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PC_05-02-79_Meeting_Minutes(PC 5/2/79) P. 1 MINUTES OF THE MEETING OF THE FREDERICK COUNTY PLANNING COMMISSION Held in the Board of Supervisors' Room PRESENT: C. Langdon Gordon, Chairman; Frank Brumback, Vice- Chairman; Elmer Venskoske; Thomas B. Rosenberger; W. French. Kirk; Manuel DeHaven; James Golladay, Jr.�' ABSENT: Herbert Sluder CALL TO ORDER The Chairman called the meeting to order. The first order of business, correction and approval of the minutes of the previous meeting, April 18, 1979, and approval of the minutes of the work session (evening), April 24. Corrections were as follows: Page 4 -- Mr. Rosenberger suggested not warned Page 7 -- Mathison letter, airport not carport Page 9 -- line 6, directed not disrected On motion by Mr. Golladay, seconded by Mr. Kirk, unanimous approval was voted. BIMONTHLY REPORT Two points were clarified in discussion of the bimonthly report, first, that site plans presently in progress are not old, even though the businesses themselves have been in that location for some time; and, second, that building permits,denied,most often were headed for a hearing by the Board of Zoning Appeals. Ms. Stefen explained that sometimes staff holds a permit rather than denying it, and that denial is actually preferable. Nothing is paid, she said, until application is picked up. She declined to say that trailer approvals are on the increase (except slightly, but still less than last Fall). She distributed some tables for Commission use. The Bimonthly Report was received as information. CONDITIONAL USE PERMITS Request for a CUP by Gerald P. DeHaven (tabled from previous session) of Shawnee District. ACTION -- approved The Chairman expressed discomfiture at the absence of Mr. Sluder, who ME (PC 5/2/79) p. 2 was out of town, in the reconsideration of Mr. DeHaven's petition. Ms. Stefen added a previously unnoted bit of information: the land is planned for industrial use though not now so zoned, and is therefore less in conflict than supposed. Mr. Brumback mentioned that back -up attendance by some member of the Health Department would be helpful, and advance knowledge of non - attendance. The Chair- man confirmed that this was a good suggestion.. Ms. Stefen, in the absence of Health Department staff, provided their comment, as follows: "The Health Depart- ment has no objections to the proposed use of this property providing that (1) the existing septic system is upgraded to present standards as required by the Health Department permit; (2) sewage facilities are installed in the garage for use by employees and public, and connected to the upgraded septic system." Mr. DeHaven, invited to give his feelings, said, confirming his position as stated before: a toilet in the garage would not be needed, as there would be no other employees; the cost of installation would be considerable, especially heavy for him since County water lines are expected, per Mr. W. H. Jones* in two to five years. (This is an expectation but not a fact.) In addition, he repeated that the toilet in the garage could not be prevented from freezing in the winter; he emphasized that the nature of his'work was that customers drop off their cars and don't come back for two days. "There's no customer going to stand around. If they do, they're welcome to use the restroom in the house." Mr. Gordon suggested that the Health Department's belief is that the current septic system would not be equal to increased use. What Mr. DeHaven has been told will be needed: the installation of two septic tanks with a line joining them, plus 1800 feet of drainfield, and a pumping system, in order to comply with the upgrading requirement. Mr. DeHaven said he'd be glad to put in writing his willingness to hook up to the County water and sewer system when it becomes available. He said he has contracted to buy the property. The Chairman asked if he were now operating his business; Mr. DeHaven 665 * Sanitation Authority (PC 5/2/79) p. 3 said No, not since he got the letter Saturday. The letter, Ms. Stefen said, is just a notice of violation. Mr. Golladay questioned the sending of the letter, and Ms. Stefen explained that no action was contemplated, that the letter was only a notification, setting no time limit and making no demand to cease operations. Vice - Chairman Brumback expressed the thought that perhaps a compromise could be reached, following up on Mr. Manuel DeHaven's comments recognizing Mr. Gerald DeHaven's difficulty. At this, Ms. Stefen volunteered that "Mr. Brown, Mr. Sluder, and I have reached agreements that we could live with. This could be conditioned a number of ways: only the family working there, renewable every year, and that renewal contingent on hooking up to water, etc. when it comes through." The Chairman asked the petitioner if he would limit the number of cars on the premises and agree to remain a one -man operation. Mr. DeHaven said keeping down to two cars would hamper his making a living -- five or six cars about right. Ms. Stefen pointed out that more than five cars not tagged or operable constitute an auto graveyard. Mr. M. DeHaven commented that these cars would be getting re- paired, thus would be tagged and have County stickers. Mr. Rosenberger asked if this would be renewable yearly, and the Chairman replied that the staff was recom- mending it be handled as a CUP renewable yearly. The Vice - Chairman moved that a yearly permit, no more than five cars, a con- tinued one -man operation be the conditions imposed, but not an agreement to hook into the County water -sewer system, since the permit is for one year only. Mr. G. DeHaven wondered if he could be shut down after a year's time; Mr. Gordon explained that renewal is more or less granted as a matter of course in the absence of excessive complaints, though renewal is not guaranteed. A member of the audience at the hearing asked if renewal would be likely if there weren't any complaints, and went on to add that if the place "looks really neat" N M (PC 5/2/79) p. 4 with paint on the garage, it would be a nice - looking place." He said it was run -down. Mr. Kirk seconded the motion. Final discussion led to the clearing up of Mr. Gerald DeHaven's interpretation of the violation notice. As no action will be taken, he may continue to operate his business. BE IT RESOLVED, that the Planning Commission recommend approval of the CUP for Gerald DeHaven conditional on his running a one -man operation, with no more than five cars parked on the property, for one year. Request for a Conditional Use Permit by James L. and Donna Powell to operate a nonconforming business on Route 11 South, Opequon District.(020 -78). ACTION -- Approved The case, said the Acting Secretary, has been heard before, and is back with some modifications; previous plars called for a masonry shop, but this provision has been deleted. Parcel 82 on the plat is the only area affected by the CUP request. Mr. Billy J. Tisinger appeared for Mr. and Mrs. Powell, and said that the masonry shop was discussed at previous Commission meetings in lieu of the automobile repair operation. Since then, the Powells have learned that both activities cannot be conducted in the same area. The service station,motor vehicle and engine repair activity has been carried on in that location, to some extent and in different degrees. The .66 acre encompasses the area where the service station was plus driveways and a little area on the north and south of the building. The Powells own the connecting land; diagonally across the road are the Nixon Apartments, where the Nixon Motel once was, and there are some other houses down the road. The CUP permit requested today is for entirely indoor activities, with no storage area outside, or any outside activity. Should a need arise for either of these, the Powells will present a new petition to the Planning Commission with an acceptable plan for screening. At present, all will be under roof. Like the DeHaven case immediately preceding, this will be rented 667 (PC 5/2/79) p. 5 to a one -man operation, the operator is a man who "pulls cars in and is works on them." The frontage on the property /about 200 feet or more; the balance of the land is planned to remain agricultural. There will be no retailing; the lease arrangement will be continued unless a buyer comes along. Mr. Tisinger "would envision, depending on how you condition it, a small, one -man operation in the present building, "and not a busy type of activity. Mr. Golladay pinpointed the area of difficulty as being the hours of work and the noise generated -- cars without mufflers being run at night, in a residential area. Mr. Tisinger's reply was that a condition being set in the use permit to cover the nuisance would be reasonable. After discussion, it was decided to set one condition as operation in daylight hours. Appearing in opposition was Mr. M. J. Nixon, presently living in Strasburg, who previously owned the Nixon Apartments. Mr. Cloud couldn't be here, he said, "and asked me to come." He spoke of past difficulties with the Powell property, and the fact that the location was noisy and the proprietor ignored official communications. The gas station was an asset, but the repair operation was "a real headache. I'm not in favor of it, for that reason only," he said. "Do you think you and Mr. Cloud could live with reasonable conditions on this ?" asked Mr. Golladay. Mr. Nixon appeared to find the conditions sensible. Mr. Gordon pointed out that the situation during Mr. Nixon's time in that location was quite different from the present -day terms, with the yearly renewal subject to revocation if complaints occur, and a better policing in effect. Mr. Nixon said "We didn't have the vehicle to work with back in those days you have now. You can keep your finger on it much better than they did then." To Mr. Rosenberger's Powell question about the previous owner of the /property under discussion, Mr. Nixon said Seaman. The commission then discussed the critical point of hours of operation. Operation after nine or ten at night generates the most complaints, according to Ms. Stefen. Mr. Tisinger suggested "daylight hours" was better than "normal daylight hours." Early morning operation also causes complaints. M (PC 5/2/79) p. 6 Mr. Tisinger offered to act as intermediary in the matter of daylight operation, adjusting the hours should complaints be received. Mr. Golladay moved to approve the petition based on three conditions, yearly renewal, daylight operation, and all storage indoors, Mr. DeHaven seconded. The vote was: Kirk; DeHaven; Golladay; Brumback; Venskoske; Brumback; Rosenberger; Gordon -- YES BE IT RESOLVED, that the Planning Commission recommend to the Board of Supervisors approval of the Powell petition 020 -78 on the three conditions enumerated above. ACTION -- approved Request for a CUP by Steve and Lynn Malin 007 -79, to operate a home occupation on Shockey Drive in Shawnee District, Fairway Estates. The intended use is as temporary headquarters for a small private business, an employment office, with interviews by appointment, and only members of the family working there, the applicant, Lynn Malin. No building, no additions. The five adjoiners were notified, according to Ms. Steen. Mr. Gordon inquired about the posting of CUP's, and both Mr. Brumback and Ms. Stefen appeared to feel this had not been put into effect. Mrs. Malin was invited to appear and explained the reasons for the home occupation request: to build up a clientele substantial enough to warrant suitable business quarters. She said she would be in partnership with another lady in Winchester, who would take half the work -load. Very little traffic or inconvenience to neighbors would be involved, one person parking at a time, for instance. Mrs. Malin expects to begin in the Fall, thinks they would know fairly soon thereafter how the business would go; plans to move immediately if volume of business prove to be too much. The home occupation meanwhile would keep expenses down. Mr. Brumback moved to approve the petition with the staff's recommendations, annual renewal, all parking to be provided on the premises, that the permit be non - transferable, no employees other than family members, and no outside display. Mr. Kirk seconded. 669. (PC 5/2/79) p. -7 The vote was unanimous. BE IT RESOLVED, that the Planning Commission recommend approval of CUP No. 007 -79 to the Board of Supervisors subject to conditions specified above. A five - minute break occurred at this point. Discussion of draft amendments to the parking regulations of the Zoning Ordinance Section 21 -13, Minimum Off - Street Parking Ms. Stefen gave the background: For some time, the staff has known that the parking regulations don't meet current needs. Ms. Stefen contacted the Ur- ban Land Institute to learn present needs, and her:. findings are reflected in the present draft. The difference lies chiefly in a more exact addressing of distinc- tions, as between, for instance, an office building and a 7 -11 store. Mr. Golladay inquired as to the meaning of (c), Ms. Stefen said the word "overhand" should read "overhang ". The meaning was still not entirely clear, and Ms. Stefen offered to rewrite the sentence. Item (e) is the same, but has been broken down and put in different places. Discussion of item.'(f) led to the Chairman's observing that campers, which are not covered here, have aroused criticism by neighbors when parked in sub- divisions, his point, that these are more unsightly, perhaps, than pick -up trucks, which are covered in (f). Ms. Stefen told him that in cities they can be required to be under roof. She remarked, however, that there would probably be more com- plaints about such a ruling here than about the campers. The immediate reaction of other P.C. members was that this could be a hornet's nest. The crossing of this particular bridge was postponed. Mr. Gordon suggested a run- through of all provisions to expedite making proposed changes before advertising a public hearing, and asked about the square footages in (g). Ms. Stefen worked from a chart from the Urban Land Institute; as she explained, copying previous ordinances can be tricky if a mistake is made, 670 (PC 5/2/79) p. 8 since it is then perpetuated. Her main source was this chart, which in turn came from materials from the The American Societyof Planning Officials&the Ameri- can Society of Civil Engineers. Those figures are tempered with a feel for the County -- their guidance plus common sense: On (12), Ms. StefEPillustrated the catch -all nature with a hypothetical situation to demonstrate the need for some staff leeway in regulation, al- though stating that she believes the staff in some instances, i.e..site plans, has perhaps more leeway than it should. She proposed review by the Director of Public Works in instances where the expertise of an engineer would be useful, and no objection was made by the Commission members. Discussion of Draft Amendments to the Conditional Use Permits section of the Zoning Ordinance, Section 21 -11. Conditional Use Permits Mr. Gordon's opening remark was that CUP discussions are also hornet's nests. Ms. Stefen gave the background: staff was in agreement on the need for amendments, and in researching State law went on to examine court cases cited to determine what the State law says actually works. The next step was to write what staff believes will clarify what sorts of things can be conditioned, and also prevent legal difficulties from arising. Mr. Ambrogi has reviewed the draft and said it would hold water. Now the P.C. views are sought as to whether the members perceive it as likely to accomplish desired goals. Mr. Brumback asked about (5) inasmuch as the runoff problem is a recurring one; Ms. Stefen suggested that Mr. Stan Pangle appear before the Commission since hes possesses applied experience in this matter. Mr. Brumback feels clarity is hard to come by in this matter in practical terms. The Chairman asked why zoning for a 1 -acre tract is less stringent than conditions for a CUP. "Is that fair," he asked, "to be more restrictive with a CUP than with basic zoning ?" He was referring particularly to B zoning. Ms. Stefen said the CUP section, in effect, allows a person to rezone a property. 671 (PC 5/2/79) p. 9 Mr. Brumback mentioned that some things are particularly undesirable in a B zone and need requirements and stipulations put on.Ms. Stefen pointed out that in the M -2 section of the ordinance, the heavy industrial, any use requires a CUP; it's wise, she said, since such an area has everything from sawmills to junkyards. She predicted that CUP's will be more and more in use. Mr. Rosenberger asked if, to the 14 listings under D, it would be possible to add excessive noise, since in two petitions in the day's session this question had come up. Ms. Stefen described this section as a laundry list to which additions of any kind may be considered; added that Mr. Berg had discouraged her from putting noise on this list, though, because of difficulty in policing. This difficulty was discussed extensively, by P.C. members and by Mr. Ambrogi: the subjective element of what people view as excessive noise, the tricky matter of enforcement. Decibel reading was discussed, and the problem of proof. Mr. Ambrogi was specific, and said that motorcycle noise generated the bulk of complaints received. Vague wordings can be struck down, he said. Mr. Ambrogi predicted difficulty in dealing with the noise problem "no matter what you do." He made a distinction between necessary, vital noise and such disturbing noise as motorcycles on private property. To Mr. Rosenberger's suggesting "nuisance" to describe the unwanted noise, Mr. Ambrogi replied that the definition of "nuisance" would have to be clear. He spoke to the idea that "you can't always legislate all the objectionable things and ills" and said the only way to avoid vagueness was to use the decibel approach; went on to add that this implies an expert with a machine to measure noise at the time it's being made, willing afterward to :testify. Ms. Stefen wondered if the air pollution cited in C (3) might not:cover noise pollution, but Mr. Ambrogi did not accept that, said they were entirely different. Both agreed there were no available experts on noise pollution, where- as on air pollution these do exist, within the State structure, just as with water pollution. EPA was mentioned as a possibility. 672 (PC 5/2/79) p. 10 Mr. Ambrogi described a noise complaint: the telephone is held toward the noise, and the complainant says "This is what I've been putting up with all day." It was agreed that this matter needs looking into, and merits study. Mr. Rosenberger and Mr. Golladay are interested in digging into this. Ms. Stefen made a distinction between the 14 listings under D and the intent not to bind the Commission or the Board, and stressed the quite different importance of C, in which legality was an issue, and familiarity with the regu- lations and safeguards in the event of a court case. She stressed that D repre- sents guidelines only, not to be imposed in all conditions. The item is received as information. Consideration next turned to the memorandum on the final page of to- day's agenda submitted as a result of the Commission's previous meeting, the question of advertising in the newspaper the Planning :Commission agenda, estimated to cost no more than the Board of Supervisors' agenda. Mr. Golladay wanted to know if it was in the budget. Mr. Rosenberger stated that:.it was not in the budget, but could be recommended to the Board and provided for. It was moved and seconded that advertising be recommended to the Board. The question of a fee for CUP applications was.-discussed, with a tentative price of $75 per application, but the vote taken was on the matter of advertising the agenda. Vote was as follows: Kirk; DeHaven; Golladay; Brumback; Venskoske; Rosenberger; Gordon -- YES BE IT RESOLVED, that the Planning Commission establish a policy of advertising the agenda, and request the Board of Supervisors to appropriate the i monies for this purpose. Mr. Brumback requested that the Secretary search the minutes to determine if posting a sign on properties requesting CUP's is mentioned as having been effected by past decision of the Planning Commission. 673 (PC 5/2/79) p. 11 Mr. Golladay then raised the question of the length of time which has elapsed since a policy review has taken place, and requested the Secretary to reread past minutes to update members' memories of decided policies which may or may not have been implemented or adhered to. Mr. Gordon asked if there were no charge made for applications for CUP's, and inquired if the time required by the staff to process these was comparable with the time needed for zoning changes, which cost $100. Ms. Stefen said that indeed the expense of effort and time was comparable, took every bit as much time. Maybe less in consultation with the person to prepare it, but since the advertising has been decided on, a charge is appropriate: the Health Depart- ment, Public Works Department, Inspections, all must review just as with rezoning. Mr. Ambrogi said there was no legal reason not to charge for the CUP application unless some statute to the contrary existed; all the fee represents is the cost of the paperwork. He sees no difference in this instance from other fees presently in force. Mr. Brumback moved, Mr. Kirk seconded the motion that a charge be made for CUP applications. The following discussion was on the point of the cost; $75 was felt to be a little steep by Mr. Golladay and Mr. Venskoske. Mr. Golladay recommended a $50 fee. Mr. Brumback spoke to the County officials' time being as valuable in one application as in another, and supported the $75 fee. The Chairman asked Mr. Renalds for his opinion on the advisability of setting this charge, and he gave as his view that the time consumed was equal for the CUP's to other functions. He referred to the court case in today's business as having consumed considerable time, yet yielding no fee. application Mr. Brumback raised the point that because the CUP /is free at present, perhaps more applications are made. Ms. Stefen said she could think of several cases in which a charge would have deterred application, without lack of money constituting a problem. 674 (PC 5/2/79) p. 12 The voting was as follows: Kirk; DeHaven;Venskoske; Brumback; Gordon - -YES Golladay -- NO Rosenberger -- ABSTAIN BE IT RESOLVED, that the Planning Commission recommend to the Board of Supervisors the establishment of a charge of $75 for applications for Conditional Use Permits. The last piece of business before the Planning Commission went into executive session: Mr. Rosenberger indicated that the Board was interested in giving an eighteen -month trial to "the two categories of zoning." This would be in the M and the B zones, the use of conditional zoning. Ms. Stefen spoke of an upcoming conference of which Commission members have notice, attendance at which could be financed by a transfer of funds. The Monday session will cover conditional zoning in Henrico County, an area more resembling this one than, for instance, Fairfax County. "We might get some good ideas there," she said. "In Fairfax they've written conditional zoning into their plan. " The Tuesday session will offer information on rural planning. Mr. Golladay moved, Mr. Kirk seconded, to go into executive session, and all approved the motion. BE IT RESOLVED, that the Planning Commission meet in executive session to discuss a legal matter. Mr. Golladay moved, Mr. Venskoske seconded, to end executive session. Item #6 of the day's agenda will appear in the next meeting of the Commission. Item #7 has already been covered in discussion of cost of advertising agenda. There being no further business, Mr. Gordon moved to adjourn. The vote was unanimous and the Chairman adjourned the meeting. Respectfully submitted, Dorothea L. Stefen, Acting Secretary 675 C. Langdc4i Gordon, Chairman