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HomeMy WebLinkAbout07-08 ApplicationRA 9mDERICK Department of Planning and Development 540/665 -5651 FAX: 540 /665 -6395 October 14, 2008 John Lewis Painter - Lewis, PLC 817 Cedar Creek Grade, Ste. 120 Winchester, VA 22601 RE: REZONING #07 -08, UNGER PROPERTY Dear John: This letter serves to confirm action taken by the Frederick County Board of Supervisors at their meeting of October 8, 2008. The above - referenced application was approved to rezone 0.49 acres from the B2 (General Business) District with proffers and .85 acres from the RP (Residential Performance) District to B2 (Business General) District with proffers for commercial use. The properties are located on North Frederick Pike (Route 522) between Westminster Canterbury Drive and Hickory Lane, in the Stonewall Magisterial District, and are identified with Property Identification Numbers 53A -A -5 and 53A -A -6. The proffer originally dated July 15, 2008, and last revised on September 29, 2008, that was approved as a part of this rezoning application is unique to this property and is binding regardless of ownership. Enclosed is a copy of the adopted proffer statement for your records. Please do not hesitate to contact this office if you have any questions regarding the approval of this rezoning application. Sincerely, C . ( Candice E. Perkins, AICP Senior Planner CEP/bad Attachment cc: Mrs. Frances Unger, 5179 Barley Dr., Stephens City, VA 22655 Charles S. DeHaven, Jr., Stonewall District Supervisor Gary Oates and Richard Ruckman, Stonewall District Planning Commissioners Jane Anderson, Real Estate Commissioner of Revenue 107 North Kent Street, Suite 202 • Winchester, Virginia 22601 -5000 REZONING APPLICATION 07 -08 UNGER PROPERTY Staff Report for the Planning Commission Prepared: September 30, 2008 Staff Contact: Candice E. Perkins, A1CP, Senior Planner This report is prepared by the Frederick County Planning Staff to provide information to the Planning Commission and the Board of Supervisors to assist them in making a decision on this application. It may also be useful to others interested in this zoning matter. Unresolved issues concerning this application are noted by staff where relevant throughout this staff report. Reviewed Planning Commission: 09/17/08 Board of Supervisors: 10/08/08 Action Recommended Approval Pending PROPOSAL To rezone .49 acres from B2 (General Business) District to B2 with proffers, and .85 acres from RP (Residential Performance) District to B2 (Business General) with proffers. LOCATION The properties are located on North Frederick Pike (Route 522) between Westminster Canterbury Drive and Hickory Lane. MAGISTERIAL DISTRICT Stonewall PROPERTY 1D NUMBERS 53A -A -5 and 53A -A -6 PROPERTY ZONING B2 (Business General) and RP (Residential Performance) PRESENT USE Commercial and Residential ADJOINING PROPERTY ZONING & PRESENT USE North: B2 (Business General) South: RP (Residential Performance) East: B2 (Business General) RP (Residential Performance) West: B2 (Business General) Use: Commercial — Stonewall Plaza Use: Residential Use: Commercial — Continental Restaurant Use: Residential Use: Commercial PROPOSED USE Commercial Use (13,225sf Pharmacy) 0 0 Rezonine 407 -08 — Unger Property September 30, 2008 Page 2 REVIEW EVALUATIONS: Virginia Department of Transportation: The documentation within the application to rezone this property appears to have significant measurable impact on Routes 522 North and 1318. These routes are the VDOT roadways which have been considered as the access to the property referenced. VDOT is not satisfied that the transportation proffers offered in the Unger Property Rezoning application dated July 15, 2008 address transportation concerns associated with this request. We offer the following comment: We feel the proffer statement should include closing the first crossover to the south and provide a left turn lane at the second crossover to the south to accommodate U- turns. Before development, this office will require a complete set of construction plans detailing entrance designs, drainage features, and traffic flow data from the I.T.E. Trip Generation Manual, Seventh Edition for review. VDOT reserves the right to comment on all right -of -way needs, including right -of -way dedications, traffic signalization, and off -site roadway improvements and drainage. Any work performed on the State's right-of-way must be covered under a land use permit. This permit is issued by this office and requires an inspection fee and surety bond coverage. Staf Note: The revised proffers for the rezoning address the closure of the Crossover as well as the turn lane. Fire Marshall: Plan approval recommended. Department of Public Works: We have no comments at this time. We reserve the right to perform a detailed review of the site plan submitted for the proposed commercial property. Frederick - Winchester Service Authority: No comments. Sanitation Autbority Department: There is adequate sewer and water capacity to serve this site. Department of Parks & Recreation: No comment. Health Department: Health Department has no objections to the rezoning request. Winchester Regional Airport: The proposed development plan will not have an impact on operations at the Winchester Regional Airport. While the proposed site lies within the airport's airspace, it does fall outside of the airport's Part 77 close in surfaces. Frederick County Public Schools: We offer no comments. Attorney Comments: It is my opinion that the Proffer Statement would be in a form to meet the requirements of the Frederick Country Zoning Ordinance and the Code of Virginia, and would be legally sufficient as a proffer statement, subject to the following: Introductory paragraph — Concerning subsequent amendments or revisions to the proffers, to read more clearly, "and such are approved by the Board of Supervisors" should read "and such subsequent amendments or revisions to such conditions are approved by the Board of Supervisors ". Also, the reference to "TM #s 53A -A -6" should not include the plural "s" and, in the last sentence of the paragraph, "owner' should be plural. Proffer 1 — The 0 0 Rezoning ;#07 -08 — Unger Property September 30, 2008 Page 3 proffer should state that the use and development of the subject property shall be in conformity with the Generalized Development Plan (GDP) dated 7/8/08, identified as "GDP ", and which is attached to the proffer statement, and should then indicate the matters that the GDP reflects. Proffer 2b — To avoid any later ambiguities, the references to the parcels served by the entrance should be generic, that is, to the subject parcel and to TM# 53A -2 -C (or, if greater specificity was intended or desired concerning the neighboring property in particular, the proffer could state" ... to the subject parcel and to the commercial establishment [or, for more specificity, "the restaurant] on TM# 53A- 2- C... "). Proffer 3 — For consistency with the terminology of the Zoning Ordinance, the applicant may wish to change "pharmacy" to "drugstore ". For clarity, the reference to square footage and improvements would read better as "containing a floor area of approximately 13,225 square feet and associated improvements... ". The last part of the proffer should state that the structure /improvementswill be constructed in conformity with the GDP. Proffer 5 — The GDP does not show the referenced easements. Closing paragraph — The reference to "owner" should be plural. The final version of the rezoning application form will need to indicate the capacity in which the signatory for the applicant is acting (e.g., title) and, as well, the fonn and the proffers will need to be signed by both owners. I have not reviewed the substance of the proffers as to whether the proffers are suitable and appropriate for this specific development, as it is my - understanding that that review will be done by staff and the Planning Commission. Staff Comment: The County Attorney's comments have been addressed by the revised proffer statement. Planning Department: Please see attached letter dated July 31, 2008, and signed by Candice K Perkins. Senior Planner. Planning & Zoning: 1) Site History The original Frederick County Zoning Map (U.S.G.S. Winchester Quadrangle) depicts the zoning of both parcels as B -2 (Business General) District. In 1980, parcel 53A -A -6 was included in the County's comprehensive downzoning and was changed from 132 to R -3 (Residential Limited) District. The zoning changed to RP (Residential General) District on September 28, 1983 when the R1, R2, R3, and R6 zoning districts were reclassified. 2) Comprehensive Policy Plan The Frederick County Comprehensive Policy Plan is an official public document that serves as the community's guide for making decisions regarding development, preservation, public facilities and other key components of community life. The primary goal of this plan is to protect and improve the living environment within Frederick County. It is in essence a composition of policies used to plan for the future physical development of Frederick County. [Comprehensive Policy Plan, p. 1 -1] 0 0 Rezonine #07 -08 — Unger Property September 30, 2008 Page 4 Land Use The subject properties are within the limits of the Sewer and Water Service Area (S WSA). The Sewer and Water Service Area defines the general area in which more intensive forms of planned commercial, and industrial development will occur. The properties are within the limits of the Eastern Frederick County Long Range Land Use Plan. The plan shows this area with a commercial land use designation. The applicant is requesting a rezoning to the B2 (Business General) Zoning District and therefore this request is in general conformance with the Comprehensive Policy Plan. Transportation and Site Access The subject site is currently accessible via North Frederick Pike (Route 522). As shown on the Generalized Development Plan (GDP), the proposed use is a CVS Pharmacy that will be developed on four parcels of land. The GDP shows the ultimate access for the site as being from one entrance on Westminster - Canterbury Drive (Route 1318) and a right in/right out on North Frederick Pike (Route 522). The new entrance on Route 522 will be a shared entrance with the adjacent Continental Resu urant property. The proffers for the rezoning account for the closure of the existing entrances on the Continental Restaurant property and the construction of a new shared right -in /right -out entrance on Route 522 as well as the construction of a new right out on the Continental Restaurant site as shown on the GDP. The proffers and GPD account for the construction of a sidewalk along Westminster - Canterbury Drive and a ten foot bicycle /pedestrian path along Route 522. This application also accounts for the closure of the crossover on Route 522 and Hickory Lane as well as the construction of a left turn lane at the second crossover to the south of the site on Route 522. 3) Site Suitability /Environment No flood plains, lakes or ponds, wetlands, sinkholes, steep slopes, or other environmental features have been identified. The General Soil Map of the Soil Survey of Frederick County, Virginia indicates that the soils comprising the subject parcel fall under the Frederick- Poplimento Loams soil association (1413) These soil types are gently to strongly sloping, well- drained, and deep. 5) Proffer Statement — Dated July 15, 2008, Revised August 6, 2008, September 3, 2008 and September 29, 2008: 1) Generalized Development Plan • The use and development of the property shall be in conformance with the Generalized Development Plan. 2) Improvements to Route 522 and Route 1318 • Design and construction of a right turn lane eastbound into the site along the frontage of the site and extending along the frontage of PIN 53A -2 -C (Continental Restaurant). • Design and construction of a right in/right out entrance from Route 522 to serve 0 0 Rezoning 407 -08 —Unger Property September 30, 2008 Page 5 the subject parcel and PIN 53A -2 -C (Continental Restaurant) via a permanent access easement. Y Design and construction of a right turn lane northbound on Route 1318 at its intersection with Route 522. C Design and construct a right out exit from PIN 53A -2 -C (Continental Restaurant). a Design and construction of the closure of the crossover on Route 522 atHickory Lane. • Design and construction of a left turn lane at the second crossover to the south on Route 522. • Design and construction of a 10 foot wide asphalt bicycle /pedestrian path along the Route 522 frontage and a sidewalk along the Route 1318 frontage as shown on the GDP. 3) Parcel Usage o The use of the site is limited to a pharmacy containing 13,225 square feet and improvements shall be constructed as shown on the GDP. 4) Monetary Contribution • $1,000 to Fire and Rescue 5) Inter - Parcel Circulation and Access • An Interparcel access easement shall be created for the benefit of PIN 53A -2 -C (Continental Restaurant) as shown on the GDP. 6) Drainage Improvements for Westbury Commons • The applicant agrees to design and install drainage structures which will collect the storm water discharge from the stormwater management facility on the Westbury Commons site and convey the discharge to the Route 522 drainage system. These drainage structures will be installed only under the conditions that 1) the property owners of Westbury Commons grant reasonable access to the property and 2) said access is granted prior to the commencement of construction of the proposed pharmacy. The applicant agrees to create a 10' drainage easement for the benefit of Westbury Commons running through the site to allow for the conveyance of storm water runoff from Westbury Commons to the Route 522 drainage system. 7) Building Design • The building to be erected on the site shall be constructed using cast stone or brick or other masonry material with stucco accents. Screen walls for the trash receptacle and compactor shall be constructed using a cast stone or brick to match the building. 0 0 Rezoning 907 -08 — Unger Property September 30, 2008 Page 6 PLANNING COMMISSION SUMMARY AND ACTION OF THE 09/17/08 MEETING Staff reported that the entrance- spacing waiver referred to in the application is not now needed. The new entrance on Route 522 will be a shared entrance with the adjacent existing Continental Restaurant property. The proffers and the GDP account for the closure of the existing entrances on the Continental Restaurant property and the construction of a new shared right -in, right -out entrance on Route 522, as well as the construction of a new right -out on the Continental Restaurant site, which negates the need for the waiver. Three citizens spoke during the public comment portion of the hearing. One was the developer of Westbury Commons, a community of 11 age - restricted, single - fancily homes, which borders the south side of the proposed rezoning site. He said Westbury Commons consists of all- brick, one -story homes, priced from $400,000. He asked the Commission to protect the property values and quality of life for the surrounding homeowners and to consider a number of design requests, as follows: 1) request for the building to be moved forward towards Route 522 by 30 -40 feet, increasing the buffer with the single - family homes; 2) request for the first -floor building elevation to be lowered to lessen its visual impact; 3) request for the building to be constructed with an all -brick exterior to improve the visual quality for adjacent single - family homes; 4) request for the dumpster local"on to be moved away from Westminster- Canterbury Drive to a less- visible location; 5) request for the proposed entrance on Westminster - Canterbury Drive to be moved further north within the intersection distance requirements; 6) request for specific hours of operation; 7) request that exterior lighting not adversely impact adjacent residential uses; and, 8) request for the fence buffer required by zoning ordinance to be moved away from the property line with Westbury Commons and located adjacent to the proposed parking lot to provide a more effective visual buffer. An adjoining property owner at 104 Hickory Lane was concerned about storm water runoff, parking lot lighting, noise, and he requested the use of barriers to separate the pharmacy business from his yard. The third citizen, with Fountain Homes, a home builder for Westbury Commons, spoke in favor of the rezoning because of the service it would provide to the age - restricted community. The Commission also recognized an email that was received from an adjoining property owner at 109 Hickory Lane expressing concerns and opposition to the proposed rezoning. The applicant's representative was available to respond to citizen comments and to answer questions from the Commission. The property owner, Mrs. Francis Unger, and her daughter were present and spoke in favor of the proposed pharmacy use. Members of the Commission preferred to see an all -brick exterior for the pharmacy building and the dumpster enclosure to improve the visual quality of the structure and they wanted the Board of Supervisors to consider this recommendation. In addition, they wanted the agreement pertaining to the frontage improvements to be signed by all parties and completed before the rezoning was considered by the Board. The Planning Commission unanimously recommended approval of the rezoning with these two stipulations. (Note: Commissioners Thomas, Kriz, and Watt were absent from the meeting.) 0 0 Rezoning 407 -08 —Unger Property September 30, 2005 Page 7 STAFF CONCLUSIONS FOR 10/08/08 BOARD OF SUPERVISORS MEETING: This is an application to rezone two parcels totaling 1.34 acres from the RP (Residential Performance) and the B2 (Business General) District to the B2 District with proffers to accommodate a proposed pharmacy. The land use proposed in this application is consistent with the Comprehensive Policy Plan, as described in the Eastern Frederick County Long Range Land Use Plan. Since the Planning Commission meeting the applicant has provided the signed agreement with the adjoining property owner for the Route 522 frontage improvements and has also revised the proffers to address the Commission's concerns regarding the exterior of the building and the dumpster enclosure. Following the required public hearing, a decision regarding this rezoning application by the Boar d of Supervisors would be appropriate. The applicant should be prepared to adequately address all concerns raised by the Board of Supervisors. r 42 A 1980 r WINSTONE LLC iA =a 1 PATEL G 522 MP LLC 53_D 3 4 MP LLC w S3q ` 1�i 53 4,2 D S UNGER S NgSS � N F,p UPPER VQ CRUST LLC 4 1 53 UPPER 1 53A A 6 • SJq 2 CRUST LLC UN ER 0, 1 N �k s 2 h • � Harvest Comnuniti esa Inc /(j 44 ? Kin'�q a 0� e 1 �4 q oNg WE STBURY / pL I NO <Y NN F Roo F R ■ Unger Property Rezoning REZ 07 - 08 PIN: 53A-A-5, 53A-A- 6 / -rs r g /A H Gall.... � ��, � •� ;; �'� �s � Agprcatlon Z..i.q M2 Onaaabial. GancrlDistrim ��� U,bnn Cn'elopmem 1,, _ -BI (BUSines. NaigM1MrM1ml Dinricn • MR I(Mobile HO= Cammunily Disinct) ^�SWSA %` B2(Buflncss. General Disn,l) - MS(MeEical Suppon Distnc0 • 83 (BUaincsc Intlmoial Trunation Distrlcl) ® R4 (Rt hd= ial PlmnO Comm —, Dlsltla) - EM(E.alnai.e Mwidacmnng Dlstvep •RS(RCSiECnfial Ramaliongl Co —ith, D..ht) - HE (HigM1er Fducallan DieNtl) I Dialnc!) -MI(kidu al. Light DbNN RP(R— &filial Pe—r. D,.,) 0 250 500 1,000 Feet W�E Map Document (N:)Planning_Antl Decdopmenn_t Lutamr_ Mpsa20081 W) gerProper (y_REZO]OB_08181]B.mxO) 8 1181 0 0 THIS AGREEMENT, made and dated this _Z(a day of September, 2008, by and between ROBERT E. HASSINGER AND JOAN B. HASSINGER ( "Hassinger "), and JEM X, LLC, a North Carolina limited liability company ( "JEM "). RECITALS: A. Hassinger is the owner of that certain parcel of land containing 21,179 square feet, more or less, situate on the east side of North Frederick Pike (U.S. Route 522) at Sunnyside in Stonewall Magisterial District, Frederick County, Virginia, which has a street address of 1361 North Frederick Pike, upon which is located a restaurant known as "The Continental Restaurant ", Tax Map No. 53A -2 -D -C (the "Restaurant Property"). B. JEM intends to acquire those four parcels of land located on the east side of North Frederick Pike (U.S. Route 522), at the intersection of North Frederick Pike and Westminster- Canterbury Drive at Sunnyside in Stonewall Magisterial District, Frederick County, Virginia, currently improved by a car wash, a residence and a grocery store known as "Oates Grocery", Tax Map No. 53- 4 -2 -D, 53- 4 -3 -D1, 53A -A -6 and 53A -A -5 (the "JEM Parcels "). C. JEM is seeking to rezone that certain parcel designated as Tax Map No. 53A- A-6 to a B -2 zoning classification (the "Rezoning ") and to obtain approval of a site plan for the construction and operation of a pharmacy on the JEM Parcels (the "Site Plan "), and as part of such process, has agreed to make certain improvements to the JEM Parcels and the Restaurant Property including reconfiguration of entrances from public highways to the properties (the "Restaurant Property Improvements "), as the same are more particularly described and depicted on that certain exhibit titled "Property Improvement Plan PIN #53A- 2-D-C" dated September 15, 2008, prepared by Painter - Lewis, P.L.C." (the "Exhibit "), a copy of which, is attached hereto and incorporated herein by reference as if set out in full. NOW, THEREFORE WITNESSETH, for and in consideration of the payment of Ten Dollars, and in consideration of the mutual obligations of the parties hereto, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Recitals The recitals are incorporated herein and made a material part hereof as if set out in full. 2. Conditions Precedent: JEM's obligation and liability under the terms of this Agreement to make the Restaurant Property Improvements is expressly conditioned and subject to all of the following: i. Receipt of final, non- appealable approval of the Rezoning by the County of Frederick, Virginia (the "County"), or such other governing or judicial body 0 0 having jurisdiction thereof on or before October 1, 2009; and, ii. Receipt of final, non- appealable approval of the Site Plan by the County, or such other governmental agency having jurisdiction thereof on or before October 1, 2009; and, iii. Issuance of a building permit for the construction of a pharmacy (the "Pharmacy") upon the JEM Parcels by the County, or such other governmental agency having jurisdiction thereof on or before December 31, 2009; and, iv. There being no moratorium upon the construction of the Pharmacy or the provision of utility service to the Pharmacy located upon the JEM Parcels imposed by the County, or any other governmental agency or utility provider having jurisdiction thereof, which delays and /or stops the construction of the Pharmacy upon the JEM Parcels or the Restaurant Property Improvements. V. JEM, in its sole discretion may unilaterally extend any or all of the dates set forth above for up to two (2) years or waive any or all of the foregoing conditions. vi. Receipt of final, non - appealable approval of the Site Plan and issuance of a building permit by the County, or such other governmental agency having jurisdiction thereof for the construction of the Restaurant Property Improvements on or before December 31, 2009. Restaurant Property Improvements: i. The Restaurant Property Improvements shall consist of the following, as are more fully depicted on the attached Exhibit: a. A non- exclusive shared entrance from North Frederick Pike shall be constructed on the JEM Parcels to serve the Restaurant Property and the Pharmacy, the approximate location and design of which is depicted and labeled as "Shared Entrance" on the attached Exhibit. A temporary construction easement to construct the Restaurant Property Improvements and a permanent ingress /egress easement for the shared entrance over a portion of the JEM Parcels and the Restaurant Property and for vehicular and pedestrian traffic across the paved areas of the JEM Parcels and the Restaurant Property both in a form approved by JEM will be executed by Hassinger and JEM and recorded among the land records in the Clerk's Office of the Circuit Court of Frederick County, Virginia prior to construction of the Restaurant Property Improvements. b. The North Frederick Pike frontage along the Restaurant Property will be improved with curb and a bike path, as required by the County and the Virginia Department of Transportation, the approximate location and design of which is 0 0 having jurisdiction thereof on or before October 1, 2009; and, ii. Receipt of final, non - appealable approval of the Site Plan by the County or such other governmental agency having jurisdiction thereof on or before October 1, 2009; and, iii. Issuance of a building permit for the construction of a pharmacy (the "Pharmacy ") upon the JEM Parcels by the County, or such other governmental agency having jurisdiction thereof on or before December 31, 2009; and, iv. There being no moratorium upon the construction of the Pharmacy or the provision of utility service to the Pharmacy located upon the JEM Parcels imposed by the County, or any other governmental agency or utility provider having jurisdiction thereof, which delays and/or stops the construction of the Pharmacy upon the JEM Parcels or the Restaurant Property Improvements. V. JEM, in its sole discretion may unilaterally extend any or all of the dates set forth above for up to two (2) years or waive any or all of the foregoing conditions. vi. Receipt of final, non - appealable approval of the Site Plan and issuance of a building permit by the County, or such other governmental agency having jurisdiction thereof for the construction of the Restaurant Property Improvements on or before December 31, 2009. Restaurant Propertv Improvements: i. The Restaurant Property Improvements shall consist of the following, as are more fully depicted on the attached Exhibit: a. A non - exclusive shared entrance from North Frederick Pike shall be constructed on the JEM Parcels to serve the Restaurant Property and the Pharmacy, the approximate location and design of which is depicted and labeled as "Shared Entrance" on the attached Exhibit. A temporary construction easement to construct the Restaurant Property Improvements and a permanent ingress /egress easement for the shared entrance over a portion of the JEM Parcels and the Restaurant Property and for vehicular and pedestrian traffic across the paved areas of the JEM Parcels and the Restaurant Property both in a form approved by JEM will be executed by Hassinger and JEM and recorded among the land records in the Clerk's Office of the Circuit Court of Frederick County, Virginia prior to construction of the Restaurant Property Improvements. b. The North Frederick Pike frontage along the Restaurant Property will be improved with curb and a bike path, as required by the County and the Virginia Department of Transportation, the approximate location and design of which is 0 0 depicted and labeled as "Bicycle /Ped Path" on the attached Exhibit. C. An entrance to serve the Restaurant Property will be constructed from Shared Entrance off of North Frederick Pike, the approximate location and design of which is depicted and labeled as "Restaurant Entrance" on the attached Exhibit. d. The existing pylon sign located upon the Restaurant Property will remain in its current location and condition, the approximate location of which is depicted and labeled as "Existing Pylon Sign" on the attached Exhibit. e. A boundary line adjustment will be granted to cause approximately 4,100 square feet of land to be added to the Restaurant Property out of the JEM Parcels, the approximate location and layout of which is depicted and labeled as "Boundary Adjustment Area" on the attached Exhibit. f JEM will apply for the necessary approvals to construct a right out only exit onto North Frederick Pike as part of the Rezoning, the approximate location and design of which is depicted and labeled as "Right Out Exit" on the attached Exhibit; however, JEM does not warrant or guaranty that the approval for the Right Out Only Exit will be obtained. In the event the approval for the Right Out Exit is not obtained, JEM will have no further obligation related to the Right Out Exit including, but not limited to, any duty to appeal any decision not to grant approval for the Right Out Exit. ii. Provided that all of the terms and conditions of Section 2, above, have been met and fully satisfied, then and in that event, JEM agrees to make the Restaurant Property Improvements (or those of which JEM has received approval to construct) at such time as the Pharmacy is constructed upon the JEM Parcels. However, in the event that all of the terms and conditions of Section 2, above, are not met and satisfied in full to JEM's satisfaction, then and in that event, JEM shall have no liability or obligation whatsoever to construct the Restaurant Property Improvements to grant an ingress /egress easement for pedestrian and vehicular traffic across the paved areas of the JEM Parcels or make the Boundary Line Adjustment. In the event JEM does not receive approvals for the Rezoning, the Site Plan or for any of the Restaurant Property Improvements, JEM will have no further obligations related to this Agreement including, but not limited to, any duty to appeal any decision not to grant any of the approvals. iii. The Restaurant Property Improvements will be made at the sole cost and expense of JEM. 4. Notices: Any notice permitted or required by the provisions of this Agreement shall be deemed to have been given when delivered in writing as follows: 0 0 To JEM: JEM X, LLC Post Office Box 3538 Gastonia, North Carolina 28054 Attn: James E. Martin, Manager Fax: 704/867 -4273 To Hassinger: Robert E. Hassinger Joan B. Hassinger c/o Continental Restaurant 1361 North Frederick Pike Winchester, Virginia 22601 Fax: 540/ 5. Miscellaneous: i. This Agreement contains the entire agreement between JEM and Hassinger and supersedes any prior and /or contemporaneous negotiations, understandings and agreements, written or oral, between JEM and Hassinger. This Agreement shall not be amended or modified except by written instrument executed by the parties hereto. ii. This Agreement shall be governed by the laws of the Commonwealth of Virginia. It is understood and agreed by the parties to this Agreement that if any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law of the Commonwealth of Virginia, the validity of the remaining portions or provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the part, term or provision held to be invalid. iii. This Agreement will extend to and be binding upon the heirs, personal representative, successors and assigns of the parties hereto and may be recorded at JEM's election. iv. Time is of the essence as to all matters set forth herein. V. I- lassinger agrees to cooperate with JEM and to promptly execute and deliver to JEM all such applications, drawings, plats, certifications, easements, dedications and other documents that JEM or its agents request to obtain the approvals and to satisfy all of the terms and conditions of this Agreement. WITNESS the following signatures and seals: L 0 To JEM: JEM X, LLC Post Office Box 3538 Gastonia, North Carolina 28054 Attn: James E. Martin, Manager Fax: 704/867 -4273 To Hassinger: Robert E. Hassinger Joan B. Hassinger c/o Continental Restaurant 1361 North Frederick Pike Winchester, Virginia 22601 Fax: 540/ 5. Miscellaneous: i. This Agreement contains the entire agreement between JEM and Hassinger and supersedes any prior and/or contemporaneous negotiations, understandings and agreements, written or oral, between JEM and Hassinger. This Agreement shall not be amended or modified except by written instrument executed by the parties hereto. ii. This Agreement shall be governed by the laws of the Commonwealth of Virginia. It is understood and agreed by the parties to this Agreement that if any part, term, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law of the Commonwealth of Virginia, the validity of the remaining portions or provisions shall not be affected and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the part, term or provision held to be invalid. iii. This Agreement will extend to and be binding upon the heirs, personal representative, successors and assigns of the parties hereto and may be recorded at JEM's election. iv. Time is of the essence as to all matters set forth herein. V. Hassinger agrees to cooperate with JEM and to promptly execute and deliver to JEM all such applications, drawings, plats, certifications, easements dedications and other documents that JEM or its agents request to obtain the approvals and to satisfy all of the terms and conditions of this Agreement. WITNESS the following signatures and seals: 0 WITNESS: I n u JEM X, LLC BY: James E. Martin, Manager (SEAL) ' 11613WRT E. SSINGE % - a 'a 4 (SEAL) JOA B. HASSINGER G: \wpdata\2392.040VEM - Hassinger Agrclean091608.doc 0 0 U� 1®R'�74 ERIC ROUTl -- V 0 UT N BO U N D LA NES — SHARED ENTRANCE F— BICYCLE /PED PATH I RIGHT OUT EXIT l fillllllllllll I J7 I l I ` lllll iv EXISTING PYLON SIGN � RESTAURANT ENTRANCE r �_1 i EASEMENT �. I _t d' r' I / J � I BOUNDARY ADJUSTMENT ' a PAINTER- LEWIS, P.L.C PROJECT: SURVEY c R - L N 817 Cedar Creek Grade. Suite 120 PROPERTY DRAWN BY: JOB NO.: Winchester, Virginia 22601 IMPROVEMENT PLAN JCL 0803 SCALE: D ATE: Telephone (540)662 -5792 PIN #53A -2 -D -C 540 662 -5793 SHEET: 09 Facsimile CONSULTING ( ) SHEET: ENGINEERS Email office@painterlewis.com HASSINGER - EXHIBIT 0 0 Rom U ' S ' N ROU7 FRED - -`- - -- - -� — E 522E S- ej� p -' -�- —�— HBp S' L AIVE SHARED ENTRANCE — BICYCLE /PED PATH _ EXISTING PYLON SIG _ RESTAURANT ENTRANCE V EASEMENT � �II i RIGHT OUT EXIT I 1 i [ :::3 ACJUSTMENT ' ® 11 i 1 I J �] p g� PAINTER- LEWIS, P.L.C. PROJECT: SURVEY: C. L: F -L NA DRAWN BY: JOB NO.: JCL 0803 617 Cedar Creek Grade, Suite 120 Winchester, Vir 22601 PROPERTY IMPROVEMENT PLAN SCALE: DATE: ATE: Telephone (540)662 -5792 PIN #53A -2 —D —C I =5D.o' 09 /15/08 CONSULTING Facsimile (540)662 -5793 ENGINEERS Email office0pointerlewis.com SHEET: HASSINGER - EXHIBIT r 0 REZONING APPLICATION 407 -08 UNGER PROPERTY Staff Report for the Planning Commission Prepared: September 4, 2008 Staff Contact: Candice E. Perkins. AICP. Senior Planner This report is prepared by the Frederick County Planning Staff to provide information to the Planning Commission and the Board of Supervisors to assist them in making a decision on this application. It may also be useful to others interested in this zoning matter. Unresolved issues concerning this application are noted by staff where relevant throughout this staff report, Reviewed Action Planning Commission: 09/17/08 Pending Board of Supervisors: 10/08/08 Pending PROPOSAL To rezone .49 acres from B2 (General Business) District to B2 with proffers, and .85 acres from RP (Residential Performance) District to B2 (Business General) with proffers. LOCATION The properties are located on North Frederick Pike (Route 522) between Westminster Canterbury Drive and Hickory Lane. MAGISTERIAL DISTRICT Stonewall PROPERTY ID NUMBERS 53A -A -5 and 53A -A -6 PROPERTY ZONING B2 (Business General) and RP (Residential Performance) PRESENT USE Commercial and Residential ADJOINING PROPERTY ZONING & PRESENT USE North: B2 (Business General) Use: Commercial — Stonewall Plaza South: RP (Residential Performance) Use: Residential East: B2 (Business General) Use: Commercial — Continental Restaurant RP (Residential Performance) Use: Residential West: B2 (Business General) Use: Commercial PROPOSED USE Commercial Use (13,225sf Pharmacy) • REZONING APPLICATION FORM FREDERICK COUNTY, VIRGINIA be completed by Planning ing Amendment N pluber Hearing Date 9 1"7' & Fee Amount Paid $ Date Received BOS Hearing Date �Q' _: - The following information shall be provided by the applicant; All parcel identification, numbers, deed book and page numbers may be obtained from the Office of the Commissioner of Revenue, Real Estate Division, 107 North Kent Street, Winchester. 1. Applicant: Name: P�1i terms S L Telephone: CO - S7q ,) Address: �11 Quia r L C�VczdL, Slll �a� Win Gh UA �oL_ • 2. Property Owner (if different than above) Name: V eMon. Cttd fYan 11 WCt Telephone: X40 ��G - SG -n Address: 5 BGdw DO ye 3. Contact person if other than above Name: NA Telephone: A. Checklist: Check the following_ items that have been included with this application. Location map Agency Comments _ Plat Fees Deed to property' Verification of taxes paid Impact Analysis Statement Proffer Statement • 10 0 • 0 5. The Code of Virginia allows its to request full disclosure of ownership in relation to rezoning applications. Please list below all owners or parties in interest of the land to be rezoned: Frances O nc elm 6. A) Current Use of the Property: S I U 6n - h Cd B) Proposed Use ofthe Property: �vnmeic� i 7. Adjoining Property: PARCEL ID NUMBER (B3A- 9- D - 3 53A a -p - 5_�,a - a - D - 1 53A - a - C 5_ 4-a -I) 5�- 4 -a -ol 53i3 - -It 6 USE (�fcle ntu l ZONING RP RIP sA �a a a RP 8. Location: The property is located at (give exact location based on nearest road and distance from nearest intersection, using road names and route numbers): • 11. 0 • 9. The following information should be provided according to the type of rezoning proposed : Number of Units Proposed Single Family homes: Townhome: Multi- Family: Non - Residential Lots: Mobile Home: Hotel Rooms: Square Footage of Proposed rases Office: Service Station: Retail: Manufacturing: Restaurant: Warehouse: Other: 10. Signature: I (we), the undersigned, do hereby respectfully make application and petition the Frederick County Board of Supervisors to amend the zoning ordinance and to change the zoning map of Frederick County, Virginia. .I (we) authorize Frederick County officials to enter the property for site; inspection purposes. • I (we) understand that the -sign issued when this application is submitted must be placed at the front property line at leasf,seven days prior to the Planning Commission public hearing and the Board of Supervisors' public hearing and maintained so as to be visible from the road right -of -way until the hearing. I (we) hereby certify that this application and its accompanying materials are true and accurate to the best of my (our): knowledge. Applicant(s): �( Date: O U Date: Owner(s): Date: '6 — L — a g Date: • 12 0 0 0 11 Department of Planning & Development, County of Frederick, Virginia, - P 107 North Kent Street, Suite 202 Wineltester, Virginia 22601 Facsimile 540 -665 -6395 Phone 540 -669 -5651 Special Limited Power of Attorney County of Frederick, Virginia Frederick Planning. Web Site: wlvw.co,fred _ us Know All Men By Those Present: That 1 (We) (Name) AL n O 1 FrgY1C�5 PY _ (Phone) 540' (oq - `oq (Address) 11q two Lie ► Dl e s hens Q, VA � as (, SS the otaorer(s) of all those tracts or parcels of baud (' ed to Inc (us), by deed recorded in the Clerks Office of the Circuit Court of the County of Frederick, Virginia, by Instrument No. � rf � _ on Page e c7 and is described as Parcel: :: (o Lot: A Block: X Section: Subdivision: do hereby make, constitute and appoint: (Name) �'a�ntex 1�l�ts LrG (Plioll0 b 57el a described Property, including: Rezoning (including proffers) Conditional Use Permit Master Development Plan (Preliminary and Final) Subdivision Site Plan Variance or Appeal Comprehensive Policy Plan Amendment (Address) I UeGi'2r— LACeK l, 1e W II lU V�01u v aorrv/ To act as my true and lawful attorney -in -fact for and in my (our) name, place, and stead with full power and authority I (me) would have if acting personally to file planning applications for my (our) above NIy attorney -in -fact shall have the authority to offer proffered conditions and to make amendments to previously approved proffered conditions except as follows: This authorization shall expire one year from the day it is signed, or until it is otherwise rescinded or modificd. O %����,,���� ==` In wi6ress thereof, I (we) bave hereto set my (our (P ) hand and seal this day of , 200 ' �,r T c Signature(s) State of Virginia, City /County of �A�l�1l �iatC� To- wit: = °= I 1 Lo Fr de a Notary Public in and for the juris : 0' , aforesaid, certify that the persons) who signed to the foregoing instrument personally eppeared hefoi'am and has aelarowledged the same before Inc in thejurisdietion aforesaid this clay of _O _, 20Q�t i` iv Commission Expires: N ky Public ReN rsed 3/17%08 c; • • • Unger Property TM# 53A -A -6 Rezoning Street Addresses of Properties wli 300 feet Name and Property Identification Number Owner Address Name: Unger, Vernon B. & Frances 5179 Barley Drive Property # 53A -A -5 Stephens City, VA 22655 Name: Kipps, Almira 106 Hickory Lane Property # 53A -2 -D -3 Winchester, VA 22603 Name: Upper Crust, LLC 112 A Bruce Street Property # 53 -4 -3 -D Winchester, VA 22601 Name: Upper Crust, LLC 112 A Bruce Street Property # 53- 4 -3 -D1 Winchester, VA 22601 Name: Wrenn, Gerald A. Jr. & Jami El 104 Hickory Lane Property # 53A -2 -D -2 Winchester, VA 22603 Name: Clark, Robert 102 Hickory Lane Property # 53A -2 -D -1 Winchester, VA 22603 Name: Harvest Communities, Inc 147 Creekside Lane Property # 53B -5 -11B Winchester, VA 22602 Name: Hassinger, Robert 108 Lisa's Drive Property # 53A -2 -C Winchester, VA 22603 Name: MP, LLC 1205 Caroline Street Property # 53D -3 -1 Winchester, VA Name: MP, LLC 1205 Caroline Street Property # 53D -3 -4 Winchester, VA 14 0 0 Rezoning #07 -08 — Unger Property August 19, 2008 Page 2 REVIEW EVALUATIONS: Virginia Department of Transportation: The documentation within the application to rezone this property appears to have significant measurable impact on Routes 522 North and 1318. These routes are the VDOT roadways which have been considered as the access to the property referenced. VDOT is not satisfied that the transportation proffers offered in the Unger Property Rezoning application dated July 15, 2008 address transportation concerns associated with this request. We offer the following comment: We feel the proffer statement should include closing the first crossover to the south and provide a left turn lane at the second crossover to the south to accommodate U- turns. Before development, this office will require a complete set of construction plans detailing entrance designs, drainage features, and traffic flow data from the I.T.E. Trip Generation Manual, Seventh Edition for review. VDOT reserves the right to comment on all right -of -way needs, including right -of -way dedications, traffic signalization, and off -site roadway improvements and drainage. Any work performed on the State's right -of -way must be covered under a land use permit. This permit is issued by this office and requires an inspection fee and surety bond coverage. Staff Note: The revised proffers for the rezoning address the closure of the crossover cis well as the turn lane. Fire Marshall: Plan approval recommended. Department of Public Works: We have no comments at this time. We reserve the right to perform a detailed review of the site plan submitted for the proposed commercial property. Frederick - Winchester Service Authoritv: No comments. Sanitation Authority Department: There is adequate sewer and water capacity to serve this site. Department of Parks & Recreation: No comment. Health Department: Health Department has no objections to the rezoning request. Winchester Regional Airport: The proposed development plan will not have an impact on operations at the Winchester Regional Airport. While the proposed site lies within the airport's airspace, it does fall outside of the airport's Part 77 close in surfaces. Frederick County Public Schools: We offer no comments. Attornev Comments: It is my opinion that the Proffer Statement would be in a form to meet the requirements of the Frederick Country Zoning Ordinance and the Code of Virginia, and would be legally sufficient as a proffer statement, subject to the following: Introductory paragraph — Concerning subsequent amendments or revisions to the proffers, to read more clearly, "and such are approved by the Board of Supervisors" should read "and such subsequent amendments or revisions to such conditions are approved by the Board of Supervisors ". Also, the reference to "TM #s 53A -A -6" should not include the plural "s" and, in the last sentence of the paragraph, "owner' should be plural. Proffer 1 — The • Rezoning #07 -08 — Unger Property August 19, 2008 Page 3 proffer should state that the use and development of the subject property shall be inconformity with the Generalized Development Plan (GDP) dated 7/8/08, identified as "GDP ", and which is attached to the proffer statement, and should then indicate the matters that the GDP reflects. Proffer 2b —To avoid any later ambiguities, the references to the parcels served by the entrance should be generic, that is, to the subject parcel and to TM# 53A -2 -C (or, if greater specificity was intended or desired concerning the neighboring property in particular, the proffer could state "... to the subject parcel and to the commercial establishment [or, for more specificity, "the restaurant] on TM# 53A- 2- C... "). Proffer 3 — For consistency with the terminology of the Zoning Ordinance, the applicant may wish to change "pharmacy" to "drugstore ". For clarity, the reference to square footage and improvements would read better as "containing a floor area of approximately 13,225 square feet and associated improvements... ". The last part of the proffer should state that the structure /improvements will be constructed in conformity with the GDP. Proffer 5 — The GDP does not show the referenced easements. Closing paragraph — The reference to "owner" should be plural. The final version of the rezoning application form will need to indicate the capacity in which the signatory for the applicant is acting (e.g., title) and, as well, the form and the proffers will need to be signed by both owners. I have not reviewed the substance of the proffers as to whether the proffers are suitable and appropriate for this specific development, as it is my understanding that that review will be done by staff and the Planning Commission. Staff Comment: The County Attorney's comments have been addressed by the revised proffer statement. Planning Department: Please see attached letter dated July 31, 2008, and signed by Candice E. Perkins. Senior Planner. Planning & Zoning: 1) Site History The original Frederick County Zoning Map (U.S.G.S. Winchester Quadrangle) depicts the zoning of both parcels as B -2 (Business General) District. In 1980, parcel 53A -A -6 was included in the County's comprehensive downzoning and was changed from B2 to R -3 (Residential Limited) District. The zoning changed to RP (Residential General) District on September 28, 1983 when the R1, R2, R3, and R6 zoning districts were reclassified. 2) Comprehensive Policy Plan The Frederick County Comprehensive Policy Plan is an official public document that serves as the community's guide for making decisions regarding development, preservation, public facilities and other key components of community life. The primary goal of this plan is to protect and improve the living environment within Frederick County. It is in essence a composition of policies used to plan for the future physical development of Frederick County. [Comprehensive Policy Plan, p. 1 -]] 0 0 Rezoning #07 -08 — Unger Property August 19, 2008 Page 4 Land Use The subject properties are within the limits of the Sewer and Water Service Area (SWSA). The Sewer and Water Service Area defines the general area in which more intensive forms of planned commercial, and industrial development will occur. The properties are within the limits of the Eastern Frederick County Long Range Land Use Plan. The plan shows this area with a commercial land use designation. The applicant is requesting a rezoning to the B2 (Business General) Zoning District and therefore this request is in general conformance with the Comprehensive Policy Plan. Transportation and Site Access The subject site is currently accessible via North Frederick Pike (Route 522). As shown on the Generalized Development Plan (GDP), the proposed use is a CVS Pharmacy that will be developed on four parcels of land. The GDP shows the ultimate access for the site as being from one entrance on Westminster- Canterbury Drive (Route 1318) and a right in /right out on North Frederick Pike (Route 522). The new entrance on Route 522 will be a shared entrance with the adjacent Continental Restaurant property. The proffers for the rezoning account for the closure of the existing entrances on the Continental Restaurant property and the construction of a new shared right -in /right -out entrance on Route 522 as well as the construction of a new right out on the Continental Restaurant site as shown on the GDP. The proffers and GPD account for the construction of a sidewalk along Westminster - Canterbury Drive and a ten foot bicycle /pedestrian path along Route 522. This application also accounts for the closure of the crossover on Route 522 and Hickory Lane as well as the construction of a left turn lane at the second crossover to the south of the site on Route 522. 3) Site Suitability/Environment No flood plains, lakes or ponds, wetlands, sinkholes, steep slopes, or other environmental features have been identified. The General Soil Map of the Soil Survey of Frederick County, Virginia indicates that the soils comprising the subject parcel fall under the Frederick- Porlimento Loams soil association (14B). These soil types are gently to strongly sloping, well- drained, and deep. 4) Potential Impacts A. Transportation Waiver Request In conjunction with this rezoning application, the applicant is requesting an entrance spacing waiver on Route 522. As shown on the GDP, the applicant is proposing to have a right- in/right- out entrance on Route 522 which is less than 200 feet from the existing entrance on the adjacent property (The Continental Restaurant). 0 0 Rezoning #07 -08 — Unger Property August 19, 2008 Page 5 In accordance with Section 165 - 2913(1), the Planning Commission may allow other means of motor vehicle access which do not meet the requirements set forth in 165 -29, which is the section of the Zoning Ordinance that establishes entrance spacing requirements. The approval of this waiver request would allow this property to develop a pharmacy use with a new entrance that would be adjacent to the existing entrance on the Continental Restaurant property. If the rezoning application and the waiver request are granted, then the site will develop as a pharmacy consistent with the GDP. 5) Proffer Statement — Dated July 15, 2008, Revised August 6, 2008 and September 3, 2008 A) Generalized Development Plan • The use and development of the property shall be in conformance with the Generalized Development Plan. I3) Improvements to Route 522 and Route 1318 • Design and construction of a right turn lane eastbound into the site along the frontage of the site and extending along the frontage of PIN 53A -2 -C (Continental Restaurant). • Design and construction of a right in/right out entrance from Route 522 to serve the subject parcel and PIN 53A -2 -C (Continental Restaurant). • Design and construction of a right turn lane northbound on Route 1318 at its intersection with Route 522. • Design and construct a right out exit from PIN 53A -2 -C (Continental Restaurant). • Design and construction of the closure of the crossover on Route 522 at Hickory Lane. • Design and construction of a left turn lane at the second crossover to the south on Route 522. • Design and construction of a 10 foot wide asphalt bicycle /pedestrian path along the Route 522 frontage and a sidewalk along the Route 1318 frontage as shown on the GDP. C) Parcel Usage • The use of the site is limited to a pharmacy containing 13,255 square feet and improvements shall be constructed as shown on the GDP. D) Monetary Contribution • $1,000 to Fire and Rescue E) Inter - Parcel Circulation and Access e An Interparcel access easement shall be created for the benefit of PIN 53A -2 -C (Continental Restaurant) as shown on the GDP. F) Inter - Parcel Circulation and Access 9 • Rezoning 907 -08 — Unger Property August 19, 2008 Page 6 An Interparcel access easement shall be created for the benefit of PIN 53A -2 -C (Continental Restaurant) as shown on the GDP. G) Drainage Improvements for Westbury Commons • The applicant agrees to design and install drainage structures which will collect the storm water discharge from the stormwater management facility on the Westbury Commons site and convey the discharge to the Route 522 drainage system. These drainage structures will be installed only under the conditions that 1) the property owners of Westbury Commons grant reasonable access to the property and 2) said access is granted prior to the commencement of construction of the proposed pharmacy. The applicant agrees to create a 10' drainage easement for the benefit of Westbury Commons running through the site to allow for the conveyance of storm water runoff from Westbury Commons to the Route 522 drainage system. STAFF CONCLUSIONS FOR 09/03/08 PLANNING COMMISSION MEETING: This is an application to rezone two parcels totaling 1.34 acres from the RP (Residential Performance) and the B2 (Business General) District to the B2 District with proffers to accommodate a proposed pharmacy. The land use proposed in this application is consistent with the Comprehensive Policy Plan, as described in the Eastern Frederick County Long Range Land Use Plan. A recommendation by the Plannin Commission to the Board of Supervisors concerning this rezoning application would be appropriate. The applicant should be prepared to adequately address all concerns raised bV the Planning- Commission. 5330 _ t� • 0 REZONING APPLICATION #07 -08 UNGER PROPERTY Staff Report for the Planning Commission Prepared: August 19, 2008 Staff Contact: Candice E. Perkins, AICP, Senior Planner This report is prepared by the Frederick County Planning Staff to provide information to the Planning Commission and the Board of Supervisors to assist them in making a decision on this application. It may also be useful to others interested in this zoning matter. Unresolved issues concerning this application are noted by staff where relevant throughout this staff report. Reviewed Planning Commission: 09/03/08 Board of Supervisors: 09/24/08 Action Pending Pending PROPOSAL To rezone .49 acres from B2 (General Business) District to B2 with proffers, and .85 acres from RP (Residential Performance) District to B2 (Business General) with proffers. LOCATION The properties are located on North Frederick Pike (Route 522) between Westminster Canterbury Drive and Hickory Lane. MAGISTERIAL DISTRICT Stonewall PROPERTY ID NUMBERS 53A -A -5 and 53A -A -6 PROPERTY ZONING B2 (Business General) and RP (Residential Performance) PRESENT USE Commercial and Residential ADJOINING PROPERTY ZONING & PRESENT USE North: B2 (Business General) South: RP (Residential Performance) East: B2 (Business General) RP (Residential Performance) West: B2 (Business General) Use: Commercial— Stonewall Plaza Use: Residential Use: Commercial — Continental Restaurant Use: Residential Use: Commercial PROPOSED USE Commercial Use (13,225sf CVS Pharmacy) 9 0 Rezoning 407 -08 — Unger Property August 19, 2008 Page 2 REVIEW EVALUATIONS: Virginia Department of Transportation: The documentation within the application to rezone this property appears to have significant measurable impact on Routes 522 North and 1318. These routes are the V DOT roadways which have been considered as the access to the property referenced. V DOT is not satisfied that the transportation proffers offered in the Unger Property Rezoning application dated July 15, 2008 address transportation concerns associated with this request. We offer the following comment: We feel the proffer statement should include closing the first crossover to the south and provide a left turn lane at the second crossover to the south to accommodate U- turns. Before development, this office will require a complete set of construction plans detailing entrance designs, drainage features, and traffic flow data from the I.T.E. Trip Generation Manual, Seventh Edition for review. VDOT reserves the right to comment on all right-of-way needs, including right -of -way dedications, traffic signalization, and off -site roadway improvements and drainage. Any work perfonned on the State's right -of -way must be covered under a land use permit. This permit is issued by this office and requires an inspection fee and surety bond coverage. Staff Note: The revised proffers for the rezoning address the closure of the crossover as well as the turn lane. Fire Marshall: Plan approval recommended. Department of Public Works: We have no comments at this time. We reserve the right to perform a detailed review of the site plan submitted for the proposed commercial property. Frederick - Winchester Service Authority: No comments. Sanitation Authority Department: There is adequate sewer and water capacity to serve this site. Department of Parks & Recreation: No comment. Health Department: Health Department has no objections to the rezoning request. Winchester Regional Airport: The proposed development plan will not have an impact on operations at the Winchester Regional Airport. While the proposed site lies within the airport's airspace, it does fall outside of the airport's Part 77 close in surfaces. Frederick County Public Schools: We offer no comments. Attornev Comments: It is my opinion that the Proffer Statement would be in a form to meet the requirements of the Frederick Country Zoning Ordinance and the Code of Virginia, and would be legally sufficient as a proffer statement, subject to the following: Introductory paragraph — Concerning subsequent amendments or revisions to the proffers, to read more clearly, "and such are approved by the Board of Supervisors" should read "and such subsequent amendments or revisions to such conditions are approved by the Board of Supervisors ". Also, the reference to "TM #s 53A -A -6" should not include the plural "s" and, in the last sentence of the paragraph, "owner" should be plural. Proffer I — The 9 Rezoning 407 -08 — Unger Property August 19, 2008 Page 3 proffer should state that the use and development of the subject property shall be in conformity with the Generalized Development Plan (GDP) dated 7 /8/08, identified as "GDP ", and which is attached to the proffer statement, and should then indicate the matters that the GDP reflects. Proffer 2b —To avoid any later ambiguities, the references to the parcels served by the entrance should be generic, that is, to the subject parcel and to TM# 53A -2 -C (or, if greater specificity was intended or desired concerning the neighboring property in particular, the proffer could state " ... to the subject parcel and to the commercial establishment [or, for more specificity, "the restaurant] on TM# 53A- 2- C... "). Proffer 3 — For consistency with the terminology of the Zoning Ordinance, the applicant may wish to change "pharmacy" to "drugstore ". For clarity, the reference to square footage and improvements would read better as "containing a floor area of approximately 13,225 square feet and associated improvements ... 7 '. The last part of the proffer should state that the structure /improvements will be constructed in conformity with the GDP. Proffer 5 — The GDP does not show the referenced easements. Closing paragraph — The reference to "owner" should be plural. The final version of the rezoning application form will need to indicate the capacity in which the signatory for the applicant is acting (e.g., title) and, as well, the form and the proffers will need to be signed by both owners. I have not reviewed the substance of the proffers as to whether the proffers are suitable and appropriate for this specific development, as it is my understanding that that review will be done by staff and the Planning Commission. Staff Comment: The County Attorney's comments have been addressed by the revised proffer statement. Planning Department: Please see attached letter dated July 31, 2008, and signed by Candice E. Perkins, Senior Planner. Planning & Zoning: 1) Site History The. original Frederick County Zoning Map (U.S.G.S. Winchester Quadrangle) depicts the zoning of both parcels as B -2 (Business General) District. In 1980, parcel 53A -A -6 was included in the County's comprehensive downzoning and was changed from B2 to R -3 (Residential Limited) District The zoning changed to RP (Residential General) District on September 28, 1983 when the RE R2, R3, and R6 zoning districts were reclassified. 2) Comprehensive Poliev Plan The Frederick County Comprehensive Policy Plan is an official public document that serves as the community's guide for making decisions regarding development, preservation, public facilities and other key components of community life. The primary goal of this plan is to protect and improve the living environment within Frederick County. It is in essence a composition of policies used to plan for the future physical development of Frederick County. [Comprehensive Policy Plan, p. 1 -1] 0 Rezoning 4+07 -08 — Unger Property August 19, 2008 Page 4 Land Use The subject properties are within the limits of the Sewer and Water Service Area (S WSA). The Sewer and Water Service Area defines the general area in which more intensive forms of planned commercial, and industrial development will occur. The properties are within the limits of the Eastern Frederick County Long Range Land Use Plan. The plan shows this area with a commercial land use designation. The applicant is requesting a rezoning to the B2 (Business General) Zoning District and therefore this request is in general conformance with the Comprehensive Policy Plan. Transportation and Site Access The subject site is currently accessible via North Frederick Pike (Route 522). As shown on the Generalized Development Plan (GDP), the proposed use is a CVS Pharmacy that will be developed on four parcels of land. The GDP shows the ultimate access for the site as being from one entrance on Westminster - Canterbury Drive (Route 1318) and a right in /right out on North Frederick Pike (Route 522). This application also accounts for the closure of the crossover on Route 522 and Hickory Lane as well as the construction of a left turn lane at the second crossover to the south of the site on Route 522. 3) Site Suitabilitv/Environment No flood plains, lakes or ponds, wetlands, sinkholes, steep slopes, or other environmental features have been identified. The General Soil Map of the Soil Survey of Frederick County. Virginia indicates that the soils comprising the subject parcel fall under the Frederick - Poplimento Loams soil association (14B). These soil types are generally to strongly sloping, well - drained and deep. 4) Potential Impacts A. Transportation Waiver Request In conjunction with this rezoning application, the applicant is requesting an entrance spacing waiver on Route 522. As shown on the GDP, the applicant is proposing to have a right-in/right- out entrance on Route 522 which is less than 200 feet from the existing entrance on the adjacent property (The Continental Restaurant). In accordance with Section 165- 29B(l), the Planning Commission may allow other means of motor vehicle access which do not meet the requirements set forth in 165 -29, which is the section of the Zoning Ordinance that establishes entrance spacing requirements. The approval of this waiver request would allow this property to develop a pharmacy use with a new entrance that would be adjacent to the existing entrance on the Continental Restaurant property. If the rezoning application and the waiver request are granted, then the site will develop as a pharmacy consistent with the GDP. 0 0 Rezoning 407 -08 — Unger Property August 19, 2008 Page 5 5) Proffer Statement — Dated July 15, 2008, Revised August 8, 2008 A) Generalized Development Plan • The use and development of the property shall be in conformance with the Generalized Development Plan. B) Improvements to Route 522 and Route 1318 • Design and construction of a right turn lane eastbound into the site along the frontage of the site. • Design and construction of a right in /right out entrance from Route 522 to serve the subject parcel. (Staff Note: The location of this entrance is subject to the entrance spacing waiver request). • Design and construction of the closure of the crossover on Route 522 at Hickory Lane. • Design and construction of a left turn lane at the second crossover to the south on Route 522. • Design and construction of 10 foot wide asphalt bicycle /pedestrian path along the Route 522 frontage and a sidewalk along the Route 1318 frontage. STAFF CONCLUSIONS FOR 09/03/08 PLANNING COMMISSION MEETING: This is an application to rezone two parcels totaling 1.34 acres from the RP (Residential Performance) and the B2 (Business General) District to the B2 District with proffers to accommodate a proposed pharmacy. The land use proposed in this application is consistent with the Comprehensive Policy Plan, as described in the Eastern Frederick County Long Range Land Use Plan. With this application, the applicant is also requesting that the Planning Commission grant them an entrance spacing waiver. This is strictly a Planning Commission waiver; action from the Board of Supervisors is not required. Staff would note that there are two actions required with this application, a decision on the waiver request and a recommendation to the Board of Supervisors on the rezoning application. Following the requirement for a public hearing, a decision on the waiver request and a recommendation on lire rezoning application by the Planning Commission to the Board of Supervisors concerning this application would be appropriate. The applicant should be prepared to adequately address all concerns raised bl the Planning Commission. • 6 UNGER PROPERTY i f F rederic k P oke � Rezoning #: Property: PARCEL ID: 53A -A -5: 0.49 acres PARCEL ID: 53A -A -6: 0.85 acres Recorded Owner: Frances A. Unger Applicant: Painter - Lewis, PLC 817 Cedar Creek Grade, Suite 120 Winchester, Virginia 22601 Project Name: Unger Property TM # 53A -A -6, 53A -A -5 Original Date of Proffers: July 15, 2008 Revision Date(s): August 8, 2008 Prepared by: PAINTER- LEWIS, P.L.C. 817 Cedar Creek Grade, Suite 120 Winchester, VA 22601 Tel.: (540) 662 -5792 email: office @painterlewis.com Job Number: 0803001 PROFFER STATEMEN • PARCEL ID: 53A -A -6, 53A -A -5 • Pursuant to the applicable provisions of the Frederick County Zoning Ordinance, the undersigned applicant proffers that in the event that the Board of Supervisors of Frederick County shall approve Rezoning Application # 01-09 for the rezoning of parcels TM# 53A- A-6 from RP to B2 and 53A -A -5 from B2 to B2, the use and development of the subject property shall be in strict conformance with the following conditions set forth in this proffer except to the extent that such conditions may be subsequently amended or revised by the applicant and such subsequent amendments or revisions to such conditions are approved by the Board of Supervisors in accordance with the Code of Virginia and the Frederick County Zoning Ordinance. These proffers shall be binding on the owner and their legal successors or assigns. PROFFERS 1.) Generalized Development Plan The use and development of the subject property shall be in conformity with the Generalized Development Plan, identified as "GDP" and dated 08/06/08 and which is attached to the proffer statement. The GDP is for the purpose of identifying the general configuration of the proposed commercial development, the use of the site, the location of interparcel access easements, and construction improvements to Route 522 and Route 1318. 2.) Improvements to Route 522 and Route 1318 • The applicant will make the necessary road frontage improvements, as required by Virginia Department of Transportation, to Route 522 and Route 1318 in support of the proposed development. The improvements will be designed and submitted for approval to the Virginia Department of Transportation and Frederick County Planning during the site plan review process. All improvements listed below and approved by VDOT will be constructed prior to issuance of a certificate of occupancy for the proposed pharmacy. The improvements will include: a) The design and construction of a right turn lane eastbound into the site along the frontage of the site; b) The design and construction of a right in /right out entrance from Route 522 to serve the subject parcel; c) The design and construction of a right turn lane northbound on Route 1318 at its intersection with Route 522; d) The design and construction of the closure of the crossover on Route 522 at Hickory Lane; e) The design and construction of a left turn lane at the second crossover to the south on Route 522. f) The design and construction of a 10' wide, asphalt bicycle /pedestrian path along the Route 522 frontage and sidewalk along the Route 1318 frontage as generally depicted on the GDP. page 2 PROFFER STATEME0 • PARCEL ID: 53A -A -6, 53A -A -5 • 3.) Parcel Usage The applicant agrees to limit the use of the parcel to that of a pharmacy containing approximately 13,225 square feet and associated improvements that will be constructed as generally shown on the GDP. 4.) Monetary Contribution to Frederick County Service Organizations The applicant will donate or will cause to be paid to the Treasurer of Frederick County for the benefit of the Round Hill Community Volunteer Fire and Rescue Company the sum of $1,000.00 for impacts to fire and rescue services. This sum will be paid upon the receipt of the first building permit issued for the site. 5.) Inter - parcel Circulation and Access The applicant agrees to provide an interparcel access easement for the benefit of the parcel identified by PIN 53A -2 -C located to the east of the site. The general location of the easement is shown on the GDP. The easement will be created with the first site plan for the development of the site. The conditions proffered above shall be binding on the heirs, executors, administrators, assigns, and successors in the interest of the owner. In the event that the Frederick • County Board of Supervisors grant this rezoning and accepts these proffers, then these proffers shall apply to the land rezoned in addition to the other requirements of the Frederick County Code. Submitted By: Frances A. Unger City /County of k / IVICky k4c Commonwealth Of Virginia. The foregoing instrument was acknowledged before me this day of ,200 \ \\t Notyy Public JU _ Notary Registration number. 0 47q I fF • My commission expires: �� `o —�/ ��✓'�' °° ��c" a` page 3 • 1 I 1 �- N 1 1 I I 1 J 1 i H / 'J R0L TE : -,' 8 13 1 r � I 1 1 SM LI _ S �_, IQ 3( -1 !I 11 - Cum m N I I Z N I I / > N I D m I I Z ti I I N I I I I / n 1 / - 1 I - I / I I , I I I 1 HICKO I r O M 0 z 0 c I 1 I AO C .ZJ Z / z z Im I C I C� I r x '1: 1 I ! i' � I li I/ I� , I ; / v jf i 1 I i 1 % i I I I 11 Ij l /I ! L' 1 i L ! i � 1 � O x � W C A z z m I �O O y M z Z m , I r/ ?4 m 1 zX I i 0 % o I o z M 0 o O 2 D I � PAINTER- LEWIS, P.L.C. PROJECT: U I 817 Cedar Creek Grade, Suite 120 I I Winchester, Virginia 22601 GENERALIZED DEVELOPMENT co 0 o !I +• IZI o , i t / / � I CONSULTING Facsimile (540)662 -5793 FREDERICK CO., VIRGIN � I fri Z i1 i I r x '1: 1 I ! i' � I li I/ I� , I ; / v jf i 1 I i 1 % i I I I 11 Ij l /I ! L' 1 i L ! i � 1 � O x � W C A z z m I �O O y M z Z m , I r/ ?4 m 1 zX I i 0 % o I o z M 0 o O 2 D I � PAINTER- LEWIS, P.L.C. PROJECT: U 817 Cedar Creek Grade, Suite 120 M I r x '1: 1 I ! i' � I li I/ I� , I ; / v jf i 1 I i 1 % i I I I 11 Ij l /I ! L' 1 i L ! i � 1 � O x � W C A z z m I �O O y M z Z m , I r/ ?4 m 1 zX I i 0 % o I o z M 0 o O 2 D � PAINTER- LEWIS, P.L.C. PROJECT: m m 817 Cedar Creek Grade, Suite 120 TM : 53A —A -6, 53A —A { Winchester, Virginia 22601 GENERALIZED DEVELOPMENT co 0 o Telephone (540)662 -5792 ° m Z CONSULTING Facsimile (540)662 -5793 FREDERICK CO., VIRGIN � o 0 a ENGINEERS Email office ©painterlewis.com �w 77 /