KENT COUNTY, MARYLAND
PLANNING AND ZONING

MINUTES – The minutes of the December 7, 2006 meeting were approved as written.

KENNEDYVILLE VILLAGE MASTER PLAN

It was suggested that a separate meeting be held to discuss the Kennedyville Village Master Plan since there will be more plans of this nature in the future.  It was further suggested that a checklist be made so that each plan can be reviewed for the same consistency.  Mrs. Owings noted each village will need to be reviewed on an individual basis.

Mrs. Owings said the Commissioners have formed a Village Advisory Committee however, board members have not been been appointed to date.  It was asked if the County rules are different than the Master Plan; which rules  apply?  Mrs. Owings replied there will be a zoning change to accommodate the Master Plans for each area.

After some discussion it was decided to schedule public meeting as follows:

Kennedville Village Master Plan - Thursday, January 25, 2007,  7:00 p.m.  County  Commissioners’ Hearing Room. 

Worton Village Master Plan - Monday, February 5 or Tuesday, February 6, 2007 at the Mt. Olive Church.

Fairlee Village Master Plan - Tuesday, January 16, 2007 from 2:00 p.m. until 7:00 p.m.  at the Potter’s House.

Board members will be notified when dates are confirmed.  Ms. Owings noted the Worton plan will be mailed to committee members on January 5, 2007. 

STAFF REPORTS

Amy Moredock – Environmental Planner – Ms. Moredock advised Kent County has been awarded a grant in cooperation with Coastal Zone Management for a shoreline restoration project at Turners Creek. Work is expected to begin in the spring.  Kent County and Queen Anne’s County have met the eight hour ozone designation and have been taken off the non-retainer list. 

Gail Webb Wings, Planning Director – Mrs. Owings informed the board that the Office of Planning , Housing and Zoning has hired two new women, Kim Dixon, Administrative Secretary and Carolyn Brinkley, Office Manager.

APPLICATIONS FOR REVIEW

#06-89 William S. Sutton – Special Exception (Cell Tower); #06-90 Site Plan Review - Mr. Sutton excused himself from review of this application and left the room. Nextel Communications is requesting a special exception and site plan approval to construct a 150 ft monopole with a 4 ft lightning rod, one 12 ft by 20 ft modular equipment shelter and 6 ft by10 ft concrete generator pad, on the 126-acre farm owned by William S. Sutton on Augustine Herman Highway, in the Second Election District.  The property is zoned “AZD”.

Present and sworn in by Chairman Morris were: James R. Michal, of the law firm of Jackson and Campbell, P.C., representing Nextel Corporation, 1120 Twentieth Street, N.W. South Tower, Washington, DC; Tom Dublin, 101 Hamblin Drive, Fredericksburg, KY, and staff.

Ms. Martin reviewed the staff report noting applicable law found in Article VII, Section 2 of the Land Use Ordinance and addressing environmental standards and design standards.  Ms. Martin recommended denial because the tower is within three miles of another tower in Chestertown. There is a significant amount of overlap in coverage as shown on the propagation maps. The tower may be seen from Route 213 which is part of the Chesapeake Country National Scenic Byway. 

            No correspondence has been received on this proposal. 

            Chairman Morris invited Mr. Michal to present his case.  Mr. Michal informed the Board that Nextel

has decided to request a 130 ft pole with a 4 foot lightning pole.  This is a decrease of 20 ft.  Mr. Michal feels the proposed tower would enhance coverage to the northeast area of Kent County.  He submitted an email from the Technology Director of the Maryland State Police stating this tower would assist them thereby improving public safety.  Mr. Michal said Nextel is willing to make the monopole any color that the board would prefer.

            Mr. Michal referred to a letter he received from State Highway Administration offering some comments for the purpose of reducing potential adverse effects to the visual quality surrounding the byway. Mr. Michal said Nextel is complying with that request by placing the tower near existing farm structures and trees which will help minimize the view of the tower.

            The placement of the tower in this area will improve coverage in vehicles as well as in homes.  A tower is also proposed on the Angelica Nurseries property which will increase cell phone coverage.  These towers will also provide needed coverage for public and emergency services. 

            Tom Dubin reviewed several photos and maps indicating present wireless coverage. Discussion continued.

            Chairman Morris asked for comments from the audience.  Cynthia Saunders, 102 North Queen Street, Chestertown, was sworn in by Chairman Morris, and reported she was speaking on behalf of the Historic Heritage Committee.  They are most concerned that the proper procedures are followed.  The Heritage Committee is not interested in hindering public service or communications, however Queen Anne’s County granted Nextel permission to construct a tower right on the highway and they are against that happening here.  Ms. Saunders was advised that she should plan to attend the Board of Appeals hearing. 

            James Douglas, 2856 Cove Point Road, Kennedyville, was present and sworn by Chairman Morris, an owner/operator of a public use airport in the northeast part of the County.  Mr. Douglas said his main concern is flight safety.  He suggested checking other antenna sites, possibly the water tank in Kennedyville. He noted Wayne Wright provides a valuable service to the farmers in this area and this airstrip should be protected.

            Wayne Wright, 10314 Augustine Herman Highway, was sworn in by Chairman Morris.  Mr. Wright expressed his opposition to the proposed tower for safety purposes. A morning flight when the sun is coming up may make it impossible to see the tower.  He also noted that several of his family are pilots and he is concerned about their safety as well. 

            Craig O’Donnell, Kent County News and resident of Still Pond, asked several questions of the applicant regarding notification procedures.  Mr. O’Donnell asked for a copy of the State Highway letter.

            Chairman Morris asked the Board for their comments and after further discussion, Ms. Brown made a motion to forward an unfavorable recommendation to the Board of Appeals recommending denial of Nextel’s application to place a 130 ft tower with a 4 ft lighting rod on the lands of William Sutton, based on the following:

• The proposed tower is within 5 miles of an existing tower. Nextel is already located on the closest tower and is trying to expand coverage, but it appears the proposed tower could be moved a half mile to three-quarters of a mile, and still be effective.
• The proposed tower could inhibit Wayne Wright and his crop dusting business which is critical to the County’s agricultural industry.
• The applicant did not present sufficient information that all possibilities for co-locating on existing structures had been exhausted, specifically the Kennedyville water tower and the grain dryers in Lynch.
• At this time no other carriers have inquired about co-locating on the proposed tower.
• The proposed tower is within the viewshed of the Chesapeake Country National Scenic Byway; and if it can be located outside the viewshed, than it should be.

The motion was seconded.  Chairman Morris called for a vote. The motion carried by a unanimous vote to recommend denial of the special exception.     

#06-143 John Stoltzfus – Variance (Impervious Surface) - Mr. Stoltzfus is requesting an impervious surface variance to construct over 2 acres of impervious surfaces (including a 23,000 square ft of commercial and retail space) on his 7-acre parcel located on River Road (Route 291) and Route 301, in the First Election District.  The parcel is a part of a two-lot subdivision on a 7.55 acre parcel which was approved in 2004.  The property is zoned “CCA” Commercial Critical Area.  The Dutch Deli restaurant and gas station formerly onsite were demolished in the spring 2005.

            Present on behalf of  John Stoltzfus and duly sworn in by Chairman Morris were: Deborah Orr, 14091 Gregg Neck Road Galena; David Stoltzfus, 29150 Wicks Landing Road; Cynthia McCann, Stevens and Associates LLC, 141 West Water Street Centreville, Maryland; and  Kevin Shearon, DMS and Associates, of Centreville.

            Ms. Moredock advised the overall parcel contains existing impervious surfaces onsite totaling 143,752 sq ft (44%.) Lot 1 (Stoltzfus lot) contains 141,352 sq ft of impervious area (46% of lot and 44% of entire parcel.) Lot 2 (Kostick lot) contains 2,400 sq ft (1% of lot and less than 1% of entire parcel.) The total of the impervious surfaces over the entire subdivision may not exceed 15%.  The total impervious area on Lot 1 may not exceed 15%.

            John Stoltzfus proposes to reduce impervious surface on his lot to 2.236 acres, while the Kostick lot remains at .0555 acres of impervious surfaces resulting in a proposed impervious surface area of 2.29 acres/30%. The resulting impervious areas on the applicant’s lot total 97,400 sq ft (32% of Lot 1.)

            Ms. Moredock noted the extensive history of this property, after which she reviewed relevant issues and applicable law.  Article V, Section 12.7.B.8.a of the Land Use Ordinance which requires: “Man caused impervious surfaces on parcels greater than 36,301 sq ft shall be limited to 15% of the property.” Article V, Section 12.7.B.8.e of the Land Use Ordinance: “Man caused impervious surfaces shall not exceed 25% of an individual lot of one acre or less which is a part of a subdivision approved after December 1, 1985.  However, the total of the impervious surfaces over the entire subdivision may not exceed 15%.”Article IX, Section 2.2 of the Land Use Ordinance authorizes the Board of Appeals “to grant variances of 15% slope, impervious surface, or buffer requirements in the Critical Area for reasons of demonstrable and exception unwarranted hardship as distinguished from variations sought for convenience, profit or caprice.”

            Ms Moredock recommended denial of the variance request. The nonconforming status of the site has lapsed and the applicant must conform to the impervious surface limit set forth by the Land Use Ordinance.  However, if the Board is inclined to approve the application, the approval should be contingent on the following:

• No trees should be removed to accommodate a building and an afforestation plan should be required consisting of a mix of native trees and shrubs;
• Stormwater runoff from proposed structures should be directed to stable vegetation;
• Ten percent water quality improvements should be required to offset additional impervious surface.

She further noted that a favorable recommendation does not confer upon the applicant, site plan approval. The applicant must submit a separate site plan for proposed development.

            Ms. Moredock read the December 11 letter from the Critical Areas Commission which states, “… Commission staff does not believe that a new use for the site can be developed without first addressing the non compliance of the property that has continued for a period of years. It is our opinion that the site should be restored to fit the appropriate mapped use with the appropriate restrictions on the property as outlined in the Kent County Ordinance and Critical Area Law. The applicant has requested the Kent County Board of Appeals to provide for relief related to the 15% limit by increasing the approved impervious surface of the site to approximately 32%. Critical Area staff opposes this request.”

            Chairman Morris invited the applicants to speak.  Attorney McCann stated John Stoltzfus is requesting a variance of impervious surface less than what is already there. She is also appealing the decision of the Zoning Administrator. Ms. McCann submitted Exhibit #1, Article VII, Nonconforming Uses and “grandfathering” regulations. She feels this property is grandfathered in under the critical area plan.  Ms. McCann was informed that the Planning Commission will not consider this portion of Mr. Stoltzfus’ application, since Appealing a decision of the Zoning Administrator is forward directly to the Board of Appeals without review by the Planning Commission.

            Mr. Shearon reviewed the proposed concept plan for the lands of John Stoltzfus and noting there is currently 3.25 acres of impervious surface on this 7-acre parcel, which is above the 15% impervious surface limitation. The proposed new development will decrease the existing impervious surface by 12% by creating more pervious surface in lawn.

            Exhibit #2, Chesapeake Bay Critical Area Environmental Assessment Property, prepared by Environmental Regulations Consultants, Inc., was entered into the record. Mr. Shearon commented on this submittal.

            Attorney McCann submitted Exhibit #3, Zoning Maps 5 and 31, pointing out the subject property and other properties with “CCA” Commercial Critical Area.  Ms McCann questioned how Peoples Bank received an impervious surface variance for their property on Route 291, and submitted Exhibit #4, a copy of Appeal No. 97-55, Peoples Bank/Kent County approved by the Board of Appeals in 1997, with a recommendation by the Planning Commission to grant that request.

            Ms. McCann argued her case reviewing the variance regulations and noting the impervious surface has not change, and she feels Mr. Stoltzfus has a strong case for “unwarranted hardship”.  Ms. McCann further noted this proposal is consistent with the County’s Comprehensive Plan which encourages new and existing businesses.

            In summarizing, Attorney McCann again emphasized the granting of this impervious surface variance would be in keeping with the county’s regulations; the footprint would be less; and it is a reasonable request for this commercial property.  Through their presentation she feels they have demonstrated an “unwarranted hardship” and an impervious surface variance should be granted.

Mr. Craig O’Donnell, Kent County News and resident of Still Pond, asked several questions of the applicant regarding notification procedures.  He asked for a copy of the State Highway letter.

            After a lengthy review and discussion, Ms. Brown made a motion to forward an unfavorable recommendation to the Board of Appeals, recommending denial of John Stoltzfus’ request for an impervious surface variance to construct over 2 acres of impervious surface (including 23,000 sq ft of commercial and retail space) on his 7 acre parcel located on River Road (Route 291) and Route 301.  The Board made the following findings:

• There may be a substantial detriment to neighboring properties, and there may be a change to the character of the neighborhood.
• Approval of the proposal may confer special privileges upon the applicant.
• A literal interpretation of the ordinance will not deny the applicant of rights commonly enjoyed by other properties in similar areas.
• The size and shape of the property allows for reasonable use as this parcel is 7 acres and allows over an acre of impervious surface onsite.
• There are no unusual topographical conditions onsite.
• The applicant has demonstrated no unwarranted hardship.
• A practical difficulty could have been caused by the applicants own actions by discontinuing use onsite.
• The variance is not consistent with the Comprehensive Plan and intent of the Ordinance. The Comprehensive Plan does promote businesses; however these businesses are to be encouraged to be in the towns – this proposal is not.
• The need for a variance was not caused by the applicant’s own action, but by the current noncompliance with the ordinance.
• Approval of this project could adversely affect water quality.

Ms. Brown continued with the motion noting that should the Board of Appeals be so inclined to grant approval of the buffer variance, that approval should be contingent upon the following:

• No trees should be removed to accommodate a building and an afforestation plan should be required consisting of a mix of native trees and shrubs.
• Stormwater runoff from proposed structures should be directed to stable vegetation.
• Ten percent water quality improvements should be required to offset additional impervious surface.
• Favorable recommendation does not confer upon the applicant site plan approval. The applicant must submit a separate site plan for proposed development.

The motion was seconded and the vote unanimous.

#06-152 William Tubman – Special Exception (Shed & Carport in front yard) & Variance (front yard setback) -  Mr. Tubman requests two front yard variances for a 420 sq ft carport 8 ft from Point Lane, and to construct a 38 sq ft shed 25 ft from Point Lane.  The carport has been constructed onsite.  This lot is a through lot and has two front yards.  As a result, the applicant is also request two special exceptions to place both the existing carport and the proposed shed within the front yard setback.  The .376 acre parcel is located on the corner of Point Lane and Bayview Drive in Tolchester Estates, Sixth Election District, and is zoned “CAR”.

            Dr. William Tubman was present and sworn by Chairman Morris.

            Ms Mordock noted this property has been subject to five previous front yard setback variance requests.  Ms. Moredock reviewed each past application.

Ms. Moredock reviewed the staff report noting applicable law found in Article V, Section 2.5 of the Kent County Land Use Ordinance which lists the minimum yard requirements: Front 50 ft; side 15 ft; and rear 30 ft.  Article VI, Section 3.4.2 of the Ordinance outlines through lot requirements, and Article XI, Section 2. 357-360 defines yards.  Article VII, Section 2, authorizes the board to make specific findings when making a decision.

            Staff recommended denial of the 40 ft setback variance from Point Lane to bring the 420 sq ft carport into compliance with the Ordinance. Staff also recommended denial of the special exception to bring the carport into compliance.

            Staff did however, recommend approval of a 25 ft setback variance to construct a 38 sq ft shed 25 ft from Point Lane, and also recommended approval of the special exception to construct the shed within the front yard setback.

            Dr. Tubman stated that there are really not 2 roads that go by the property.  One road is actually a dirt or grass lane.  He did not know that he needed a permit to have a carport.  The company in which he purchased the carport from said that if he moves they are able to relocate it for him.  Since it is portable he did not think he needed a permit. 

            Chairman Morris asked for any questions or comments.

            After a discussion the motion was  made to forward an unfavorable recommendation to the Board of Appeals for special exception for a carport that does not meet the 50 foot set back requirement off Bay View

Drive.  Even though the nature of the lot is unusual, all areas that can be used for the purpose of building have been used on this lot. 

            A motion was made to forward an favorable recommendation to the Board of Appeals for the placement of a 8 ft by 6 feet shed to be placed on the property off Bayview Drive because the size and shape of the lot would make it impossible to have a shed without the variance.  Other properties in the area have similar sheds.

The motion was seconded and the vote unanimous.

There being no further business, Chairman Morris adjourned the meeting at 6:20 p.m.

 

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Elizabeth H. Morris, Chairman

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Elizabeth E. Carroll, Secretary