KENT COUNTY, MARYLAND
PLANNING AND ZONING

MINUTES – The Minutes of the January 3, 2008 meeting were approved.

APPLICATIONS FOR REVIEW

David O. Watts – Road Waiver – David Watts is requesting a road waiver to allow a private road with more than five abutting properties having access to the road and a waiver of the 50 foot right-of-way width requirement for a private road.  The 189.245-acre farm is located behind Shrewsbury Church on Turner’s Creek.  The applicant wishes to subdivide the farm into two parcels and provide access by a private road.  The farm currently has “the right to make use of the old abandoned County road” and a 20-foot right-of-way granted by Charles Edward Miller, et ux in 1975.  The farm is zoned Resource Conservation District and Agricultural Zoning District and the surrounding area is characterized by agriculture and forest.

Present and duly sworn were Michael Scott, Surveyor; David Watts; and Rich Watts.

Carla M. Gerber, Community Planner, presented the staff report.  She noted that the Kent County Comprehensive Plan lists principles that will guide the County’s transportation policies.  Two of these principles apply to this case: 1) “Promote safe access to roadways by minimizing the number of and controlling the spacing between access points along arterial and collector roads;” and 2) “Assure ‘real need’ for new roads and highways.”  Applicable laws include: Article V, Section 1.8.B.3m establishes the criteria for private roads; and Article IX, Section 3 authorizes the Planning Commission to grant a waiver of private road requirements so as to relieve extraordinary hardship or other injustices arising out of the strict application of these provisions. 

Staff noted that the proposed private road is currently used as the driveway for this farm, and it meets the private road standards.  Historically, there was a County road which ran from Shrewsbury Church to Turners Creek Wharf.  The public portion of Shrewsbury Church Lane now ends at the entrance to the church parking lot.  The proposed lot will be the sixth parcel with access to the private road and abandoned County road.  Mr. Watts is requesting a waiver to allow the private road on his property with a 50-foot right-of-way and a waiver to continue using the 20 foot Miller right of way and the abandoned County road.  Mr. Watts is interested in placing the farm in an easement. 

Staff recommends approval.  The waiver will not cause a substantial detriment to the neighboring properties.  It is consistent with the Comprehensive Plan and the general intent of the Land Use Ordinance.  The strict application of these provisions would result in inhibiting the achievement of the goals and objectives of the Comprehensive Plan.  A road maintenance agreement should be recorded with the final plat. 

Ms. Gerber read a letter from Lindley Cowperthwait, attorney for adjoining property owner, Mary Phipps.  The letter stated that Ms. Phipps does not object and believes the Watts proposal makes good sense.

Mike Scott, surveyor, testified that the Watts family is proposing to create one additional lot.  He stated that in 1940 the public road was closed off beyond the Church property.  Based on a 1964 McCrone survey, Mr. Scott showed the road shifting to the east. The road through the woods has not changed.  The road waiver is to provide access to the Watts property. 

David Watts stated that he has spoken with all of the neighbors and no one had an objection to his proposal.  He stated that someday he and his brother would like to build homes on their respective properties.  Mr. Scott stated that this road would dead end.  Mr. Sutton said the property is basically land-locked. 

Ms. Morris asked for audience comments.

Stewart Barroll, attorney representing Shrewsbury Church, inquired as to the width of the road.  Mr. Scott stated that, according to the 1964 survey, it was 30 feet.  Mr. Barroll asked about the width of gravel road.  Mr. Scott stated that it is 12 feet.  Mr. Barroll asked if the Commission was aware of Judge Price’s ruling that the land was to return to the property owners when the road was closed and that the 30 foot right of way was never conveyed to the County.  He stated that the church would not object to a waiver of the existing 12-foot lane but not for any additional right-of-way.

Harold E. Miller, Jr. was present and duly sworn in.  He testified that he is not willing to give up his right to use this road.  He has no objection to the subdivision or to the Watts family using this road.

After a lengthy discussion, Ms. Brown made a motion to grant the road waiver to allow a private road with more than five abutting properties having access to the road and to grant a waiver of the 50-foot right-of-way width requirement finding:

• This would be the sixth abutting property.
• The granting of this waiver would allow the Watts property to create one additional lot.
• If anyone else wants to subdivide and use this private road, a road waiver would be necessary

The following conditions are placed on this approval:

• A survey is prepared which exactly locates the existing road and notes the actual width of the right of way throughout.             
• A Road Maintenance Agreement is approved by the Planning Commission attorney and is signed by all abutting property owners.

The motion was seconded and approved unanimously.

Larry and Hildegard Sunkler – Buffer Variance  – Mr. and Mrs. Sunkler request a variance to construct a single family dwelling within the Critical Areal Buffer.  The 0.6 acre property is located on Gray’s Inn Creek Road in the Fifth Election District and is zoned Critical Area Residential.  The parcel is located within a Modified Buffer Area and located between two developed parcels with single family dwellings located within the Critical Area Buffer. The parcel is located along Gray’s Inn Creek; the surrounding area is zoned Resource Conservation District and Critical Area Residential with a mixture of farmland and homes on small parcels.                                                                                 

Present and duly sworn were Larry Sunkler and Bill Crowding, surveyor. 

Amy G. Moredock, Environmental Planner, presented the staff report noting applicable law  Article V, Section 2.5 which establishes the minimum yard; Article V, Section 2.7.B.3  which addresses the development in the buffer; and Article IX, Section 2.2 which authorizes the Board of Appeals to grant variances from the buffer requirements.  The Comprehensive Plan directs the County to “Maintain, enforce, and if necessary, strengthen regulations for floodplains and buffers.”

Staff noted that a variance is required to locate the single family dwelling approximately 65 feet from mean high tide.  The modified buffer provision does not apply to this structure.  As there currently are no dwellings located on the parcel, the current proposal does not meet the Modified Buffer provisions standards.  The proposed structure is neither an expansion of an existing dwelling nor a dwelling which existed as of April 12, 1988.  Further, the applicants have not exhausted all opportunities for expansion outside of the buffer.  There appears to be adequate square footage on the parcel located outside of the buffer to accommodate the proposed dwelling footprint.  The variance will not cause a substantial detriment to neighboring properties, nor will it change the character of the district.  The Comprehensive Plan encourages the maintenance of buffers.  The variance is not in harmony with the general spirit and intent of the Critical Area Law nor with the regulations adopted by Kent County.  Staff feels that denial of the proposal as presented does not constitute an unwarranted hardship, nor does it deny the applicant of uses generally shared by neighboring property owners as the applicants have adequate room onsite to construct the proposed dwelling outside of the buffer.

Staff recommends denial.

Ms. Moredock read correspondence from the Critical Area Commission, which stated that they oppose the variance to construct the proposed single family dwelling unit in its current location.  CAC staff further cited Critical Area regulation as it relates to granting buffer variances.

Mr. Crowding, surveyor, testified the applicant would like to build his home in the proposed location because it would be in line with the other houses in the neighborhood.  The Sunklers feel that it is desirable to keep the houses in line so that the neighbors are not looking into the backs of each others houses.  Mr. Crowding testified that all house are closer than 100 feet to the mean high water line.  He stated covenants restrict building within 50 feet from the road/rear yard; therefore, the available space left to construct a dwelling is limited.  A revetment has been placed across the front of the property.  Mr. Crowding noted the proposed house is no larger than the other houses in the area.  He feels that allowing the house in the buffer will make the neighborhood consistent.  Mr. Crowding stated that the property is served by public sewer.   Two trees would need to be removed with this proposal.  If the dwelling is moved, he feels more trees would need to be removed.

Maxine Younger, being duly sworn, testified that she supports this proposal.  She feels that the proposed dwelling would look better if it were in line with the neighbors’ homes.

Donald Dunn, being duly sworn, testified that he supports the application.

Ms. Brown asked how many empty lots in the modified buffer are left in the County.  Ms. Moredock said there are not many and that most have already been developed. 

After a lengthy discussion, Ms. Brown made a motion to send an unfavorable recommendation to the Board of Appeals finding:

• There is sufficient acreage onsite available to build a reasonable dwelling outside the buffer.
• The variance would not cause a substantial determent to neighboring properties.
• The variance would not affect the character of the district. 
• The Comprehensive Plan encourages the maintenance of the buffers.
• The variance is not in harmony with the general spirit and intent of the Critical Area law.
• The denial of the building within the 100-foot buffer does not constitute an unwarranted hardship, as there is sufficient room onsite to construct a single family dwelling without a variance.  
• It does not deny the applicant a use that is generally shared by neighboring property owners.

If the Board of Appeals is inclined to approve the variance, then the following conditions should be applied:

• An area of natural vegetation equal to three times the footprint of the dwelling shall be planted in the 100-foot buffer consisting of a mix of native trees and shrubs.
• If there is not enough area in the buffer to accommodate the required planting, the required planting shall occur on the same property.
• Stormwater runoff from should be directed to stable vegetation in the form of rain gardens, if site appropriate.

The motion was seconded and approved unanimously.

Staff Reports:

Gail Owings – Ms. Owings informed the Board that a joint meeting will be held with the Chestertown Planning Commission on February 20, 2008 at 7:00 p.m. to discuss the Chestertown Gateway Project.    She also informed the Board that the County Commissioners approved the Stoltzfus Text Amendment.  The Board of Appeals approved the Choptank and the Cording applications.  There are numerous changes to the Critical Area law proposed for this session of the Maryland General Assembly.  Ms. Owings informed the group that a documentary titled “Death by a Thousand Cuts” will be aired on PBS on February 27.  This is a documentary of the Chesapeake Bay.  O’Brien and Gere have been hired as consultant for the upgrade of the sewer plan.  It is hopeful that this will be completed by October. 

Kennedyville Master Plan – After a brief discussion, the Commission decided to meet on February 28, 2008 at 7:00 p.m. in the Commissioner’s Hearing room to review this plan.

Agricultural Priority Preservation Area - Ms. Gerber asked for comments on the draft Priority Preservation Element which will be an appendix to the Comprehensive Plan.  After a brief discussion the Board informed Ms. Gerber that she should proceed forward the PPA to the Maryland Department of Planning for an informal review of the draft. 

Chestertown Gateway Project – Ms. Owings presented the members with a summary of the meeting held on January 30, 2008. 

The next meeting will be held on March 6, 2008.

There being no further business the meeting was adjourned at 3:55 p.m.

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Elizabeth Morris, Chairman

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Kim Dixon, Clerk