KENT COUNTY, MARYLAND
PLANNING AND ZONING

The Kent County Planning Commission met in regular session on Thursday, June 2, 2005, at 1:30 PM, in the County Commissioner=s Hearing Room, at 400 High Street, Chestertown, Maryland, with the following members in attendance: Elizabeth H. Morris, Chairman; William Sutton; Patricia Langenfelder; Marcy Brown; Rev. Ruben Freeman; Jay Lancaster; F. Joseph Hickman; Gail Webb Owings, Planning Director; Carla A. Martin, Community Planner; Amy G. Moredock, Environmental Planner; and Elizabeth Carroll, Secretary.

APPLICATIONS FOR REVIEW

#05-55 Kentfield West / Barrett Family Limited Partnership - Major Subdivision - The Barrett Family Limited Partnership requested approval of the final subdivision plat for a 26-lot major subdivision on Coopers Lane and Barrett Farm Road in the Third Election District.  All the proposed lots are in the ACR@ Community Residential District.  The remaining lands are in the ARCD@ Resource Conservation District.

James Barrett was present along with his attorney C. Daniel Saunders and surveyor David Joiner of McCrone, Inc.  All were sworn in with staff by Chairman Morris.

Mrs. Owings read the lengthy staff report noting the history of this property. She addressed relevant issues and applicable law pertaining to this major subdivision.  Staff recommended approval of the final subdivision plan contingent upon:

• Approval of Letters-of-Credit for roads, sediment, stormwater, landscaping and afforestation
• Health Department approval.

Mr. Barrett advised all Letters-of-Credit should arrive before the end of the day.

Chairman Morris asked the status of the Health Department=s approval.  Mrs. Owings replied the deed restrictions have been approved by our attorney, however the Health Department would like to have a limitation on the house size not to exceed 3000 square feet.  The applicant=s attorney is aware of Health Department=s comment and a note will be placed on the plat which should satisfy the Health Department.  Attorney Saunders advised he just received a letter from Ed Birkmire at the Health Department which indicates the deed restrictions do not have to be amended but rather placement of a statement on the plat noting a 3000 sq ft gross house limitation (including porch, deck, garage) for each lot measuring at the perimeter.  Attorney Saunders is waiting for further clarification from the Health Department.  Attorney Saunders asked the Planning Commission to review this subdivision based on zoning regulations and approve the final plat contingent on Health Department approval.  Discussion continued.

Mr. Barrett said he has complied with all county regulations and requested final subdivision approval.

After additional discussion, the majority of the Planning Commission agreed to continue with the review of the  subdivision, but noted the applicant will have to resolve issues with the Health Department.

Steven Barrett, member of the Barrett Family Limited Partnership, and resident of California, Maryland, asked if there is a history of failed septic systems in Kent County that has caused the Health Department=s concerns.  He was told to contact the Health Department with questions regarding septic systems and issues involving the Health Department.  Mr. Barrett questioned the process for approval of the final plat. 

Chairman Morris invited the public to comment.  Wendy Loller, resident of Coopers Lane, asked that a buffer be planted along the property line adjoining her property because of dust and noise.  She also noted she objects to the smaller lots in this phase of the development.  She asked about Lot 28 which appears to be landlocked.  Mrs. Owings advised that lot accesses via the cul-de-sac on Overlook Drive.  Mrs. Loller had other questions regarding the lots and was invited to come forward and review the revised plat.  Discussion continued while reviewing the plat.

Joanna Blackburn, resident of Azalea Court, advised a petition was sent when the Planning Commission reviewed the preliminary plan, expressing opposition to the subdivision because of its density and increased traffic.  Mrs. Blackburn asked the policy for notifying neighbors of a proposal since some neighbors did not receive notice.  Chairman Morris advised notices are sent to adjoining property owners.

James Long, resident of Coopers Lane, he spoke personally to James Barrett, Sr., who told him Lots 21 and 22 would be buffered along with buffering to the woods.  It does not appear to be on the plat now.  Mr. Long said Mr. Barrett has done everything with a lot of thought and he hopes the Barrett Family will continue to do so.

Attorney Saunders requested final plat approval since this is a lawful submittal in compliance with zoning regulations.

The Planning Commission discussed issues mentions.  Following review, Mrs. Langenfelder made a motion to grant final plat approval for the 26 lots in Kentfield West submitted by the Barrett Family Limited Partnership, conditioned upon the following:

• The proposal meets all the requirements of the Land Use Ordinance, however approval is contingent upon meeting the Health Department regulations.
• This subdivision is grandfathered under the regulations of previous subdivision ordinance for the ARR@ Rural Residential District of 1 dwelling unit per acre.
• The Barrett Family should work with the neighbors regarding the buffering of Lots 20, 21, 29 and 30.
• Letters-of-Credit are approved and accepted by the County Commissioners

The motion was seconded.  Chairman Morris called for a vote. The motion carried by a five to one vote.

Right-to-Farm Disclosure Statements - The Planning Commission reviewed and discussed Ms. Martin=s staff memorandum on ARight-to-Farm Notices.  In September 2004, the County Commissioners adopted the new ARight-to-Farm@ law as Chapter 84 of the Code of Public Local Laws of Kent County, Maryland.  The law contains provisions for a Real Estate Disclosure Statement, Plat Disclosure Statement and Right-to-Farm Notice that are to be approved by the Zoning Administrator and by Resolution of the County Commissioners.  The staff report includes proposed versions of each.

After some discussion, Mr. Sutton made a motion to forward a favorable recommendation to the County Commissioners supporting the AReal Estate Transfer Disclosure Statement,@ the ASubdivision Plat Disclosure Statement,@ and the AKent County Right to Farm Notice.@  Ms. Brown seconded the motion, but asked what@near@ is when talking about location of a subdivision.  Ms. Martin said it will be noted in AAZD@ and ARCD@ District and there may be other areas where it would be appropriate.  Discussion continued.  There being no further discussion, Chairman Morris asked for a vote.  The motion carried by a unanimous vote.

STAFF REPORTS

Gail Webb Owings, Planning Director - Mrs. Owings noted the County Commissioners froze the remaining 25 allocations in Worton.  The language is to be revised in the Water and Sewer Plan regarding concept plan review.  Discussion continued.

Ms. Brown asked if the County Commissioners have indicated they will have a joint meeting with the Planning Commission.  Mrs. Owings responded that she has not been so advised by the Commissioners.

Amy G. Moredock, Environmental Director - The Sassafras River Association will have an informational booth at the Upper Strategies Team weigh in for the Department of Natural Resources. The event begins at 8 AM Saturday and is open to the public.

Carla A. Martin, Community Planner - No report.

APPLICATIONS REVIEWED

#05-58 Langenfelder Family Limited Partnership - Special Exception (sow feedlot) - The Langenfelder Family is requesting approval for a special exception to build a 700 sow farrow-to-wean facility on their 491 acres farm located on Still Pond Road in the Second Election District.  The proposed building will be located in the middle of the farm and the surrounding area is characterized by farmland and large lot residential development.  The property is zoned AAZD@ Agricultural Zoning District.

Mrs Patricia Langenfelder excused herself from review and comment on this application and sat in the audience.

Chairman Morris invited the applicants to come forward, provide their name and address and be sworn in.  Those sworn in were Jennifer Debnam, Augustine Herman Highway; Kristen Nickerson, Goose Down Farm Lane; and Bill Langenfelder, Still Pond Road.

Ms. Martin reviewed the lengthy staff report noting the Comprehensive Plan states on Page 19, AFarming, animal husbandry and agribusiness are the primary uses in the Agricultural Zoning District.@ 

Ms. Martin reviewed applicable law found in Article VII, Section 7.25 of the Land Use Ordinance which permits a feedlot or confinement dairy in the AZD provided specific criteria is met.  Article VII, of the Zoning Ordinance sets forth the criteria for granting such an operation.

Staff recommended approval to the Board of Appeals for the farrow-to-wean facility provided all county and state agencies requirements and conditions are met.  The Department of Natural Resources Conservation Service recommends roof guttering with downspouts to underground outlets be included on the building plan.

Ms. Martin read a letter received from Mary Phumphrey, Still Pond Road, who is concerned about a facility being constructed that will have runoff into Morgnec Creek and Urieville Lake.  She mentioned two previous incidents with the Langenfelders that were detrimental to neighboring properties - the shooting of anti-goose cannon all night to keep geese off the farm and the other was disposal of bird carcases on her property.  Mrs. Phumphrey is now worrying about disposal of waste created by the hogs.

Chairman Morris invited the applicants to comment.  Kristen Nickerson said the Langenfelders are swine farmers in the Kennedyville area, and now wish to expand their herd.  They currently have 300 sows and want to expand to 700 with the proposed operation.  It is a common practice to separate a farrowing facility from a finishing facility for disease purposes and they wish to set up their farrow facility on a different farm.  This farm, currently owned by the Langenfelders is a large farm consisting of 491 acres which is more than enough to handle the waste that will be generated from 700 sows.  There is natural screening and the facility will be more than 1000 feet from any property line.  An established grain system is on site.

The applicants total more than 36 years experience on raising swine on their family=s farms.  They are sixth generation farmers.  Mrs. Nickerson explained how the operation will work.

Jennifer Debnam stated their family has always tried to be good stewards of the land.  In 1993 the Langenfelder Family was recognized as the Cooperator of the Year for their soil and water conservation practices.  This farm is in the MALPF Program, preserving the land for agriculture.  It is their intent to farm the land and someday turn it over to their children.  They are in the top 10% of producers of the quality of hogs they market.  They are trained and certified in many programs. 

Bill Langenfelder talked about the nutrient management program for this operation explaining the manure will be spread according to an approval nutrient management plan, injecting it directly into the ground so it will not be on the surface, irrigated or exposed to the air.  The farm will be able to handle the manure generated.  Mr. Langenfelder further explained the nutrient management plan.  Discussion ensued with the Planning Commission.

Chairman Morris invited the audience to comment on the Langenfelder proposal.  Mary Phumphrey asked who received notice of this proposal.  Letters were sent to adjoining property owners.  Mrs. Phumphrey asked the Langenfelders if they spoke to other than adjoining property owners.  The property will be posted and notices sent prior to the Board of Appeals hearing.

Alan Hill, Browntown Road and a neighbor to the Langenfelders, said he was concerned when the Langenfelders moved into the community 17 years ago, but he has no concerns now since they have been an asset to the agricultural community and other organizations in Kent County.  The Langenfelders are fine honest people.  

There being no other public comments, Chairman Morris asked the Board for their additional comments.  After a lengthy discussion and review, Ms. Brown made a motion to forward a favorable recommendation to the Board of Appeals recommending approval of the Langenfelder Family=s application to construct a new 700 sow farrow-to-wean hog facility, contingent upon the Langenfelders obtaining all approvals for the waste management plan, including roof guttering with downspouts to underground outlets on the building.  The motion was seconded.  The Planning Commission=s recommendation is based on the following findings of fact:

• The proposal is consistent with the County=s Comprehensive Plan
• This farm is a district in the Maryland Agricultural Land Preservation Program.
• The proposed building will be more than 1000 feet from all property lines and the surrounding area is characterized by farmland and large residential lots.
• The closest dwelling is the owner=s house and no public buildings are nearby
• No cultural, historical or natural features will be disturbed
• The project is not within the 100-Year Floodplain
• Waste management and nutrient management plans have been prepared
• The facility will be operated in a safe and environmentally sound manner
• No additional screening is necessary
• The waste will be spread with injection equipment approximately twice a year
• There is sufficient cropland to handle all of the waste generated by the operation and waste will not be transferred to other farms.
• There should be no impact on water quality.

Chairman Morris called for a vote on the motion.  The motion carried by a unanimous vote.

#05-49 Carl & Linda Detterline - Variance (side yard setback) - The Detterlines requested a variance to construct a 160 square foot shed 3 feet from the side property line.  The 1.0 acre property is located on Vogeler Drive and Fairlee Creek, in the Sixth Election District.  The zoning of the property is ACAR@ Critical Area Residential.

Carl and Linda Detterline were present and sworn in with staff by Chairman Morris.

Ms. Moredock reviewed the staff report noting the applicants meet the impervious surface requirements for a parcel of its size (6534 sq ft; 3154 sq ft total including existing dwelling and proposed shed.)  The surrounding property is composed of waterfront parcels with a mixture of two and one-story homes and forest area.

Ms. Moredock reviewed applicable law found in Article V, Section 2.5 of the Kent County Land Use Ordinance, and Article IX, Section 2.2 of the Ordinance which establishes criteria for granting of variances by the Board of Appeals.  Ms. Moredock noted the applicants need a side yard setback of 12 feet to construct a shed.  The shed cannot be located in the rear yard as the septic reserve area, drainage pit and well comprise most of the rear yard.  The variance will not cause a substantial detriment to neighboring properties, nor will it change the character of the district.  Denial of the variance may constitute a practical difficulty and may deny the applicants use generally shared by neighboring property owners.

Staff recommends approval contingent upon combing Lots 4 and 5.  Staff also recommended mitigation of 3:1 for disturbance and stormwater runoff from proposed structure should be directed to stable vegetation in the form of rain gardens if feasible.

Correspondence was received from Scott and Jean Linderman questioning the actual height of the structure.  They do not object to an 8 foot high building but they do not want a structure any higher since there home is only 10 feet from the property line in this area. 

Mr. Detterline gave a thorough presentation sharing photos and plot plan with the Planning Commission showing the limited area where a shed can be placed. He requested Nony Howell of the Health Department be present in case there were any questions regarding the septic area and well.  The structure will be 10 by 16 feet with a porch on the front matching the color and finish of their existing home.  The height is 7 feet. There is sufficient screening.

After some review, Ms. Brown made a motion to forward a favorable recommendation to the Board of Zoning Appeals, recommending approval of a side yard variance request by Carl and Linda Detterline, to allow them to construct a 160 square foot shed 3 feet from their side property line.  Mitigation for disturbance at a rate of 3:1, in the form of native plantings is recommended, and that stormwater runoff should be directed to stable vegetation.  This recommendation is based on the following findings of fact:

• The proposed shed will be 7 feet in height and located next to the neighbor=s 8 foot fence, thereby not creating a visual barrier
• Lots 4 and 5 noted on the site plan are combined in the deed
• The proposed shed will not encroach in to the 100 foot Critical Area Buffer
• The Critical Area Buffer comprises the front yard of the waterfront lot
• The well and large mature trees are located within the east side yard
• The septic reserve area and a portion of the drainage area are located within the west side yard
• The drainage area is located within the rear yard
• The locations of the well and septic areas create a practical difficulty
• The variance will not cause a substantial detriment to neighboring properties
• The variance will not change the character of the neighborhood. 

Mrs. Langenfelder seconded the motion.  The vote was unanimous.

#05-52 James J. Gorman - Variance (pier length) - Mr. Gorman is requesting a variance of 125 feet for a pier and six mooring pilings with an overall lengthy of 275 feet.  The property is located at Swan Haven Lane in the Fifth Election District.  The 12 acre parcel is a peninsula surrounded by Swan Creek and the Haven.  The width of the waterway is approximately 1500 feet and the proposed pier comprises 18% of the waterway.  The property is zoned ARCD@ Resource Conservation District and is located in four-lot subdivision, Waterview Estates, in the Fifth Election District.

Surveyor Michael A. Scott was present on behalf of his client and was sworn in with staff.  Attorney Dan Saunders was also present representing his client James Gorman.

Ms. Moredock reviewed the staff report noting applicable law Article V, Section 5.5 of the Land Use Ordinance.  Staff noted the extended property lines must be established to determine whether the pier meets the side yard setback requirement as it extends over water.  Article V, Section 5.4.8 permits APrivate piers, community piers, and private shared pies, not to exceed 25% o the width of the waterway, the edge of the channel, or 150 feet in length, whichever is less and subject to the stipulations of Article VI, Section 3.7. of the Ordinance.  Article IX, Section 2 of the Ordinance sets forth criteria for the granting of variances by the Board of Appeals.

Ms. Moredock noted the extended property lines must be established to determine if the pier meets setback requirements.  The proposal does not appear to change the character of the neighborhood nor cause a substantial detriment.  It does appear that disturbance to the existing subaquatic vegetation bed could be minimized and the pier could be shortened if the pier was relocated southward on the property.  In relocating the proposed pier, the applicant may comply with the spirit, intent and purpose of the Ordinance.  The existing proposal does not minimize the applicant=s need for a variance nor does it minimize impact on the existing SAV bed.  The Comprehensive Plan specifies that activities such as pier construction be limited an those permitted minimize impact on these resources.  Ms. Moredock recommended denial of the variance request as proposed.

Correspondence was received from the Chesapeake Bay Critical Areas Commission is not opposed to the variance provided the county is satisfied that the applicant can demonstrate minimization, and mitigation of SAV=s.

Attorney Saunders said he spoke with Dick Luttrell who prepared the plan and advised it does meet the extended property setback.  Mr. Saunders reviewed the site plan with the Planning Commission.  Discussion ensued regarding the location of the pier from the property.  Mr. Scott remeasured the pier showing a measurement of 180 feet. 

APoint of order, if you will@, Craig O=Donnell asked if there is a document that actually shows what is being proposed?  It was noted the drawing does show the location of the proposed new dwelling.  Discussion continued.

Attorney Saunders advised Mike Scott=s crew did soundings of depth to a bench mark for accurate depth soundings and physically located the SAV=s last Fall.  It was determined to build the pier where originally proposed was in the middle of the SAV bed.  The pier was moved 100 feet to the south to keep the slips outside the SAV bed with 3 2 feet of water at the end of the pier.

Craig O=Donnell, Still Pond resident, said he is trying to understand all the drawings. It appears no one is actually sure of anything.  He suggested moving the pier where it will affect less vegetation and be in equally deep water.   He also questioned the mooring pilings.  The documentation is not clear.

Attorney Saunders feels he has established a practical difficulty because of the existence of the SAV=s at 150 feet and the inability to get to navigable depth at 150 feet.  There may be visibility issues if moved to the south.  He feels slips need to be in clear water.

After additional discussion, Ms. Brown made a motion to recommend the Board of Appeals deny Mr. Gorman=s variance request for a 275 foot pier on property located on Swan Haven, finding that:

• There is no practical difficulty
• There is not an unusual size or shape of the property
• There are no extraordinary topographical or other condition of the property
• The use or development of the property immediately adjacent to the property does not apply since this criteria does not apply in the Critical Area
• There is subaquatic vegetation at this site.
• There are other sites where the pier could be placed where it would not have to be as long
• There is a large SAV bed.  There is no way to assure that smaller boats will not be going in and out of the SAV bed if there is a pier at the proposed location.
• The parcel is located within the sensitive species locations, historic waterfowl staging area, anadromous fish spawning habitat, and forest interior dwelling bird habitat.

The motion was seconded and the vote unanimous.      

GENERAL DISCUSSION   

Town of Betterton 2005 Comprehensive Plan - Mrs. Owings informed the Planning Commission the procedure for reviewing other comprehensive plans.  She asked the Planning Commission for their general comments.

Craig O=Donnell asked to speak as a resident of Still Pond.  He noted the people of Still Pond would like to see the County cooperate with Betterton on this issue.  There is no village master plan and is concerned about Betterton=s greater ambitions.  It is critical that Betterton, Still Pond and the County talk about issues affecting the outlying areas of Betterton.

The Planning Commission reviewed and discussed the draft plan, and requested staff forward their comments to the town.  Their comments included the following:

• The history at the beginning of the plan is informative and provides a strong background for the goals identified in the plan.
• The Commission supports the town=s goal to provide a variety of housing types in a setting that reflects the character of the town.
• Betterton has been recognized as a National Register Historic District and is included in the Stories of the Chesapeake Heritage Area and as a sidetrack to the Chesapeake Country National Scenic Byway.  The Plan should acknowledge these designations and include language concerning the implementation of goals associated with these programs.
• The Commission appreciates Betterton=s willingness to work with the County to coordinate planning growth, and future development.
• While the Commission respects and acknowledges the town=s sphere of influence, the Commission believes a sphere of influence consistent with the suggested greenbelt one mile from the town=s boundary is appropriate.
• The plan seems to conflict in its discussions concerning the future town boundary. In one location the plan states the current boundary will serve as the 20-year growth boundary.  The plan then discusses proposed annexations and creates annexation policies.
• The annexation policy includes a statement that the Land Use Plan Map shall guide the timing, location, and general land uses for annexed property. This map was not included in the copy of the plan sent to the Planning Commission.
• When considering development or annexation agreements, consider the impact on community facilities provided by the county and the impact on the surrounding villages of Still Pond and Lynch.

The Planning Commission adjourned the regular monthly meeting at 5:30 PM, and then held a work session on sections of the Comprehensive Plan.

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Elizabeth H. Morris, Chairman

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Elizabeth E. Carroll, Secretary