KENT COUNTY, MARYLAND
PLANNING AND ZONING

The Kent County Planning Commission met in regular session on Thursday, September 7, 2006, in the County Commissioners’ Hearing Room at 400 High Street, Chestertown, Maryland, with the following members in attendance: Elizabeth H. Morris, Chairman; William S. Sutton; Marcy Brown; Rev. Ruben Freeman; Jay Lancaster; G. Mitchell Mowell, Attorney; Gail W. Owings, Planning Director; Amy G. Moredock, Environmental Planner; and Elizabeth Carroll, Secretary.

MINUTES  -  The Minutes of the July 6, 2006 meeting were approved as written.  The Minutes of the August 3, 2006 meeting were approved as written.

APPLICATIONS FOR REVIEW

#05-26 John Stoltzfus – Site Plan Review (Commercial Retail Center) – Mr. Stoltzfus is requesting concept plan approval for approximately 23,000 sq ft of commercial and retail space on his 7 acre parcel located on Routes 291 & 301, in the First Election District.  The property is zoned “CCA” Commercial Critical Area.

            Kevin Shearon of DMS Associates; Joanne Baker, Torchio Architects; and Deborah Orr from John Stoltzfus’ office were present and sworn in with staff by Chairman Morris. Also present was Cindy McCann of Stevens and Associates, attorney representing the applicant.

            Ms. Moredock noted the history of this property and that previously a restaurant and gas station were on the site.  In 2004, the Board of Appeals approved an impervious surface variance on the subdivision of the Stoltzfus lot and the Kostick lot limiting impervious surface on the Kostick lot to 15% and limiting impervious surface on the Stoltzfus lot to 45% which is the number set by existing impervious surface on the lot in 1984.

            In 1994, Mr. Stoltzfus submitted his first concept plan for a hotel, restaurant and convenience store. Since that time he has submitted several revised concept plans which have been reviewed by the Technical Advisory Committee.

            Ms. Moredock reviewed the lengthy staff report noting relevant issues and applicable law found in Article V, Section 12 of the Land Use Ordinance which addresses requirements for the CCA Zoning District. Article V, Section 12 notes the general design, specific design standards, and environmental standards.  Site plan requirements are found in Article VI, Section 5 of the Ordinance.

            Ms. Moredock summarized correspondence received from the Town of Millington in which they state that such a proposal must be consistent with the Land Use Ordinance and Comprehensive Plan. Any development of this site will have an impact on the current plans and future development within the town limits of Millington.

            Ms. Brown pointed out that at the August Planning Commission meeting, the Board agreed not to hear any proposal until a citizen’s participation plan is completed by the developer.  Staff noted that decision was for subdivision review only.

            Mr. Shearon informed the Board that a letter was sent to adjoining property owners with a copy faxed to the planning office today.  The developer has had no response to that letter.

            Mr. Shearon reviewed the site plan with the Planning Commission showing a tree-line drive using the existing entrance to the retail center.  Four separate buildings are proposed in a courtyard.  He expanded on the plan.  They are requesting no waivers for landscaping and all afforestation will be on-site.  Lighting will be dark-sky compatible.  They are currently working with Soil Conservation on stormwater management.

            Joanne Baker from Torchio Architects, reviewed the architectural renderings and design of the buildings.  Heights vary and follow some design of buildings in town of Millington. Landscaping will be substantial to provide screening.

            Mr. Shearon advised Attorney Cindy McCann of Stevens and Associates was present representing Mr. Stoltzfus with regards to the impervious surface requirements. They believe if a use ceases for greater than a year, then you loose that grandfathering.  They acknowledge the use is no longer there, but feel the regulation does not speak to the impervious area.  The impervious surface did not cease to exist, and therefore they should be able to utilize the excess of 15%.  In 1984 impervious area was about 32% and will not exceed what existed in 1988. Attorney Mowell replied that the impervious surface is part of the use of the property. There has not been any use for years. He does not feel it is grandfathered and Mr. Stoltzfus must comply with today’s ordinance. Non-conforming uses will ultimately be abated and the property will come into conformance. Attorney McCann responded that there needs to be a resolution on how this will be interpreted. If it is part of the use, then the applicant will comply with that, however she questioned how that will be determined.  Attorney McCann argued her point.  Attorney Mowell suggested contacting the Attorney General at the Critical Areas Commission to provide us with an opinion.  Discussion continued.

            Mr. Shearon stated that looking at county zoning outside the corporate limits of Millington, there is a substantial amount of area on the west and north side zoned Critical Area Commercial, Village, Employment Center and Commercial. How can the town say “you can’t do that” to this project, when the land is already zoned for commercial use? Attorney McCann referred to the Comprehensive Plan which encourages commercial development.

            Chairman Morris noted the applicants have presented their concept plan but before the Planning Commission can move forward on the proposal the issue of impervious surface must be resolved.  After some discussion, Kevin Shearon withdrew the John Stoltzfus concept plan until the impervious surface question is resolved. 

            The audience was given an opportunity to speak on this project. After being sworn in, Bronwyn Shanahan, West Edge Road, inquired about stormwater management plans. Mr. Shearon pointed out the location and noted topography has limited area for stormwater. She noted it appears to be too close to houses. She also noted that several of the residential properties have requested variances which have been denied; why should Mr. Stoltzfus be granted a variance?

            Craig O’Donnell asked if the architect has considered the overpass and the view of the top and back of buildings.  Ms. Baker said the architects will address that issue.

#06-109  Wm David Leager – Zoning Text Amendment  - Mr. Leager has submitted an application to amend Article V, Section 15.2.1 of the Kent County Land Use Ordinance by adding “grain processing, distilling and biofuel production. This would be in the Industrial and Employment Zoning Districts.

            Present and sworn in by Chairman Morris were: William David Leager and Wayne Bellemy.

            Mrs. Owings reviewed the staff report noting relevant issues and applicable law. She noted the Comprehensive Plan encourages the development of business and industries which compliment the character of the county and use renewable or agricultural products. The distilling of biofuels can, but does not always use agricultural products that are currently grown in Kent County. However, staff believes the amendment should note that this is not intended for blending of gasohol or biodeisel.  Mrs. Owings noted the ideas put forth are appropriate and consistent with the Comprehensive Plan, but any proposed facility must meet the existing performance and environmental standards.  Mrs. Owings suggested changing the amendment to read: “grain processing and distilling for biofuel production” which would eliminate the possibility of anyone thinking this would include the making of E85 as in a refinery.

Included in the staff report was a copy of a memorandum prepared by Jack Steinmetz, Director of the Kent County Economic Development Office.  No other correspondence has been received.

Mr. Leager advised that he, some local farmers and investors have investigated the possibility of an ethanol plant for Kent County. They have visited several sites in the Midwest. A contractor in Virginia could build the facility. An industrial site near Massey appears to be the best location and he reviewed the map with the Planning Commission.  Mrs. Owings pointed out that the amendment as proposed does not limit an ethanol plant to just one site.

Mr. Leager advised his group has met with the Maryland Department of Business and Economic Development who were supportive of the proposal.  Mr. Leager reviewed the process for making ethanol and shared plans.  A feasibility study will be prepared if the amendment is approved.

Mr. Leager noted where plants are located, the price of corn increased 5 to 10 cents a bushel. Mr. Sutton pointed out that the current corn crops go to the chicken industry; is there enough for both industries?  Mr. Bellemy said they could ship corn into the county if necessary. Discussion ensued. 

Mr. Bellemy advised the enthanol plant they are considering is the most efficient using waste water. He explained the design of the facility. The plant will use approximately 200 gallons a minute.  Board members questioned the use of so much water and its affect on our aquifer. Mr. Lancaster commented on an article he recently read on ethanol plants. Mr. Bellemy said he could share several articles that support ethanol.  Rev. Freeman noted there is an enthanol plant in Delaware City that has never been in production. Discussion continued.

The applicants showed a video “What is Ethanol and What is the procedure for making Ethanol?”  Mr. Leager noted the plant his group proposes is designed for corn only.  Mr. Bellemy said DuPont is also working with a seed company for corn to produce ethanol so it will provide a higher yield. It is estimated a facility of the size discussed, could cost $60 to $80 million.

After further discussion, Chairman Morris asked for comments from the audience.  Jack Steinmetz, Director of Kent County Economic Development, advised the KCEDB met last night and heard the same presentation. KCEDB has done some investigation prior to their meeting.  Water was a concern and they have been informed by Wayne Morris, Department of Water and Waste Water, and Mark Williams, President of First Data, that we draw on three aquifers and there is plenty of water to meet the demand.  

Jerry Smith, Worton, was sworn in by Chairman Morris.  Mr. Smith feels it is premature to put in a text amendment until a compatibility study and a sustainability study or feasibility study is completed.  He feels it is important to have a hydrology study of Kent County before making decisions on projects. Other questions raised by Mr. Smith included: what affect would this operation have on the Millington Wildlife area; need to address truck traffic; and how much propane will be required for this operation and how will propane be stored? These issues should be addressed before approving an ethanol text amendment.

In response to questions by the Planning Commission, Mr. Needham advised his business operates 24-hours a day.  There are at least 30 to 40 employees working on the premise. Corn will be housed in structures on-site as well getting corn from farmers when needed. 

            Rev. Freeman asked about emergency services and if the Millington or Galena Fire Companies would have sufficient equipment to provide service.  This is an issue to address.

            Mrs. Owings pointed out that if the ethanol plant amendment is approved, the applicants will be required to meet all the performance standards, environmental standards, and design standards with very specific review of a site.  The amendment does not automatically grant an ethanol plant approval.

            Mr. Lancaster asked at what point does the county have the ability to say a project is no longer tenable because water demands are not sustainable?  State agencies must approve a project before the county can grant any approvals.  Discussion followed.

After a lengthy discussion, Ms. Brown made a motion to submit an amendment to the Kent County Land Use Ordinance to add grain processing, distilling and biofuel production to the list of permitted manufacturing, fabrication, and assembly of products in the Industrial District, specifically:

ADD    Article V, Section 15.2.

18.  The processing and distilling of grains for the production of biofuels but not the refining of        petroleum distillates provided the property is located in the Maryland Route 301 corridor.

            The Planning Commission found the proposed amendment to be consistent with the Comprehensive Plan.  The Plan calls for the recruitment of environmentally sound, well paying sustainable industries.  The Board also found this proposal meets a public need to develop initiatives and programs that maintain the economic vitality of the agricultural industry in Kent County.  The motion was seconded and the vote unanimous.

ZONING TEXT AMENDMENTS

Road Capacity - At the August 3, 2006 meeting, the Planning Commission discussed with staff a possible text amendment to the Land Use Ordinance that would allow the Planning Commission to consider the impact of a project to existing roads and require an applicant to provide surety that the roads in that particular area are capable of handling the traffic generated by that development.  Staff agreed to prepare an amendment for consideration at the September 7 meeting.  Having done so, staff presented the following to the Planning Commission to clarify procedures and existing language in the Kent County Land Use Ordinance. The purpose is to ensure consistency with the Comprehensive Plan.

AMEND:   Article V, Sections 3.8B1e, 4.8B1e, 5.8Ble, 6.8B1e, 7.8C11, 8.8C11, 9.8C11, 13.7B1i, 14.9B1g,15.9B1i, 16.8B1i, 17.8B1i, Site Access by replacing the existing language with the following:

“The applicant shall demonstrate that access to the project is adequate and the roads which will be impacted have the capacity to handle the traffic generated by the proposed project and will not endanger the safety of the general public.”

AMEND:  Article V, Sections 10.8B1, 11.8B1, and 12.8B1, adding:

“j. The applicant shall demonstrate that access to the project is adequate and the roads which will be impacted have the capacity to handle the traffic generated by the proposed project and will not endanger the safety of the general public.”

After review and discussion, Ms. Brown made a motion to forward a favorable recommendation to the County Commissioners recommending approval of the text amendments as presented, finding these amendments are consistent with the County’s Comprehensive Plan and the Chesapeake Bay Critical Area Law.  The amendments direct the county to analyze traffic impact of any proposed development.  Proper traffic analysis addresses a public need to assure infrastructure is adequate to handle the traffic generated by new development.  The motion was seconded. The vote was unanimous.

Major Subdivision Review Process - Citizen Participation Plan – At the August 3, 2006 Planning Commission meeting, the Board agreed they would like to have the “Citizens Participation Plan” as a requirement of all developers.  Staff was asked to prepare text to be placed in the Land Use Ordinance.

AMEND:  Article VI, Section 5.4B and 6.4A, adding the following:

            “Citizen Participation Plan” is listed as a requirement in the Narrative.

            After a few brief comments, Ms. Brown made a motion to forward a favorable recommendation to the County Commissioners recommending this text be added to the Land Use Ordinance.  The Planning Commission finds this proposed amendment is consistent with the Comprehensive Plan and the Chesapeake Bay Critical Area laws.  The Plan directs the county to require developers to work with a citizens’ participation plan.  This proposal meets a public need to promote early effective public participation in the review of subdivisions and site plans.  The motion was seconded and the vote unanimous.

ANNUAL REPORT – The Planning Commission reviewed the 2005 Annual Report prepared by staff.  After some discussion, Mr. Sutton made a motion to accept and adopt the report as written.  The motion was seconded and the vote unanimous.  The Board complimented staff on a job well done.

AMENDMENT TO THE KENT COUNTY WATER & SEWER PLAN – The Planning Commission reviewed the proposed amendments to the 2005 County Water and Sewer Plan to extend the existing force main located at the intersection of Maryland Route 445 and Green Lane down to Allen’s Lane.

After some discussion Ms. Brown made a motion to forward a favorable recommendation to the County Commissioners based on the following findings:

• This project as proposed would extend the existing force main, located at the intersection of MD Route 445 and Green Lane to Allen’s Lane area solely to serve failing septic systems as identified and documented by the Kent County Environmental Health Department.
• The Kent County Comprehensive Plan establishes that public water and or sewer systems will not be extended into the countryside except to correct public health emergencies; further, the extension of services shall not be interpreted as allowing additional development and allocations will not be granted to parcels between developed areas and treatment facilities.

The motion was seconded and the vote unanimous.

STAFF REPORTS

Gail Webb Owings, Planning Director – Mrs. Owing reported a housing planner will be on board by October 1.  The housing planner will be involved in grant writing, address housing issues and a housing summit. He has considerable experience in his field. The Housing Department and Planning and Zoning have merged.

            County Commissioner Alex Rasin is interested in making tax credits available for property owners restoring their homes.  He would like to see the creation of a voluntary historic preservation commission.  Cecil County and Talbot County have voluntary provisions.  Mr. Rasin would like this program approved before he leaves office. Mrs. Owings noted the County Commissioners will be meeting with representatives from Talbot and Cecil County at 9 am on September 19.  After some discussion, the Planning Commission agreed to meet on Tuesday, September 19, following the meeting with the County Commissioners.  The meeting will be advertised in accordance with the Open Meetings Law.

GENERAL DISCUSSION

Impervious Surface – Attorney Mowell noted, for procedural purposes, the Zoning Administrator should make a decision, which can be appealed. If a decision is made by the Planning Commission, there may not be an avenue to appeal.  To simplify, Mr. Mowell stated, if there was a house on a slab and it burned and sat idle for two years, the slab could not be left there and new construction would have to be incompliance with current regulations. Attorney Mowell further noted that when Mr. Stoltzfus lost the nonconforming use status the year after their last use, technically at that time he should have been required to remove everything and comply with impervious surface regulations.  There was and is a violation of the Critical Area Impervious Surface regulations on the Stoltzfus property and must be corrected by removing the concrete surface. Applying for a variance is an option, but if denied the concrete would have to be removed.  Discussion followed.

There being no further business the meeting adjourned at 5:20 p.m.

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Elizabeth H. Morris, Chairman

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Elizabeth Carroll, Secretary