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HomeMy WebLinkAboutPC_11-19-08_Meeting_MinutesMEETING MINUTES OF THE 0 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 19, 2008. PRESENT: June M. Wilmot, Chairman/Member at Large; Roger L. Thomas, Vice Chairman/Opequon District; Richard C. Ours, Opequon District; Christopher M. Mohn, Red Bud District; Gregory S. Kerr, Red Bud District; Gary R. Oates, Stonewall District; Richard Ruckman, Stonewall District; H. Paige Manuel, Shawnee District; Lawrence R. Ambrogi, Shawnee District; Charles E. Triplett, Gainesboro District; George J. Kriz, Gainesboro District; Cordell Watt, Back Creek District; Roderick Williams, Legal Counsel; and Gary Lofton, Board of Supervisors Liaison. ABSENT: Greg L. Unger, Back Creek District STAFF PRESENT: Eric R. Lawrence, Planning Director; Michael T. Ruddy, Deputy Planning Director; Mark R. Cheran, Zoning & Subdivision Administrator; and Renee' S. Arlotta, Clerk. CALL TO ORDER & ADOPTION OF AGENDA i Chairman Wilmot called the meeting to order at 7:00 p.m. Commissioner Kriz moved to adopt the November 19, 2008 Planning Commission Agenda for this evening's meeting. This motion was seconded by Commissioner Ours and unanimously passed. MINUTES Upon motion made by Commissioner Oates and seconded by Commissioner Manuel, the Planning Commission unanimously approved the minutes of the October 1, 2008 meeting. COMMITTEE REPORTS Comprehensive Plans & Programs Subcommittee (CPPS) Commissioner Kriz reported that the CPPS discussed the CIP (Capital Improvements Plan) requests and forwarded a recommendation of approval to the Planning Commission. • Frederick County Planning Commission Page 2377 Minutes of November 19, 2008 -2- • Natural Resources Subcommittee Commissioner Kriz reported that the Natural Resources Subcommittee is moving forward on the final reviews of their proposal before sending it to various agencies for comments. Historic Resources Advisory Board (HRAB) - 11/18/08 Mtg. Commissioner Oates reported that the HRAB had a guest speaker, the Chairman of the Frederick County Planning Commission, June Wilmot, who presented the revised layout for the History Section of the Comprehensive Policy Plan. He said the HRAB had the opportunity to review the latest format. Commissioner Oates added that following Ms. Wilmot's presentation, there was discussion on getting comments back in and having everything ready to go in January. He said the HRAB also discussed the history section a little further. Winchester Planning Commission (WPC) - 11/18/08 Mtg. Commissioner Ours reported that the Winchester Planning Commission acted on several public hearings: 1) Approved a request by Shenandoah Mobile Company to construct a wireless communications tower 40 at 2625 Valley Avenue. Commissioner Ours pointed out this was either their second or third tower that for all intents and appearances is a flag pole; he said it flies a flag and it's a cellular tower. 2) Approved an ordinance amending one of the articles of the Winchester Zoning Ordinance pertaining to exclusions in the Historic District. He said the ordinance basically states that if someone has Federal or State approval to do something in the Historic Area, it will not require additional local approval. 3) Modified a section of the ordinance to extend special exemptions from off -street parking and loading requirements for the West Clifford Street area. 4) Administrative authorization for the Winchester Medical Center's East parking Garage; improvements to the Handley Bowl at Handley High School; and improvements to Pall Mall Corners on Pall Mall Street. CITIZEN COMMENTS Chairman Wilmot called for public comments on any subject not on the Commission's agenda for this evening. No one came forward to speak. PUBLIC HEARING Rezoning Application #04 -08 of Red Hawk Estates, submitted by Painter- Lewis, PLC to rezone 85.3 acres from RA (Rural Areas) District to RP (Residential Performance) District with proffers for up to 240 • residential units. The properties are located north and south of Sulphur Spring Road (Rt. 656) and east of Greenwood Road (Rt. 655). The properties are further identified with P.I.N.s 65 -A -86, 65- A- 86B,65 -A- 98, 65 -A -102, and 65- A -102A in the Shawnee Magisterial District. Frederick County Planning Commission Page 2378 Minutes of November 19, 2008 — 3 — • Action — Tabled Indefinitely at Applicant's Request Chairman Wilmot asked the Planning Commission's legal counsel, County Attorney Roderick Williams, to review the legal issues faced this evening with regard to the applicant's request to table and the Commission's prerogative concerning that request. Mr. Roderick Williams, Frederick County Attorney, stated the Commission originally heard this rezoning application on August 6, 2008 and tabled the application for 45 days following a failed motion to deny the rezoning request. The Commission then received a letter, dated August 29, 2008, from the applicant requesting that the application be tabled further. Mr. Williams said the Commission passed a motion on September 17, 2008 granting the applicant's request, which rolled the matter over to tonight's meeting, November 19, 2008, Mr. Williams said the applicant has now requested a further tabling. He said this matter is governed directly by the Commission's own bylaws and specifically Bylaws Section 8 -3 -9 -2 which states, "the applicant shall be permitted to request that an agenda item be tabled from a scheduled Planning Commission meeting one time." Mr. Williams believed that the applicant's request was, therefore, beyond the scope of the Commission's own bylaws. Mr. Williams continued, stating how this situation raised further issues as far as State Law and the Frederick County Code. He said State law does not necessarily require the Commission act or not act on this matter this evening. However, the State law and the Commission's Bylaws require the Commission to act on the matter this evening because there was no further extension allowed under the Commission's Bylaws for a tabling. He said reference has been made to the 90 -day provision of the County Code and the corresponding 100 -day provision of State Law which simply sets out the time within which the Commission must act; he said the Commission is certainly within its rights to decide to act sooner than what is stated within the bylaws. Mr. Williams next read Section 15.2 -22 -21 of the Virginia Code, which explicitly gives the Commission the power to • govern its own affairs. Deputy Planning Director, Michael T. Ruddy, said it would appear as though there has been ample opportunity for the applicant to present the Planning Commission with a thorough and complete application. He said this application was informally presented to the County for review in early 2005 and the application was officially submitted to the County on October 10, 2006. He said since that time, the applicant had been working to provide the Commission with as complete of an application as possible. Mr. Ruddy said the result of this effort was presented at the Commission's August 6, 2008 meeting. He stated that staff has not been provided any further changes to this application since the Commission's August 6, 2008 meeting. Mr. Ruddy continued, stating that while the property is located in the UDA, many of the impacts associated with this rezoning request have not been mitigated by the applicant. The impacts on County facilities have not been adequately addressed; in particular, the impact to the adjacent Sheriff Department's shooting range facility. Questions also remain with the Development Impact Model values and the triggers associated with the proffer statement language. In addition, the transportation impacts associated with the request are not fully addressed and the proffered transportation improvements aimed at mitigating the impacts are not sufficient to mitigate the anticipated impacts. Mr. Ruddy explained that the transportation improvements have not been provided in the same scale as the proposed development and these transportation issues remain a primary concern. Of particular concern was the lack of an agreement with the adjoining property owners to provide for a Charing Drive connection and access to Route 50. Mr. Stephen L. Pettler, Jr., with Harrison & Johnston, PLC, was representing Turner Enterprises, LLC, applicant for the Red Hawk Estates rezoning application. Mr. Pettler said prior to writing the August 29, • 2008 letter to the Commission, he personally called Mr. Ruddy to explain the fact that discussions with Arcadia and Turner Enterprises to address the transportation impacts required more time. He said he and Mr. Ruddy Frederick County Planning Commission Page 2379 Minutes of November 19, 2008 -4- . discussed the fact the Commission had tabled the matter on their own motion and he asked Mr. Ruddy what was needed to have the application remain tabled. Mr. Pettler explained that the two principals at Arcadia were going back to their home office in California for a number of weeks and there were other issues involved which made them physically unable to discuss matters. Mr. Pettler referred the Commission to his letter, dated August 29, 2008, and said the letter is carefully worded and asks for the application to remain tabled on the motion of the Commission made on August 6, 2008. He also pointed out the memorandum prepared by Mr. Ruddy for the September 3, 2008 hearing in which this matter was brought to the Commission for consideration. Mr. Pettler said Mr. Ruddy's memo also states that the application was to remain tabled. Mr. Pettler next referred to the September 3, 2008 minutes of the Planning Commission in which this matter was brought up and addressed at the end of the meeting by the Chairman. He said the minutes state, "The Chairman announced that the representatives for Red Hawk Estates have requested a postponement of their September 17, 2008 return to the Planning Commission until November 19, 2008. Upon motion made by Commissioner Thomas and seconded by Commissioner Kriz, the Planning Commission voted unanimously to postpone consideration of Red Hawk Estates until November 19, 2008." Mr. Pettler said the Commission may consider this a very fine distinction, but it was not meant to be a tabling request by Turner Enterprises and it was upsetting to discover within the last two weeks that it was being interpreted as a tabling request. Mr. Pettler next provided further details on his conversations with Mr. Ruddy and the dates the application was scheduled to be on the Commission's agenda. Mr. Pettler said he was not at liberty to publicly discuss the nature of negotiations between Arcadia and Turner Enterprises because they have changed dramatically and it would be prejudicial to both parties to elaborate. He said it will not change the number of units or uses, impacts or traffic; however, it would place the application in a different context. Mr. Pettler said they cannot change the proffers because they have not finalized this agreement with Arcadia. He said this all occurred within the last few weeks and the applicant is not ready tonight to go forward. • Mr. Pettler continued, stating the reasons why he disagreed with Mr. Williams' interpretation of the Planning Commission's Bylaws and he referred to several sections of the Bylaws which he believed supported his views. Referring to Section 8- 3 -9 -3, Mr. Pettler said if a matter has been tabled for an unspecified period of time and the applicant has waived their right to be heard within 90 days, two things are required: 1) the applicant asks in writing to be placed back on the agenda; and 2) the application is re- advertised for a public hearing. He believed it was clear the applicant had not asked to be placed on this evening's agenda. Mr. Pettler said he and his client discussed withdrawing the application; however, the reason why that is not a viable alternative is it would necessitate a re- filing fee, which for this case was in excess of $12,000. He said it would also necessitate a new traffic impact analysis even though all the other engineering aspects of this project would remain unchanged. speak: Chairman Wilmot next called for public comments and the following persons came forward to Mr. Walter Cunningham, a resident at 1366 Greenwood Road in the Shawnee District, expressed safety concerns associated with increased traffic and the 90- degree turns on Greenwood Road. He said an earlier plan for Red Hawk Subdivision showed a straight Greenwood Road coming to a "T" intersection with Sulphur Springs Road. However, when this same rezoning came before the Commission some 90 days ago, he was dismayed to see a curved Greenwood Road back in the plan leading to a planned Charming Drive. Mr. Cunningham said he has lived near these 90- degree turns since 1963 and has seen many accidents due to the sharp curves, even accidents with fatalities. He said the citizens must live with this curved and over - traveled road, with the added burden of traffic generated by this subdivision. Mr. Cunningham believed that safety issues and infrastructure needed to be corrected as the development occurs. He commented that gasoline tankers are now traveling this road and it takes the entire road to bring a tanker around these curves. He was concerned about the possibility of a vehicle and tanker collision, which could result in a fire. He commented that a fire from a tanker Frederick County Planning Commission Page 2380 Minutes of November 19, 2008 -5- of this size would take several houses, and his house could be one. Mr. Cunningham asked the Commission to take a close look at the safety of this application. He urged the Commission to vote for denial based on the lack • of safety awareness in the proposal. Mr. John Shuman, a resident at 1365 Greenwood Road in the Red Bud District, said he spoke about the traffic safety issues in August and the need for straightening Greenwood Road. He said afterward, he noticed the County's road plan had changed and Greenwood was supposed to connect with Champing Drive. Mr. Shuman said if Greenwood Road was straightened, it would solve a major problem. He said Greenwood Road is frequently traveled and he asked the Commission to look at how many accidents have taken place along this section of Greenwood Road. He read a section of the Comprehensive Policy Plan which stated, "... specific information on accidents, at particular intersections and along identified corridors, should be obtained and considered as a part of the reviewing process for land development proposals." No one else wished to address the Commission and Chairman Wilmot closed the public comment portion of the meeting. Commissioner Thomas said the Commission has an application that is incomplete and both the applicant and the Commission are not satisfied with it. He said if the Commission takes action and sends it forward to the Board, the only recommendation would have to be denial. He said the application could then be substantially different from when the Planning Commission reviewed it. Commissioner Thomas asked if there was a down side to tabling this application for 90 days, since the applicant waived the 90 -day rule. Commissioner Oates said the applicant knew the application was not ready at the August meeting, but wanted to proceed and that was one of the reasons he voted against tabling. Commissioner Oates said he did not like to see indefinite tabling and this application has been pending for two years. He believed it was time to put it to rest and send it to the Board. • Commissioner Kriz asked if the Board had the option to send an application back to the Commission when considerable changes are made. He asked whether a motion could be made by the Commission stating if the application goes through considerable changes, the Board would send it back to the Planning Commission. Chairman Wilmot replied that the Board could perhaps look at the changes to see if it met the intent of what the Planning Commission was looking for. Commissioner Mohn stated that this situation exposes an unintended consequence of the Commission's Bylaws. He said when the Commission reviews the Bylaws again this year, it needs to carefully consider how some of these things can manifest themselves. He questioned the issue of being mandated to send something forward that conceivably there is time to correct. Commissioner Mohn said this situation was a little disconcerting; he said if the Commission doesn't have any wiggle room, it's because it didn't provide for any. Commissioner Manuel believed that no matter which recommendation the Commission would send forward, this would come back as an incomplete application. He believed there was an alternative to table it for 45 days, but he was not clear whether it would be the action of the applicant or the Commission. There next ensued some discussion about whether the applicant had agreed to waive his 90-day tabling allowance. Mr. Pettler said it was his and his client's intent to waive the 90 -day rule. He believed the Commission accepted this applicant's request because on August 6, 2008, the hearing was set for September 17, and then moved to November 19, 2008, which is more than 90 days. He said clearly, there has been a waiver by the applicant on the 90 -day rule because he was present this evening. • Frederick County Planning Commission Page 2381 Minutes of November 19, 2008 • Commissioner Triplett asked Mr. Petler if 45 days would make much difference as far as his client's application. Mr. Petler replied he didn't think it would be a sufficient amount of time because of the holidays and they were dealing with a California company. There next ensued further discussion among the Commissioners on when the 90 -day rule and one -year rule begins. Commissioner Thomas asked if the Planning Commission could table the application indefinitely based on a request from the applicant with a provision in the tabling that it will not be brought back to the Planning Commission before the applicant requests it be put back on the Planning Commission agenda. He asked if this could be a legitimate motion. Mr. Williams believed that if the applicant agreed, it would seem to be within the Commission's purview. Mr. Petler stated that the applicant would waive and does waive the 12- month, Section 165 -11, requirement. In addition, Mr. Petler believed six months was plenty of time because of the context in which the application was going to be in; however, he was hesitant to name a date because of the unforeseen nature of what has already occurred. Commissioner Manual made a motion to table Rezoning Application 404 -08 for an indefinite period of time at the applicant's request. This motion was seconded by Commissioner Thomas and passed by a majority vote. BE IT RESOLVED, that the Frederick County Planning Commission, by a majority vote, does hereby table Rezoning Application 404 -08 of Red Hawk Estates, submitted by Painter - Lewis, PLC to rezone 85.3 acres from RA (Rural Areas) District to RP (Residential Performance) District with proffers for an indefinite period of time at the applicant's request. i The majority vote was as follows: YES (TO TABLE) Mohn, Kerr, Triplett, Kriz, Ours, Thomas, Ruckman, Manuel, Ambrogi, Wilmot NO: Watt, Oates (Note: Commissioner Unger was absent from the meeting.) OTHER PLANNING COMMISSION BYLAWS Chairman Wilmot raised the issue of communication between applicants and the Planning Commission with regards to tabling or other actions applicants may seek in terms of their applications. Commissioner Thomas said that one of the original purposes for including the 90 -day time frame for tabling in the Bylaws was because there was a time when a number of applicants were coming in and depending on how many citizens were present to speak in favor or in opposition to their application, they would seek a tabling. Commissioner Thomas said they would do that three or four times until finally, they wore the public out and the public stopped coming to the meetings and it appeared no one was against the application, • Commissioner Thomas said the 90 days served a purpose at that time, but the Commission may have to re- evaluate it again because serving the one purpose may have hampered another purpose. He still believed something needed to be within the bylaws to prevent an applicant from just continually delaying an application. Frederick County Planning Commission Page 2382 Minutes of November 19, 2008 — 7 — u ADJOURNMENT Upon motion made by Commissioner Kriz and seconded by Commissioner Ours, the meeting adjourned at 7:50 p.m. by a unanimous vote. Respectfully submitted, June ilmot, Chairman Eric R. LaNvrence; Secretary E • Frederick County Planning Commission Minutes of November 19, 2008 Page 2383