PC_08-19-09_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 August 19, 2009.
PRESENT: June M. Wilmot, Chainnan/Member at Large; Roger L. Thomas, Vice Chairman/Opequon
District; Brian Madagan, Opequon District; Gary R. Oates, Stonewall District; Lawrence R. Ambrogi, Shag +nee
District; H. Paige Manuel, Shawnee District, Charles E. Triplett, Gainesboro District, George J. Kriz, Gainesboro
District; Greg L. Unger, Back Creek District; Kevin O. Crosen, Back Creek District; Gregory S. Kerr, Red Bud
District; Christopher M. Moles, Red Bud District, Roderick Williams, Legal Counsel, and Gary Lofton, Board of
Supervisors Liaison.
ABSENT: Richard Rucktman, Stonewall District
STAFF PRESENT: Eric R. Lannmence, Planning Director; Michael T. Ruddy, Deputy Planing Director, Mark
R. Cheran, Zoning & Subdivision Administrator, and Bev Dellinger, Clerk.
• CALL TO ORDER & ADOPTION OF AGENDA
Chairman Wilmot called the meeting to order at 7:00 p.m.
Upon motion made by Commissioner Kriz and seconded by Commissioner Triplett, the Planning
Conmmission unanimously adopted the August 19, 2009 agenda for this evening's meeting.
MINUTES
Upon motion made by Connnissioner Kriz and seconded by Comm ssioner Thomas, the Planning
Commission unanimously approved the minutes of the July 15, 2009 meeting.
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COMMITTEE REPORTS
Comprehensive Plans & Programs Committee (CPPC) — 7/21/09 Mtg.
Commissioner Kriz reported that the CPPC met to consider the Rock Harbor CPPA
(Comprehensive Policy Plan Amendment) which was forwarded by the Board of Supervisors. Conmussioner Kriz
said the Board is going to pursue this proposal and Commissioner Oates will take the lead for this.
Cotmnissioner Kriz said a meeting has been scheduled for August 28, 2009, to discuss the proposal further.
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
Conditional Use Permit 05 -09 of Roger Jenkins for a public garage without body repair at 190 Boggess
Lane. This property, zoned RA (Rural Areas), is identified with P.I.N. 41 -10 -9 in the Gainesboro
Magisterial District.
• Action — Tabled for 45 Days
Zoning and Subdivision Administrator, Mark R. Cheran, reported that public garages without
body repair are permitted in the RA (Rural Areas) District with an approved CUP (conditional use permit),
provided that all repair work takes place entirely within an enclosed structure. Mr. Cheran said the proposed use
will be conducted in an existing structure, approximately 4,800 square feet in size, on a 77 -acre parcel. He said
the property and surrounding properties are zoned RA and are heavily wooded with natural screening for this
proposed use; the nearest buildings or dwellings are more than 100 feet from the property. Mr. Cheran said no
more than five vehicles awaiting repair will be allowed at one time and no employees will be allowed with the
proposed use. In addition, there will be no vehicle sales, nor unrelated repair sales, allowed by the CUP.
Mr. Cheran read a list of reconmmended conditions, should the Plamung Commission find the use
to be appropriate, as follows:
1. All review agency cont and requirements shall be complied with at all times.
2. The applicant will be limited to repairing only five vehicles on site at any time.
3. Vehicles awaiting repair shall be screened by an opaque fence.
4. Operation limited to the applicant, no employees.
5. All repair activities shall occur entirely within the enclosed structure.
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6. The applicant shall apply for and install an approved septic system within three years (September 9,
• 2012) of the approval date of this conditional use permit.
7. This conditional use permit shall be void and will be revoked, if Condition 46 is not implemented.
8. Any proposed business sign shall conform to the cottage occupation sign requirements and shall not
exceed four square feet in size and five feet in height.
9. Hours of operation shall be from 7:00 a.m. to 7:00 p.m.
10. An) expansion or change of use shall require a new conditional use penuit.
Mr. Cheran explained that some of the conditions have been amended as a result of
conversations between the staff and the applicant and he proceeded to review those amendments with the
Col unission. Regarding Condition 99, lie said the hours of operation have been amended to read, Hours of
operation shall be from 8:00 a.m. until 6:00 p.m. No repair activities shall rake place on Sundays. Mr.
Cheran said the applicant has agreed to install signs at the entrance to Boggess Lane which shall state, Children
Playing, l5n7ph Speed Limit, and Private Residence -No Trespassing. Mr. Cheran stated that installation of
these signs will be mandated by Conditions # 11 and # 12.
Commissioner Kriz asked if Boggess Lane was a private road and if there was an existing road
maintenance agreement. Mr. Cheran replied that Boggess Lane was a private road, however, Boggess Lane did
not have an existing road maintenance agreement.
• Commissioner Triplet inquired if the hours of operation included the times when vehicles could
be dropped off for repair or picked up. Conunissioner Triplett believed Condition 49, the hours of operation,
should be more specific so that vehicles are not dropped off or picked up outside of the designated 8:00 a.m. to
6:00 p.m, hours of operation. Commissioner Triplett expressed a concern with opening up a private road for use
by the public.
Referring to Condition 96, regarding the requirement for an approved septic system,
Commissioner Thomas asked if any type of approved health system could be installed within die three -year period
or if it was restricted specifically to a spray irrigation septic system. Mr. Cheran replied that any approved septic
system installed within the three -year period would satisfV this specific Health Department requirement.
Commissioner Oates commented that the application stated the property consisted of 88 acres
and the staffs report indicated the property was 77 acres. Mr. Cheran replied that the tax record indicated the
property was 77 acres.
Commissioner Ambrogi noted that when he visited the site, there appeared to be a gravel
easement going from Bethel Church Road to the applicant's property. Commissioner Ambrogi inquired if it
would be possible for the applicant's customers to use the gravel easement instead of Boggess Lane to avoid
disturbing the neighbors. Mr. Cheran said he discussed this with the applicant; however, the issue becomes one
of whether customers will be able to locate the applicant's business in terms of the signage. He said the code does
not allow a cottage occupation sign to be located on an adjoining propem.
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Mr. Roger Jenkins, the applicant and owner of the property, was present to answer questions
• Commissioner Unger asked Mr. Jenkins if the property owners had approached him about
participating in a road maintenance agreement and if he would be willing to share in the cost of road maintenance.
Commissioner Unger said upon talking with the neighbors, it seemed they didn't have a problem with Mr.
Jenkins' business, as long as all the neighbors were willing to share the expense of maintaining the road, he said
they were also concerned for the safety of the neighborhood children.
Mr. Jenkins said he received a letter yesterday afternoon regarding a road maintenance
agreement; however he and his wife have not yet had an opportunity to look over the information. He said he
wasn't saying no to the maintenance agreement, but he wanted to have time to think about the issues. Mr. Jenkins
said he has a deeded right -of -way on Boggess Lane and has a right to use it; however, he purchased the other
right -of -way to stay off Boggess Lane as much as possible. He said he would be satisfied using the other entry,
but questioned using it for his business.
Commissioner Thomas asked Mr. Jenkins if he did nominal automobile maintenance or if he
intended to do block modification, welding, cutting, or fabrication or use bred: machines. Commissioner Thomas
was concerned if there would be a lot of noise generated with this repair business. Mr. Jenkins replied that Ire
repairs automatic transmissions and he did not anticipate generating a lot of noise. He said he may possibly get
three vehicles per week and this was normal maintenance and equipment.
Commissioner Triplett asked Mr. Jenkins if he had a problem with having vehicle drop off and
pick up within the designated business hours. Mr. Jenkins replied no; he did not have a problem with it.
Chairman Wilmot asked the staff if it was typical to have maintenance agreements on private
• roads in the County. Planning Director, Eric R. Lawrence, stated it is not typical as far as a CUP; however, when
subdivisions occur, the County has notations placed on the plats to state that road maintenance is the property
owners' responsibility. He said the new ordinances state that property owners associations must be created. Mr.
Lawrence said the easement for Boggess Lane was created in the early 1990s and there were no requirements at
that time.
Chairman Wilmot called for public comments and the following persons came forward to speak:
Mr. Thomas Amari, a resident at 285 Boggess Lane, said the right -of-way down Boggess Lane
was never intended for conunercial use and his primary concern was safety. Mr. Amari said Boggess Lane is a
single lane, private road serving two subdivisions, one on the left and one on the right, and ten residential lots are
platted. He said that once all the housing is built, there will be anywhere between 20 -40 vehicles traveling this
single, one -lane road. Mr. Amari said there are hills and turns down Boggess Lane and there is poor visibility in
seeing vehicles or people. He was concerned about the safety of the neighborhood children while playing or
catching the school bus; he said the comer of Boggess Lane and Old Bethel Church Road is a designated bus stop
area. Mr. Amari suggested that Mr. Jenkins use his other existing access road, instead of Boggess Lane, and ifhe
does use Boggess Lane, he believed Mr. Jenkins should widen the road to enable two vehicles to pass each other.
Mr. Anhari said if Mr. Jenkins would do these suggestions, he would not be opposed to his CUP.
Ms. Diane Michael, 241 Boggess Lane, said she and her husband, Steve, were die first people to
purchase property on Boggess Lane; she said they purchased 10 acres in 1994. She said the deed covenants state
the property is not to be used for business. Ms. Michael said there was simply a dirt path and a road had to be
made. She said it was originally established that from the beginning point of Route 608 to the end of Parcel 8A,
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where Boggess Lane ends, the road would serve Parcels A through D, inclusive, and maintenance was to be
shared by those lot owners. Ms. Michael said the property oramers of Lots A, B, C, and D have historically shared
the cost of the road, without a maintenance agreement, because those were the only lots recorded to use Boggess
Lane. Ms. Michael said the property owned by Mr. and Mrs. Jenkins was not addressed in the Boggess Lane road
agreement recorded in the court house. She said that land was fanned before there were any structures on it and
the farmland was accessed through the entrance next to the Old Bethel Church. Ms. Michael said one of the
reasons she and her husband purchased their property was because it was on a private lane and they didn't have to
worry about safety for their children; she did not thin[: the road should be used for business use. Ms. Michael said
she believed she was speaking for all of the residents living on Boggess Lane that Mr. Jenkins should use his
easement road for his public garage business and this will alleviate many of the issues they have about Boggess
Lane. She said if the CUP goes forward as presented this evening and the applicant uses Boggess Lane for his
business, the residents would like consideration of the following issues: they are in the process of preparing a
road maintenance agreement and would like consideration of this CUP to be tabled until the property owners have
entered into an agreement. Secondly, the property owners are concerned about the safety of neighborhood
children; two vehicles cannot pass along Boggess Lane atone time and there are blind spots. Ms- Michaels said
the residents would like to have a 15mph speed limit sign to be installed at the entrance into Boggess Lane. In
addition, they would like a "watch for children" sign to be placed halfway down the entrance, about 500 feet. She
said the residents agree with the revised hours of operation, 8:00 a.m. to 6:00 p.m., with no work on Sundays.
Commissioner Kriz said there will be many more cars on Boggess Lane in the future after more
residences are constructed; he said Mr. Jenkins will have very few vehicles per week compared to when the
subdivision is built out. Commissioner Kriz asked if this was taken into consideration when the residents were
talking about the maintenance agreement. Ms. Michael responded that Boggess Lane is a private road for the
residents that live there, not for strangers coming in that no one knows who they are. Ms. Michael stated there
are two sections to Boggess Lane. She said the road maintenance agreement they are asking everyone to enter
into, including the Jenkins, is from the point of Route 608 to the beginning of the gate of the Jenkins property,
• which is onl about one -third of Boggess Lane. She said the Jenkins` were not asked to participate in the
remainder of Boggess Lane because they would have no reason to go any further, the rest of the landowners
would be accessing that portion.
Mrs. Staci Amari, wife of Thomas Amari who previously spoke, said she has lived at 285
Boggess Lane for 14 years. Mrs. Amari presented the Commission with a copy of a map and survey of Boggess
Lane and the existing subdivision. Mrs. Amari was opposed to the requested CUP because of safety concerns for
her children and the other neighborhood children; she said children walk to the school bus stop at the corner of
Boggess Lane and Old Bethel Church Road. She questioned whether some of the vehicles Mr. Jenkins repairs
would need to be hauled in with a tow truck or flatbed vehicle because the road has only a two -inch base and is
not intended for large equipment or heavy vehicles; she said the road is currently in need of repair. She remarked
that some of Mr. Jenkin's customers have been using the lane and travel at a high rate of speed; she said his
customers stop at her home and inquire how they are supposed to pick up their vehicles because the gate on Mr.
Jenkins' entrance is locked. She said his customers use her driveway to tum around. Mrs. Amari also had
concerns about allowing a pump and haul system for three years. She was concerned the system would not be
properly maintained and could contaminate her groundwater. She said the Rural Areas Policy states that pump
and haul should only be used in worse -case scenarios and was not intended for new businesses. Mrs. Amari said
she would not be opposed to the CUP, if Mr. Jenkins would use his own easement as the commercial access for
his business, if he installed a fence to screen all activities related to the business, and if no utilities serving his
business have a Boggess Lane address. She said if Mr. Jenkins uses Boggess Lane, he should place appropriate
speed limit and watch children signs.
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Mrs. Amari also presented a letter from Sarah McClellan, M.D. and David McClellan, M.D.,
residents at 456 Marple Road, who could not be present this evening, and who requested that their letter be read,
• as follows: "August 15, 2009, To Whom It May Concern, We concur with the concerns expressed by Mr. and
Mrs. Thomas Amari. We would like to also state that the Jenkins' plans are not in the best interest of the
community as a whole. We live in an amazing rural area and we should all strive to be good stewards of the land.
We have lived in many different areas and visited many other places. Frederick County, Virginia, is one of the
most beautiful areas we have ever seen, but it is in danger of losing the character that makes it so special. The
land that the Jenkins own has a historic graveyard on it that is meaningful to all in the community since some of
the original settlers of our county are buried there. We agree that allowing a public garage in this area would be
deleterious to the entire community and alter the land in a destructive, negative fashion which will be very
difficult, if not impossible, to reverse for future generations. Sincerely, Sarah McClellan, M.D. and David
McClellan, M.D."
Mrs. Nancy Jenkins, wife of Mr. Roger Jcnkins, the applicant, came forward to address some of
the continents that were made by the neighbors. Mrs. Jenkins said their business is currently operating at their
residence at 278 Old Bethel Church Road, under an approved CUP, and this is where customers are currently
coming to drop off and pickup vehicles. She said the gate is locked for security reasons, because they have their
fans equipment stored in the building. Mrs. Jenkins said her family farms this land and she is a fourth generation
farmer; she said they purchased this property for its beauty and to preserve it. Mrs. Jenkins said they constructed
the building to house their farm equipment and as they are getting older, it made better sense to use the newer
building for the garage, which is the reason they started this process. Mrs. Jenkins stated that the McClellan's
house is at least a mile from her property. Mrs. Jenkins said after they purchased this property, Mrs. McClellan
wanted her to put up a board fence because she had horses. Mrs. Jenkins said she had no reason to put up a fence,
but shared the cost to get along with the neighbors. She said her family helps to maintain the graveyard and
regularly brush hogs the area so visitors are able to access it. She said all they are asking is to operate a one-
person garage to work on transmissions. She said at the most, her husband could only fix two vehicles per week;
• she said this is not going to be a Jiffy Lube or a Seven - Eleven; she said there will not be a lot of traffic.
Mr. Thomas Looker, at 461 Hidden Valley Lane, said he is opposed to any change in zoning. He
did not hvant to see any commercial uses established. Commissioner Oates suggested to Mr. Looker that he read
the RA (Rural Areas) section of the Zoning Ordinance because other uses besides residential were permitted in
this district, such as a church, a livestock exchange, a store that sells agricultural products, and other businesses.
Mr. Gregory Bishop, Back Creek District, said that Stacey Amari was his daughter and he is
possibly interested in building a home in this area sometime in the future. Mr. Bishop said that pump and haul
trucks are heavy and will cause more wear on this road. Mr. Bishop said the issue is the use of Boggess Lane for
Mr. Jenkins' business traffic and the wear and tear on the road.
No one else wished to speak and Chairman Wilmot closed the public continent portion of the
hearing.
Commissioner Kriz asked for the County Attorney to speak regarding the issue of a commercial
business using a private road. Mr. Rod Williams, the County Attorney, stated that in terms of the County's
consideration of a CUP, conditions may be placed on the pemhiL legally including a condition regarding a road
maintenance agreement for upkeep of a road to particular standards. Mr. Williams said the bigger issue for the
County comes from the practical side; for example, if the maintenance agreement simply states that a maintenance
agreement must be in place, whether it is abided by is out of the hands of the County. If the condition m the CUP
states that the maintenance agreement must be in place and abided by, the practical problem for the County is that
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the Commission and the Board of Supervisors would end up being charged with the responsibility ofpolicing the
compliance. He said this function is better reserved for the courthouse than for the Planning Commission and the
Board of Supervisors, as a practical matter.
Conunissioner Thomas asked the staff if the Jenkins' had an easement to use Boggess Lane and
Mr. Cheran replied yes. Conunissioner Thomas said the Jenkins have as much right to use this road as any of the
other residents. Conunissioner Thomas said in order to put this in perspective, if Mr. Jenkins was very good and
active at repair, he could work on five vehicles per day; he said that would be ten trips per day which is an
equivalent number of trips generated by one house. He said if one additional house is built on one of the vacant
lots, it would generate as much or more traffic as Mr. Jenkins' public garage would generate. Commissioner
Thomas said this brings to light one of the Comity's problems with private roads; he said private roads relate to
the maintenance and does not relate to the use when it is within a subdivision. He said anyone in the subdivision
with an easement has just as much right to use the road as anyone else. He said because it is a private road does
not give one resident the right to restrict another resident from using it.
Commissioner Unger agreed this business would probably not create a lot of additional traffic
and would probably generate as much as an additional residence. However, he believed Mr. Jenkins should pay
his share of road maintenance costs, if the other property owners are interested in doing a road maintenance
agreement.
the road.
Conunissioner Triplett also agreed that Mr. Jenkins should participate with the maintenance on
Commissioner Kriz said that in order to provide some time for the residents to gel a road
maintenance agreement worked out, he would move to table the CUP for 45 days to promote harmony among the
neighbors. This motion was seconded by Conunissioner Triplett and passed by a majority vote.
BE IT RESOLVED, that the Frederick County Planning Commission does hereby table Conditional Use Pemut
#05 -09 of Roger Jenkins for a public garage at 190 Boggess Lane for 45 days in order to provide the property
owners along Boggess Lane the opportunity to work out a road maintenance agreement.
The majority vote was as follows:
YES (TO TABLE) Mohn, Kerr, Triplett, Kriz, Wilmot, Manuel, Ambrogi, Crosen, Unger
NO: Madagan, Thomas, Oates
(Note: Conunissioner Rucktnan was absent from the meeting.)
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to ADJOURNMENT
No further business remained to be discussed. Upon motion made by Commissioner Kriz and
seconded by Commissioner Triplett, the meeting was adjourned at 8:15 p.m. by a unanimous vote.
Respectfully submitted,
M. Wilmot. Chairman
Eric R( L'mafence, Secretary
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