of their rural subdivision: it would have a negative impact on property values, it would increase traffic and maintenance requirements of Duck Run Lane; and it would threaten the safety of Duck Run Estates' residents and visitors. No one else wished to speak and Chairman Wilmot closed the public comment portion of the hearing. Mr. Cheran clarified that recommended Condition 42 states that no more than 25 canines (dogs or puppies), owned by either the applicant or others, will be allowed on the propent with this CUP. Commissioner Triplett asked if the County Code had a limit on the number of dogs an individual could own. Mr. Cheran said the Frederick County Code has no limitations on the number of dogs an individual can own, either with or without a kennel business. Mr. Cheran's determination was that Mr. Plank was conducting a business and a CUP was required. He said the applicant is boarding and selling dogs for compensation and in the absence of a CUP, he would be in violation. Mr. Cheran said the retail component of the business, selling dog food and supplements, had not been discussed previously with the applicant. • Commissioner Thomas commented that the agenda material refers to the breeding of show dogs. He believed there was a difference between show dogs and those trained for personal protection. Commissioner Thomas questioned if dog training is allowed at kennels and if the ordinance distinguished between show -dog Frederick County Planning Commission Page 2236 Minutes of Aprit 16 2008 obedience training and attack -dog training. He also asked for clarification on the height of the fence. Mr. Cheran replied that dog training would be permitted at a kennel. However, the zoning ordinance does not distinguish between the two types of training. He said the County Code only references vicious dogs and licensing of dogs. Commissioner Thomas asked if an internet business, in which customers do not come to the business owners' door_ would be considered retail. Mr. Cheran replied that particular situation would be treated as a home occupation in the zoning ordinance. Mr. Cheran pointed out that from the complaints heard this evening, there was more going on with this property than just internet service. Mr. Plank, the applicant, returned to the podium to answer questions from the Commission. Commissioner Unger asked Mr. Plant: if lie sold dog food and accessories from his horne. Mr. Plank replied that he orders dog food in bulk and when he sells puppies, he offers the dog food. Mr. Plank said the dog food and supplements would be available from him. He stated that lie does not raise personal protection dogs or train attack dogs. Mr. Plank explained the only training that takes place on his propem is basic obedience and he described the training process to the Commission. Chairnnan Wilmot inquired about the disposal of dog waste. Mr. Plank replied that they use a compost pile. Mr. Plank said that Back Creek is a long way from the bottom of the drop out to the creek. He said the DEQ (Department of Environmental Quality) told him as long as waste was not thrown into the creek, there should be no issues. Conunissioner Kerr referred the applicant to Condition #3, "All canines kept at the kennel shall • be controlled so as not to create a nuisance by any roaming free or barking." Commissioner Kerr asked Mr. Plank how he planned to keep 25 dogs from barking or creating a nuisance. Mr. Plant: said he takes the neighbors' concerns seriously and will do whatever he can to prevent the dogs from becoming a nuisance. He added that they were also willing to contribute to the upkeep of the road. Commission members commented that the deed covenants were a private issue and not enforceable under the County Code. Conunissioner Unger believed the neighborhood would have better control of the applicant's operations if a CUP was granted; he said if the CUP was turned down, the dogs would still be on the property and the issues raised would continue. Commissioner Unger next moved to approve the CUP with the conditions recommended by the staff. This motion was seconded by Commissioner Wall. Conunissioner Thomas had concerns with the German Shepherds going over a four -foot high fence; he preferred to see something in the conditions stating the dogs would be in a secure structure with a minimum six -foot high fence. Commissioner Unger agreed and amended his motion; Conunissioner Watt agreed with his second. Responding to the discussion on the number of dogs on the property, Commissioner Mohn questioned if the business facilitated the number of dogs on the property. He pointed out that the Commission is considering the business, not the number of dogs. Commissioner Mohn stated that the fundamental question here is whether or not it is appropriate to conduct this particular business at this location, relative to the impacts. He said he had concerns if this particular business would be appropriate and by approving the CUP, the Commission would be facilitating the continuation of mama of the impacts that will be difficult to control. Planning Director, Eric R. Lawrence, agreed that the Commission should be considering the • business component, which is the breeding, selling, and training of dogs. He said if the CUP, is not approved and the business activities continue, then the County could lake the property owner to court. He said the County Code does not regulate how many pets an individual can own. Frederick County Planning Commission Page 2237 Minutes of April 16, 2008 -7- • Conunissioner Kriz asked the Corrunission's legal counsel if the surrounding property owners within Duck Run Estates have recourse through the covenants to stop the business at this time. The County Attorney, Roderick Williams, replied that the surrounding property owners may indeed need to seek their own private legal counsel to resolve the dispute. Commissioner Unger said he would like to amend his motion to exclude the selling of dog food from the property. Conunissioner Ours inquired about amending Condition 44 to change the word, "inside," to "indoors." Chainnan Wilmot asked the applicant if he understood [lie changes to the recommended conditions as proposed and Mr. Plank said he did. Commissioner Kerr had concerns about how some of the recommended conditions could be policed. Chairman Wilmot called for the vote on Commissioner Unger's motion and Commissioner Watt's second to approve the CUP with the amended conditions as stated. The motion was defeated by the following mljority vote: YE (TO A PPROVE : Ours, Thomas, Ambrogi, Watt, Unger NO: Molm, Kerr, Triplett, Kriz, Oates, Wilmot • (Note: Conunissioners Manuel and Ruckman were absent from the meeting.) A new motion was made by Commissioner Triplett and seconded by ConnnissionerKerr to deny the CUP. The motion for denial was passed by a majority vole. BE IT RESOLVED, that the Frederick Count\ Planning Commission does hereby recommend denial of Conditional Use Pemnit #01 -08 of David Plank for a kennel at 244 Duck Run Lane. The majority vote for denial was: YES (TO DENY) Moh n, Kerr, Triplett, Kriz, Oates, Thomas, Wilmot NO: Ours, Ambrogi, Watt. Unger (Note: Commissioners Manuel and Ruckman were absent from the meeting.) PUBLIC MEETING Master Development Plan 1403 -08 of Artillery Business Center, submitted by Patton, Harris, Rust & Associates, PC, for industrial uses on 58.7 acres; zoned MT (Light Industrial). The property is located • east and adjacent to Shady Elm Road, approximately 1,500 feet south of Route 37. The property is further identified with P.I.N. 75 -A -I in the Back Creek Magisterial District. Frederick County Planing Commission Page 2238 Minutes of April 16, 2008 • Action — Recommended Approval Senior Planner, Candice E, Perkins, reported that this master development plan (MDP) application is a proposal to develop 58 acres, which was rezoned to the M 1 (Light Industrial) Zoning District in 2008 with proffers to accommodate industrial land uses. Ms. Perkins said the site will have access off Shady Elm Road at three separate points; the main access point to the development will be from the new collector road. Ms. Perkins proceeded to review the proffers that were offered with the rezoning of die property, which included: the dedication of additional right -of -way along Shady Elm Road; widening of the existing northbound lane along the property's Shady Elm frontage; the design of a future east -west collector road; provision of an 80 -foot tract of land across the adjacent properly for the continuation of the east -west collector road; and the provision of a monetary contribution of $250,000 for the design and/or construction of the future collector road or for any other transportation improvements deemed necessary by Frederick Comity or VDOT. Ms. Perkins next described the proposed buffers along Shady Elm Road and the new collector road. She concluded by stating that the MDP was consistent with the requirements of the zoning ordinance and has addressed all staff's concems; the MDP was also in confonuance with the proffers from the rezoning. A member of the Commission asked Ms. Perkins if all of staff concerns had been addressed. Ms. Perkins replied yes, she said the MDP was in a form that was administratively approvable. Mr. Patrick Sowers with Patton. Harris, Rust & Associates, Inc., the design and engineering fine representing the applicant, yvas available to answer questions. Chaimuan Wilmot called for citizen conunents: however, no one came forward to speak. Chairman Wilmot then closed the public comment portion of the meeting. • No other issues or concerns were raised. Upon motion made by Commissioner Unger and seconded by Commissioner Mohn. BE IT RESOLVED. That the Frederick County Planning Commission does hereby unanimously recommend approval of Master Development Plan 403 -08 of Artillery Business Center, submitted by Patton, Harris, Rust & Associates, PC, for industrial uses on 58.7 acres, zoned M 1 (Light Industrial). (Note: Commissioners Ruckman and Manuel were absent from the meeting.) OTHER Committee Appointments Chairman Wilmot appointed Joe Wilder, Deputy Director of Frederick Comity Public Works; Patricia Ridgeway, Director of Handley Regional Library; and James Doran. Director of Frederick Comity Parks & Recreation Department, to the Conmumity Facilities subgroup of the CPPS (Comprehensive Plans & Programs Subcommittee). Chairman Wilmot also appointed Mr. Evan Wyatt to the Community Area Plans subgroup of the CPPS. • Frederick Coumq Planning Commission Page 2239 Minutes of April 16. 2008 • ADJOURNMENT There being no further business to discuss, the meeting adjoumed at 8:15 p.m. by a unanimous vote. Respectfully submitted. 2(� k+1. " Ju Iii 'C. Wilmot, Chairman euce. S ecretary • J Frederick County Planning Commission - Page 2240 Minutes of April 16, 2008