KENT COUNTY, MARYLAND
PLANNING AND ZONING

The Kent County Planning Commission met in regular session on Thursday, May 1, 2008, 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; Patricia Langenfelder; Rev. Ruben Freeman; F. Joseph Hickman; Jay P. Lancaster; Gail W. Owings, Planning Director; Carla Gerber, Community Planner; Amy Moredock, Environmental Planner; G. Mitchell Mowell, Planning Commission Attorney and Kim Dixon, Secretary.

Chairman Morris called the meeting to order at 1:32 p.m.

Review of the Bylaws -

Gail Owings presented the staff report noting that it has been some time since the Planning Commission updated its Bylaws and although the Commission reviews its procedures at its Annual Meeting in March, a thorough review of the Bylaws may be appropriate.  In 2006, the Maryland Attorney General updated the Maryland Open Meetings Manual. 

Staff believes that the Commission may wish to discuss adopting a Rules of Procedure document and including the following in the Bylaws

• Procedures for distribution of written public comments / questions from interested citizens received on a project prior to a meeting when these written documents are too large to read into the record.
• Procedures for public comment in contested cases, i.e., advance sign in sheet, etc.
• Incorporation and update of the previously adopted contested case meeting proceedings.
• Listing of the Commission policies concerning Ex Parte Communications.
• Reference to the Maryland Open Meetings Act and Manual.
• Replace any references to proponents or opponents with interested citizen.
• Electronic presentations policy

After a lengthy discussion and reviewing the Update of the Open Meetings Manual and Bylaws from Montgomery, Baltimore and Calvert Counties, the Planning Commission asked staff to prepare a draft revision of the Bylaws for its consideration.  Members agreed that written comments will be read into the record except when the comments are numerous or lengthy in which case the staff will place a note on the preliminary staff report that comments have been received and are in the Planning Department for review.  Mr. Mowell stated that the Commission should adopt Chapter 3 of the Montgomery County Bylaws dealing with ex parte communications in its entirety.  The Bylaws should reference the Maryland Open Meetings Law and Manual.  The Planning Commission asked Ms. Owings to review the policy of other counties concerning electronic presentations and their submittal and make a report to the Commission. 

MINUTES 

The Minutes of the April 3, 2008 were deferred until the June meeting.

APPLICATIONS FOR REVIEW

County Commissioners – Worton Water Treatment Plant Upgrade – The Kent County Commissioners request final site plan approval for an upgrade to the existing Worton Water Treatment Plant.  The proposed upgrade will entail the construction of an additional building, which will be approximately 1,300 square feet and an approximately 1,600 square foot underground backwash tank.  Two existing buildings currently characterize the site. The facility is located on a 0.75-acre parcel on Worton Road / Route 297 in the Third Election District and is zoned Village.  This site is surrounded by commercial and residential development and Worton Park.

Amy Moredock presented the staff report which includes the applicable law Article V, Section 7.5 which establishes the bulk and yard requirements; Article V, Section 7.5 which establishes permitted public uses, buildings and utilities; Article V, Sections 7.6 and 7.7 which set forth the environmental standards; Article V, Section 7.7B which establishes the design standards; and Article VI, Section 5.3.B which establishes the procedures and review standards for major site plans.

Staff recommends approval contingent upon the approval of the stormwater management and sediment control plans.

There was no correspondence in this matter.

Present and duly sworn were Wayne Morris, Director of Water and Wastewater, and Barry Ebersol, McCrone, Incorporated.

Mr. Morris stated they have addressed the concerns raised by the Planning Commission at the April meeting.  He stated they changed the façade of the building and roof design and added additional landscaping.  The old building would be painted to match the new building. 

Mr. Sutton stated that the applicant has done an outstanding job of making the building fit into the village setting.  Ms. Langenfelder said the landscaping looks adequate.  Mr. Lancaster asked whether there was a maintenance plan for the landscaping.  Mr. Morris stated the operators at the plant would do the maintenance.

Chairman Morris asked for comments from the audience.

Bill Crowding, being duly sworn, asked if there were any plans to screen the parking area.  Mr. Ebersol stated it would be landscaped. 

John Nunn, being duly sworn, testified that he feels this plan is an improvement over the original submittal.  He asked if the entrance would be moved.  Mr. Morris stated it would not.  Mr. Nunn questioned the lack of landscaping along the eastern property line near the railroad tracks to which Mr. Morris noted that there was insufficient room available on that side of the property.

After a brief discussion, Mr. Lancaster made a motion to grant final site plan approval for the Worton Water Treatment Plant Upgrade contingent upon approval of the stormwater and sediment control plans citing the following:

• The landscaping is adequate and well done.
• Façade enhancements have been provided which address architectural features.
• Letters of credit are not required since this is a county project.
• The proposal is consistent with the Comprehensive Plan.
• The Worton and Butlertown Draft Village Master Plan recommended anticipated upgrades to the water treatment plant in its Community Facility Infrastructure Needs Assessment and the 2005 Supplemental Report.
• Lighting will be dark sky compatible.
• Provision for parking and loading appear to be adequate.
• The Kent County Department of Water and Wastewater has approved this plan.
• The Kent County Health Department has approved this plan.
• The State Highway Administration has approved this plan.
• The upgrade is a permitted use in the Village district.

The motion was seconded and approved unanimously.

Piney Neck Land, LLC – Amendment to Deed Restrictions – David Moss and Sam Owings of Piney Neck Land, LLC are requesting approval for an amendment of the deed restrictions for the Ashley Pines subdivision.  Under the General Provisions found in the subdivision restrictions and covenants, any amendment to the provisions of Article V (Design Standards, Prohibited Uses and Nuisances) or Article VI (Easements) is subject to the approval of the Kent County Planning Commission.  The applicant is proposing to reduce the minimum floor area and eliminate the requirement for front porches.  The property is zoned Community Residential and the surrounding area is characterized by houses on small to medium lots along the roadways and agricultural land behind the houses.   

Ms. Owings stated it could be perceived that she had a conflict of interest and recused herself from the hearing.

Carla Gerber presented the staff report noting applicable law Article V, Section 6.9A which contains general design standards for the Community Residential District, including “Proposed development shall be related harmoniously to the terrain and to the use, scale and architecture of existing buildings in the vicinity that have functional or visual relationships to the proposed buildings.”

Staff noted that she reviewed the Computer Assisted Appraisal (CAMA) dataset from the State Department of Assessment and Taxation (SDAT) as found on the 2007 Edition of MdProperty View.  Of the roughly 100 properties in the vicinity, 77 have houses and 48 of those have at least one porch.  On many of the older houses, the porches have been enclosed over the years.  The applicant also presented the project to the neighbors and the Planning Commission as reasonable-sized, stick built houses with design features including front porches.

Staff recommends requiring front porches on 50% of the dwellings but allowing the minimum floor area to be reduced as proposed.

There was no correspondence in this matter.

Present and duly sworn was David Moss.  He testified that he has been trying to sell lots from this property.  He has advertised all over the Eastern Shore.  Given the real estate environment, they must lower the prices of their homes.  His intention is to try to build a home with as much square footage as possible.  He has not entered into an agreement with a builder.  Although he is asking for a reduction, he would be willing to adjust his request to work with the neighbors. 

Mr. Sutton asked if this reduction involves covered porches only or would decks be included.  Mr. Moss stated he is asking for the removal of porches and decks.  Mr. Hickman stated the standards are meant to compliment what is already there.  Mr. Moss stated he has to have a base square foot minimum that he can sell.  He asked to change his request from 900 square feet to 1,100 square feet.  Mr. Mowell stated that he could do that. 

Chairman Morris asked for comments from the audience.

Present and duly sworn was Ernest Padnovani.  He stated that he is disturbed by the proposed square footage and does not think it is compatible with the surrounding area.   He asked the Board to think about if they lived there, would they want a 1,000 square foot rancher next to their house. 

Bryan DiGregory, Esquire, being duly sworn, stated that he is representing Mr. Michaels, an adjacent property owner.  He stated that a 900 square foot home is a grave departure from the initial proposal.  Money is the bottom line to the applicant. The Commission should be thinking about the long term and to approve this request would be contradictory to the Comprehensive Plan.  He feels that 900 square foot homes would essentially be mobile homes.  He urged the Commission to not approve this request.

Ann Husiner, being duly sworn, opposed the proposal stating it is not in character of the neighborhood and she is against doublewide trailers that would hurt property values in the area.

Sheila Pierce, being duly sworn, stated she has lived in the neighborhood for more than 30 years and is opposed to this change.  She is concerned about the property values of the existing homes.

Dr. Tom McHugh, being duly sworn, testified he is opposed to the application and it is not the neighbor’s fault that the owner cannot make money.

Dawn Nordhoff, being duly sworn, stated she understands the builder is losing money, but the neighbors should not have their properties devalued due to a change in the proposal.  She does not want to see the character of the neighborhood change.

Robert Trego, being duly sworn, stated he agrees with the other Protestants and is afraid a 900 square foot house would draw low income and unsavory type residents.

Walter High, being duly sworn, stated his house doesn’t have a porch and asked if this would change the Covenants and Restriction.  Ms. Gerber stated it would. 

Doris Hill, being duly sworn, stated she agrees with the Protestants.  

Mr. Moss summarized by saying “doublewide” is not an appropriate term, they will be stick built homes.  If he sells the property, he would have no control over what is built. 

Reverend Freeman stated he feels the statement about smaller homes and unsavory people is an unfair statement. 

Mr. Lancaster stated he feels the changes are unacceptable.  The original covenants were well thought out and should stand.

Ms. Langenfelder said the original covenants were a good and equitable plan and to change them now would change the character of the neighborhood.

After a brief discussion, Mr. Hickman made a motion to deny the request for changes to the deed restrictions stating:

• The current standards are good and reflect the character of the area.
• There should be no design standard changes to the covenants. 

The motion was seconded and approved unanimously.

Mr. Hickman made a motion to direct Staff to define garages as square footage not included in the current square footage of living space as defined.  Garages will not be included in the minimum size of the dwelling.

The motion was seconded and approved unanimously.

Zoning Text Amendment – Matapeake Partners, LLC – Byrne Murphy, representing Matapeake Partners, has submitted an application to amend Article V, Section 13.2 of the Kent County Land Use Ordinance (Marine District Permitted Uses) by adding the following new permitted use:

“12. One or more buildings owned, co-owned, or operated by a corporation, association, person or persons for transient or vacation use, by the day, week or month, or on another reserved time basis.”

Ms. Owings presented the staff report noting the Applicable Law Article XII, Section 6 which establishes the standards for the review and approval of a zoning text amendment

Staff made the following recommendations:

• In staff’s opinion the proposed text amendment is so vague that most any type of accommodation or rental agreement would apply.
• If the Commission wishes to provide this type of tourist facility in the Marine District, staff proposes the following amendments as an alternative to the proposal:
• Add #10 to Article V, Section 13.3 (Marine District) of the Land Use Ordinance: Private Destination / Residence Clubs
• Add #28.5 to Article VII, Section 6 (Special Exception Procedures): Private Destination / Residence Clubs.
• Add #38.5 to Article VII, Section 7 (Special Exceptions):

Private Destination / Residence Clubs in M provided:

a.       The aggregate Marine zoned property shall consist of 4 acres or more.

b.       The facilities for such overnight accommodations shall pay the appropriate county taxes, including taxes payable under Article III of Chapter 152 of the Code of Public Local Laws of Kent County.

c.       The facilities for overnight accommodations shall use a reservation system.

e.       Permitted accessory uses may include clubhouses, restaurants, cafes or other dining facilities, bars, pubs or taverns, recreational facilities such as tennis courts and swimming pools and spas; but not including trap, skeet, clay birds, paint ball or other similar firearm activities, other accessory uses that are customarily associated with a lodging facility.  The applicant shall describe all proposed accessory uses in the application of site plan.  Recreational facilities shall be at least 25 feet from nearest property line.

g.       Where they exist, listed historic structures shall be incorporated into the overall project.

h.       Significant view corridors, both from the site and onto the site shall be preserved as far as possible.

i.         The height of all structures shall not exceed 38 feet.

j.         The Planning Commission will negotiate a buffer for all new lot coverage of not less than 50 feet or more than 200 feet.

k.       A minimum 100-foot buffer shall be provided to all adjacent properties from Protected Lands.

l.         Parking lots shall be landscaped as required for commercial developments in Article V, Section 11 of this Ordinance

m.     The approval of a facility for overnight accommodations shall not impose restrictions that will preclude the use of the marina and property for commercial marine uses permitted in the Marine Zoning District, including boat building, storage, and repair, however the continuation of these uses shall not be required.  The maintenance and continuation of boat slips will be required.

n.       The Board of Appeals may require connection to public sewer systems or provisions of a community wastewater treatment system.

o.       Campgrounds, mobile home, recreational vehicle, and manufactured home parks shall not be considered private destination or residence clubs.

o        Add #242.5 to Article XI, Section 2 (Definitions) of the Kent County Land Use Ordinance: Private Destination / Residence Club: Tourist accommodations in one or more buildings owned, co-owned or operated by a corporation, association, or person and serving as the temporary abode of persons having a residence elsewhere and offering both pre and post arrival concierge service.  The use and occupancy of the units circulates among individuals on a periodically recurring basis and is inherently transient.

Correspondence in this matter was received from the Critical Area Commission.

Present and duly sworn was Daniel Saunders, Esquire, representing Matapeake Partners.

Mr. Saunders testified that he and his client chose not attend the Planning Commission workshop on this matter so the members would be free to discuss this issue.  He stated has a problem with item “j” concerning lot coverage because there is already a lot of restriction by the Critical Area Commission and the Land Use Ordinance.  He requested that “j” be omitted.  He is also concerned about “k” 100 foot buffer from protected land.  He would also like to see this omitted for the same reason as “j”.  He said “n” should be covered by the Health Department, they should decide what type of system is required.  He also stated that the definition should state “person or persons”.  He does not think this should be a special exception or a conditional use; it should be a permitted use.

There were no audience comments.

After a lengthy discussion, Ms. Langenfelder made a motion to recommend the County Commissioners adopt the version of this text amendment that was submitted by staff with the exclusion of “k” and to include the definition change (adding “or persons”) citing:

• The Comprehensive Plan recommends we enhance the tourist facilities and activities.
• The Comprehensive Plan recommends enhancement of boating-related industries and to promote boating in Kent County.
• The Planning Commission has seen a possible public need as enhancement to the boating business and tourism.
• This complies with the Comprehensive Plan and Critical Area Program.
• The text amendment should remain a special exception as proposed by staff.

The motion was seconded and approved unanimously.

Sassafras Holding Company – Wilson Point Estates – Major Subdivision – Final Plan – Sassafras Holding Company has submitted for final review a major subdivision of its 31.15 acre property at the end of Wilson Point Road in the First Election District.  The proposed development will consist of fourteen lots on approximately 10.7 acres, an extension of Wilson Point Road, which will be dedicated to the County, and 18.69 acres in open space.  With the exception of lots 4 and 5, the lots are adjacent to open space areas.  Access to the subdivision is from Wilson Point Road, which is considered a collector road.  Lots 1 – 11 will front on the proposed extension of Wilson Point Road.  Lots 12, 13 and 14 will front on Wilson Point Road and Lot 2 will front on Sassafras Cove Road.  Each property will have a private septic system and private well.  The approximately 31-acre parcel is currently wooded. Steep slopes, a ravine and stream forms the southwestern portion of the property.  The stream originates to the north east of the property.  The property is surrounded by single-family dwellings, large waterfront lots and a field to the southwest.  It is part of a large developed woodland that is part of a green infrastructure corridor.  Approximately 3.9 acres of the property is zoned Resource Conservation District.  This portion of the property is designated open space.  The remaining portion of the property is zoned Community Residential.

Ms. Owings reviewed the staff report noting the applicable law including Article V, Section 6.5 which establishes the density, height, area and yard requirements for the Community Residential District; Article V, Section 6.6 which establishes open space requirements for the Community Residential District; Article XI, Section 2.223 which defines open space as those areas suitable for common recreational use or which provide visual relief to developed areas; Article V, Section 6.7 which establishes the environmental standards for Community Residential Districts; Article V, Section 6.7 which establishes the forest conservation requirements for Community Residential Districts; Article V, Section 6.8 which sets forth the general design standards for Community Residential Districts; Article V, Section B.8C1 which sets forth the site access standards; and Article VI, Section 6.3B15 which directs the Planning Commission to prepare findings of fact concerning the reasonable fulfillment of objectives.

Staff noted that the proposal complies with the density, bulk, environmental and design requirements of the Ordinance. It should have little impact on circulation or the view from Wilson Point Road.  Care must be taken during construction to preserve the woodland and minimize disturbance of highly erodible soils at the site. Generally, lot sizes are the same but the shape of the lots varies.  Street trees will be required. Lighting should be dark sky compatible.  Removal of forest has been minimized.  The applicant has made an effort to integrate the subdivision into the existing landscape.  The Citizen Participation Plan was well done and well received.  The Maryland Department of Natural Resources has conducted an Environmental Review and stated that they do not have any records of rate, threatened or endangered species on this site. 

Staff recommends approval of the final plan contingent upon the following:

• Mitch Mowell’s approval of the deed restrictions that address forest protection including reflection of clearing and impervious surfaces permitted on each lot, forest interior dwelling bird protection, lighting, open space maintenance and permitted uses, and stormwater management maintenance.
• Approval of road plans
• Sureties in the amount of 125% of the estimated costs for landscaping and afforestation, road and utility construction, stormwater and sediment control are approved by the County Commissioners.

There was no correspondence in this matter.

Present and duly sworn was Grant Gregor and Nick McMaster, Merestone Consulting and Brian DiGregory, Hoon and Associates.

Mr. Gregor stated he understands this is a sensitive project.  They have preserved 60 to 65 percent of the property and he has worked closely with all agencies to minimize the impact of the project on the environment. 

Mr. Hickman asked who controls the pond on the property.  He said ownership is shared by this property and the Shorewood Estates Community Association. 

Mr. Sutton asked about using nitrogen removal systems for this project.  Mr. Gregor stated that John Beskid of the Kent County Health Department is not in favor of requiring those systems on this property because of maintenance issues.  He said he feels the typical system would be better for this site.

Mr. Sutton asked if input had been received from the Galena Fire Department and Emergency Services.  Ms. Owings stated they had responded to the Department of Planning, Housing and Zoning and had no comments.

Mr. Sutton asked who would monitor the pond and erosion.  Mr. Gregory stated that question would need to be deferred to Joe Blizzard.  Mr. Blizzard, being duly sworn, stated the existing gully is fifteen feet wide and a sediment trap will be installed.  He stated there would be a maintenance agreement recorded and it will be inspected every three years. 

Mr. Hickman asked what will happen to the old house.  Ms. Owings stated it will be moved and kept with the house on the property and used as a gatehouse.  

Chairman Morris asked for comments from the audience. 

Charles McClain, being duly sworn, stated he had submitted a letter a year ago.  He stated his property has a direct view of the pond.  He is worried about the long-term effect on the pond from the fluids coming from the roadway.  He is also concerned about the effect on the wildlife in the area.  He feels there have not been enough precautions taken to protect the pond and ultimately the Sassafras River.

John Vail, being duly sworn, testified he is a representative of the Sassafras River Association and is shocked that John Beskid thinks nitrogen removing systems are inappropriate for this property.  He is concerned about the fragile condition of this area. 

Robert Stevenson, being duly sworn, stated he will be affected aesthetically by this project and asked what the square footage of these homes would be.  Mr. Gregor stated the houses would be between 2,500 and 7,500 square feet of living space.  Mr. Stevenson asked that a split rail fence be constructed between his property and this property.  Mr. Gregory stated he could not make that decision however he will speak with the owner. 

In summary, Mr. Gregor stated they have looked at the sensitivity of the area and this project will have little to no impact on the area.  They are trying to minimize the impact of off site water through their property to the pond.  He stated that Mr. Beskid said an easier system to maintain would be more practical on this project. 

After a lengthy discussion, Mr. Lancaster made a motion to grant final subdivision approval contingent upon acceptance or sureties by the County Commissioners and approval of deed restrictions citing:

o        The proposal complies with the density, bulk, environmental and design requirements of the Ordinance.

o        The proposal should have little impact on circulation or the view from Wilson Point Road.

o        Care must be taken during construction to preserve the woodland and minimize disturbance of highly erodible soils at the site.

o        Street trees will be required.

o        Lighting should be dark sky compatible.

o        Removal of forest has been minimized.

o        The Maryland Department of Natural Resources has conducted an Environmental Review and stated that they do not have any records of rare, threatened or endangered species on this site.

o        This project meets the open space requirements.

The motion was seconded and approved unanimously.

The Planning Commission took a five-minute break.

At this time Paula Ruckelshaus requested the hearing for Verizon be postponed until a later date.  Steve Resnick, attorney for Verizon, opposed the postponement.  The Planning Commission decided not to postpone the hearing; however, they notified everyone that the hearing would not begin before 7:00 p.m. on this date.  This would allow for the applicant and protestant to leave and come back.

Chester River Yacht and Country Club – Pier Length Variance – The applicants wish to construct a second pier onsite totaling 220 feet.  A variance of 70 feet is required to construct the pier.  The approximately 175-acre property is located on Quaker Neck Road in the Seventh Election District.  The property is currently comprised of a private country club and yacht club, a golf course, a swimming pool, a pier, a boathouse, and accessory buildings incidental to the maintenance of a private club and golf course.  The surrounding area is characterized by residential development and is zoned Critical Area Residential, Community Residential and Rural Residential.

Amy Moredock presented the staff report citing the applicable law Article V, Section 5.5 which establishes minimum yard requirements; Article V, Section 5.4.8 which establishes permitted accessory uses in the Critical Area Residential Zoning District; Article IX, Section 2.2 which authorizes the Board of Appeals to grant variances from the yard, height, bulk, parking, loading, shoreline cliff, 15% slope, pier length, impervious surface, stream protection corridor and buffer requirements;

Staff noted that the granting of a variance will neither cause a substantial detriment to neighboring properties nor will it change the character of the neighborhood and district.  Private clubs are special exceptions in the Critical Area Residential Zoning District and the CRYCC received approval to operate a private yacht club in 1963.  A yacht club is considered a marina by Ordinance definition; therefore, the proposed pier is an accessory use associated with a yacht club.  The granting of a variance is not in conflict with the intent of the Ordinance or the Critical Area Program.  Granting the variance will not confer upon the applicant privileges denied to other private clubs

Staff recommends the following: 1) that mitigation be set at a ratio of 3:1 for buffer disturbance and that the areas of mitigation be approved onsite and planted with native cultivars; 2) that the channel location be verified by survey prior to the issuance of a building permit.

There was correspondence from the State Highway Administration indicating they have no objection to this application.  Correspondence was also received from the Critical Area Commission; the Commission does not oppose this application.

Present and duly sworn was Missy Jordan, Bunky Jordon and Kirk Helfenbein.

Missy Jordan testified that this project meets the side yard setbacks.  She said it will not be detrimental to the neighborhood, and the Kent County Comprehensive Plan promotes boating and the expansion of existing businesses.  She explained this pier will match the existing pier and will be 93 feet from the channel.  The Country Club has 600 members and only 18 waterfront boat slips.  Ms. Jordan stated that the Maryland Department of the Environment and the Department of Public Works have approved this application.  She explained that, with this pier, larger vessels could come from Baltimore and dock in the deeper water. 

Bunky Jordan identified the Country Club on a nautical chart and noted the proposed pier would not encroach on the channel. 

Mr. Helfenbein stated the Country Club has had to turn away transient traffic because of the docking issues.  He said the Club currently has 25 members on the waiting list for slips. 

Mr. Sutton asked if the proposed pier would be any closer to the channel than the exiting pier.  Mr. Jordan said it would not. 

Chairman Morris asked for audience comment.  There were none.

Chairman Morris asked the applicant to explain the practical difficulty.  Mr. Jordan stated they can not be in less than 4½ feet of water, so they must go out further to get more slips.  Chairman Morris explained the depth of the water is not a practical difficulty.  Mr. Lancaster stated he could not find a practical difficulty with this application.  Mr. Sutton asked how far the pier would need to extend to reach 4½ feet.  Mr. Jordan stated it was approximately 120 feet.  Mr. Sutton asked what would be on the end of the dock. Mr. Jordan stated it would be for docking transient boats only. 

Mr. Helfenbein stated the practical difficulty is that people joined the Country Club so they would have a place for their boat and now they don’t have a slip.

Mr. Lancaster made a motion to send no recommendation to the Board of Appeals because the Planning Commission could not find the practical difficulty in the application.

The motion was seconded and approved unanimously.

Langford Bay Associates – Width of Waterway Variance – Langford Bay Associates, LLC, requests a variance to repair and replace the existing 200 foot pier with 10 finger piers and approximately 40 pilings which comprises 29% of the waterway in Herrington Creek.  The width of the waterway in this location is 756 feet; limiting a pier to 25% or 189 feet.  The 0.33 acre property is located on Kelley’s Park Road in the Fifth Election District and is zoned Marine.  The surrounding area is zoned Marine and Critical Area Residential with a mixture of one and two story homes on varying sized lots.  This parcel is located adjacent to a County Landing and Dock and other marinas.  This parcel is the site of Steamboat Landing Marina, which operated as a marina for over 50 years. 

The applicant is requesting to remove the existing dock, finger piers and pilings, which are in disrepair and replace the entire infrastructure within the same footprint.  The current configuration is nonconforming as the existing dock, finger piers and pilings encroach on two adjacent parcels including the County Landing.  When nonconforming structures are removed they must meet current Ordinance requirements if replaced.  A variance is required to replace the entire infrastructure.  In addition to a variance, the applicant must adjust lot lines and generate a riparian rights agreement to come into conformance with the Ordinance. The applicant is currently completing a lot line adjustment, purchasing land from the County, and generating a riparian rights agreement with the County.

Amy Moredock presented the staff report citing applicable law Article V, Section 13.2.1 which establishes permitted uses in the Marine District; Article V, Section 13.5 which requires a minimum yard; Article VI, Section 3.7.3 which establishes special requirements for water dependent uses; Article IX, Section 2.2 which authorizes the Board of Appeals to grant variances from the yard, height, bulk parking, loading, shoreline cliff, 15% slope, pier length, impervious surface, stream protection corridor and buffer requirements;

Staff noted that the applicant intends to purchase land from the adjacent property owned by the County and establish a riparian rights agreement setting a 15 foot setback agreement between parcels 5 and the County Public Landing.  Two lot line adjustments will be required for the project to be reviewed as presented.  The applicant needs a pier length variance of 31 feet to construct a 220-foot replacement pier, which comprises 29% of the waterway.  The applicant’s pier, finger piers and pilings are located predominantly within the setback of neighboring lots; therefore, lot line adjustments are required prior to receiving variance to setback and pier length variances.  The riparian rights agreement must be submitted and reviewed by the County Attorney.

The variance will neither cause a substantial detriment to neighboring properties nor change the character of the district as the current pier configuration has been in existence for many years.  Denial of the variance may deny the applicant reasonable use of the entire parcel as marinas in the vicinity have piers which encroach more than 25% of the waterway.

If the applicant purchases land from the county, records a riparian rights agreement which has been approved by the County Attorney, and adjusts both lot lines onsite, then staff would recommend approval citing the direction given in the Comprehensive Plan to promote the County as a boating center to reconcile the needs of both commercial and recreation water access interests.

Correspondence was received from the Critical Area Commission.

Present and duly sworn was Mark Carlson.

Mr. Carlson testified he had met with the Public Landings Board and will be purchasing 581 square foot of land from the County.  He is currently completing a lot line adjustment between parcels 12 and 5 to make them into one parcel with two zonings.  A riparian agreement is also being created.  He stated that eventually he would like to construct a bathhouse with showers, which is a permitted use on the property. 

Chairman Morris asked what services will be offered to the customers.  Mr. Carlson said he would offer slips and bathhouse facilities only.  He stated he would remove the existing house and build a new home that he will live in. 

Chairman Morris asked for audience comments.  Present and duly sworn was David Ransom.  Mr. Ransom stated the piers need to be replaced.  He believes the shoreline should be protected.  He would like to purchase land from the County so that he can protect his property as well. He stated he is in support of the application. 

Present and duly sworn was Dale Robertson.  Mr. Robertson stated the pier needs to be repaired; he is in support of this application.  He thinks Mr. Carlson will improve the neighborhood. 

After a discussion, Mr. Hickman made a motion to send a favorable recommendation to the Board of Appeals with the following conditions:

• A lot line adjustment must be completed.
• A purchase agreement with the County is signed to purchase the additional land.
• Riparian rights agreement must be approved by the County attorney.

Mr. Hickman stated the applicant is replacing what is already there and this will be the same as other marinas in the area.

The motion was seconded and approved unanimously.

Union U.M. Church – Special Exception / Concept Site Plan – Cemetery – The Trustees of Union United Methodist Church in Colemans Corner are requesting approval for a special exception to locate a cemetery on a 0.371 acre, landlocked property.  The parcel is roughly 100 feet by 150 feet.  The surrounding area is characterized by residential development, and the property is zoned Village. 

Carla Gerber presented the staff report citing the applicable law Article VII, Section 7.12 which permits a cemetery, including crematorium and mausoleum in the Village District; and Article VII which states that the Board shall give consideration to a list of items. 

Staff noted that a cemetery should not affect traffic patterns to a significant degree and will not require public services.  There should be no environmental impact or other hazards.  However, a cemetery may not be the most appropriate use of this parcel.  It is surrounded on all sides by residential properties and the church is not adjacent or even easily visible from the proposed cemetery.  Graveside funerals would require attendees to park at the church, walk along Still Pond Neck Road, past a private residence and across the yard of the church owned residence.  Staff is not qualified to comment on whether or not the proposal would affect property values.

Staff recommends denial of the application.  However, should the application be approved, staff recommends the following conditions:
Resolution of the well and property line dispute with the adjacent property.

• Recorded access easement / agreement.
• Screening of adjacent properties with native species.  A “wall” of evergreens or bamboo is not acceptable.
• Permanent markers for outside corners of cemetery.
• Approval of a perpetual maintenance agreement.

There was no one present to represent the applicant.

Correspondence was received from Robert and Ruth Elliott and Frank Kamm.  Both letters were in opposition of this application.

Chairman Morris asked for audience comments.

Arthur Elliott, being duly sworn, stated he is opposed to this application and believes property values in the area will be negatively affected.  He stated that a cemetery should not be in the center of a residential neighborhood.

Linda Elliott, being duly sworn, testified she is opposed to this application and is worried about the validity of the survey.  She stated that access to this property would require entrance through the parsonage yard or the Henderson land.  She stated that this is a tiny spot for heavy equipment and cars. 

Paul Roberts, being duly sworn, stated this is a bad location for a cemetery.  He stated the Henderson property could be purchased and would be a more appropriate location for the cemetery.  He is concerned about the property values going down in the neighborhood.

Charles Bessicks, being duly sworn, testified he has a contract to purchase a house next to the property and if the cemetery is allowed he will not purchase the home.  He is concerned about the parking issue for the cemetery.

Darlene Roberts, being duly sworn, testified parking will be an issue, and there is no driveway to access this property.  She is concerned everyone visiting the cemetery will use her driveway.  She stated the property is landlocked.  She said her well is very close to this property and is concerned about the effect of graves so close to her well. 

Ruth Elliott, being duly sworn, stated this property is too small for a cemetery and is concerned about water contamination in the area.

Beth Kamm, being duly sworn, stated she is opposed to this project and feels it is a bad idea.

After a discussion, Mr. Lancaster made a motion to send an unfavorable recommendation to the Board of Appeals citing:

• This is a small parcel of land.
• The parcel is landlocked.
• There is no access to the property.
• There is no traffic pattern established for the cemetery.
• This project will change the nature of the surrounding area.
• There is a concern that the surrounding yards would become an extension of the cemetery.

The motion was seconded and approved unanimously.

The Planning Commission took a 30-minute break.

Verizon Wireless – Special Exception and Concept Site Plan Review – Verizon Wireless requests a special exception and concept site plan approval to construct a 195 foot monopole tower with a 4 foot lightning rod (total height 199 feet) and an area for equipment.  Verizon Wireless will install one 12’ x 30’ modular equipment shelter and associated cabinets for its antenna.  Additional shelters and cabinets will be constructed as additional antennas are co-located on the tower.  The tower and buildings will be located within a 50’ x 60’ gravel compound.  No landscaping is proposed as the tower is over 3,600 feet from Lambs Meadow Road and the property is surrounded almost entirely by woods.  The tower is to be placed on a 158.43-acre farm owned by William Bontrager located at 12530 Dad’s Desire Lane in the Second Election District.  Access will be along the existing drive, which will be improved if necessary.  The surrounding area is characterized by farmland and the village of Still Pond.  The property is zoned Agricultural Zoning District.

Carla Gerber reviewed the staff report citing the applicable law: Article VII, Section 7.35 which lists to requirements for a personal wireless facility tower, Article VII, Section 2 which states the Board or where applicable the Planning Director, shall make findings on a list of items; Article VI, Section 5.3.B which contains a list of objectives for the Planning Commission to consider when reviewing site plans.

Staff noted that according to Verizon representatives, there are no existing structures within the intended coverage area of sufficient height and structural strength that could reasonably accommodate antennas.  The tower is over 700 feet from all property lines.  The monopole will be grey in color and fencing will be provided.  The proposed equipment shelter does not have a pitched roof.  Verizon has agreed to the reporting requirements and the lease includes a provision for removal of the tower within 90 days of termination of service on the tower.  The Comprehensive Plan is mixed on this type of project.  The Agricultural Advisory Commission reviewed this application and voted to send a favorable recommendation to the Board of Appeals.  The Historic Preservation Commission voted to send an unfavorable recommendation to the Board of Appeals. 

The site plan meets the standard of the Ordinance and complies with other State and Federal regulations.  Access will be from the existing farm lane, which provides for safe vehicular movement.  There will be no additional demands on public services or infrastructure related to this tower.  No on-site facilities are required.  There should be no undue disturbance caused by excessive noise, smoke, vapors, fumes, dust, odors, glare, runoff, etc.  Minimal soil disturbance is required.  The base of the tower will be hidden by existing trees.

Staff cannot make a recommendation.  Staff does not feel that Verizon’s application contains satisfactory answers to all requirements, specifically related to consolidating and utilizing existing structures and utilizing stealth technology.  In addition, whether or not the tower unreasonably interferes with the landscape is a larger question than staff can answer.  However, staff recommends the following conditions should the tower be approved: Protective easement on the existing woodland located on the Bontrager property and planting of additional trees to create a minimum fifty foot wide buffer around all property lines.

Correspondence was received from the Kent County Historic Preservation Commission, Kent County Agricultural Advisory Commission, League of Women Voters, Rodney Little, Maryland State Historic Preservation Officer, and the Town of Betterton.

Chairman Morris reviewed the procedures for testifying.

Present and duly sworn was Barb Pivec and Steve Resnick representing Verizon.

Mr. Resnick stated the tower would be a 195-foot monopole on the Bontrager property, which is a 158-acre tract surrounded on three sides by forest.  The Board of Appeals previously approved the site several years ago.  He stated other carriers would be able to collocate on this tower.  This tower will provide a safety function for the 9-1-1 services.  The other structures in the area too short to get the coverage needed.  He said Verizon is respectful of the historic aspect of Kent County.  There are no properties that are on the National Registry within ½ mile of this site.  There are two properties on the register within 1 mile of the site.  He pointed out that the Ordinance does not state “you can’t see it from the historic site”.

Ms. Pivec showed a Power Point presentation.  She pointed out the property on an aerial photo. She stated that the setbacks are met three to eighteen times.  There are no places of public gathering within three miles of this property.  Ms. Pivec stated that AT&T and Sprint have shown an interested in collocating on this tower.  She stated the site would be visited once per month for maintenance.  She said there will no increase in traffic because of the tower.  The only light on the site will be one motion sensor light that will shine on the ground.  Ms. Pivec showed a map of the County and pointed out where other towers are located.  She then presented the pictures from the balloon test.

At this time Mr. Mowell stated the time for this speaker was up.  A discussion took place and it was decided to stick to the time rules.

Kate Mahood, being duly sworn, testified she is an Architectural Historian and Preservation Consultant.  She stated she has reviewed this application to assess it against the standards of the Kent County Ordinance.  The site of the proposed tower is not an historic property or near a National Register property. The site is surrounded on three sides by mature trees.  Distance and the trees screen the views from the National Registry properties.  Ms. Mahood stated that this property is not visible from the Scenic Byways in the area.  She stated because of the distance she does not feel that this project will have an impact on Still Pond.

Gary Westholm, being duly sworn, testified he is a real estate appraiser.  He stated that he has done appraisals for 38 years and has appraised some very historically important sites.  He said there would not be any impact on property values caused by the construction of the tower.  He stated that he has assessed many homes in close proximity to towers.  Mr. Westholm stated that he feels the distance is significant and trees screen the proposed tower and it will not affect property values in the Still Pond area.

Jose Espino, being duly sworn, testified he is a Radio Frequency Engineer with Verizon Wireless.  He stated the current system requires a monopole tower to be constructed in the Still Pond area.  He said it is the policy of Verizon Wireless to collocate rather than build a tower and there are no towers available to use in this area.  He said he evaluated every possible site in the area and this is the only one that will work.  The system cannot function; handle the hand offs and can’t provide the coverage in any other way than to have this monopole constructed in this location.  He stated the height is required to get above the tree line.  He said this site would provide wireless high-speed data service as well.  This site is the only location to achieve all the objectives.

Philip Savard, being duly sworn, testified he is a professional photographer and has been doing photo simulations and balloon tests for over seven years.  He said he has performed over fifty balloon tests and photo simulations like the one that he did for Verizon Wireless.  He stated his company is a third party that sometimes works for wireless companies and sometimes for community groups.  He explained the area from which the photos were taken and the distance from the proposed monopole.  He stated the simulation shows the height and width of the proposed monopole.  He stated he takes the photos, inflates the balloon and does the photo simulations himself. 

Mr. Lancaster asked Mr. Westholm if the appraisals he has done included the fact that some people are desensitized and some are sensitized to certain things.  Mr. Westholm stated that the method used is sales comparisons.  He stated that he deals with black and white numbers.

Mr. Hickman asked if the appraisals he has done deal with historic homes.  Mr. Westholm stated that he has evaluated historic structures.

Mr. Sutton asked if the pictures show the size of the tower including the antenna.  Mr. Savard said yes, the height and width are a good example of the tower with the antennas. 

Mr. Hickman asked why the antenna in Betterton is not 195 feet.  Mr. Espino stated because it was placed on an existing structure.  There are no suitable structures in the area of the proposed tower.

Chairman Morris asked for questions from the audience.

Paula Ruckelshaus asked if the current regulations and ordinances in effect when the original application was approved for this site.  Mr. Resnick stated that he is under the understanding that the application process is different however the regulations are the same. Ms. Ruckelshaus said the ordinances have changed.  She asked why the original tower was not constructed.  Mr. Resnick stated it was not a Verizon project therefore he does not know what happened.  Ms. Ruckelshaus asked what the propagation maps look like at the Kennedyville site.  Mr. Espino replied the site is designed to continue coverage and overlaps the necessary amount to provide adequate coverage. 

Michael Brunner asked Ms. Mahood what was meant by “no visual interference.”  Ms. Mahood said the visual impact is minimal based on standing in the yards and along the road looking toward the proposed tower.  She said the trees and the distance are the buffer. 

Walter Bowie asked if the maps are based on 700-MHz frequency.  Mr. Espino stated they are based on 900 MHz.  Mr. Bowie asked if Verizon had spent 16 billion dollars purchasing 700 MHz at the FCC auction.  A 700-MHz system is better than a 900-MHz system.  When Verizon goes to this system the proposed tower will be obsolete. 

Paula Ruckelshaus asked about the adverse impact of collocating towers on property values.  Mr. Westholm stated that he did not research this issue. 

Elizabeth Beckley asked what criteria Ms. Mahood used when determining that the tower will not have a negative impact.  Ms. Mahood stated she looked at all of the houses on the Kent County list and Maryland Inventory relative to the proposed site.  Ms. Mahood stated she based her findings on the technical requirements of the Section 106-evaluation report and Comprehensive Plan and Zoning Ordinance and Stories of the Chesapeake Heritage Area. 

Cherilyn Widell asked if the evaluation was done before or after the determination of eligibility for Still Pond as a Historic District.  Ms. Mahood stated her reports are dated and she does not know the date of Mr. Little’s determination. 

Chairman Morris asked for audience comments. 

Michael Bourne, being duly sworn, stated he is a member of the Historic Preservation Commission.  He said the Commission made an unfavorable recommendation to the Board of Appeals. 

He stated the proposed tower is in direct contradiction to the Comprehensive Plan and Land Use Ordinance specifically Article 7 pertaining to Special Exceptions, Section 7, paragraph 35 pertaining to wireless facility towers, subparagraphs a, b, c and q.  This tower is in direct conflict with guidelines of the Kent County Historic Preservation Commission to protect, preserve and promote the historic sites, structures and views capes of Kent County. 

Cherilyn Widell, being duly sworn, testified she is giving expert testimony relating to the historic significance of Still Pond.  She explained her background and experience.  She said this cell phone tower would have an adverse effect on the cultural setting of Still Pond.  She said the State Highway Administration has realized that Still Pond has significance enough to be listed on the National Register of Historic places not for just the buildings but for the setting as well.  Ms. Widell provided a list of the properties that have been listed on the Maryland Inventory of Historic Places; some of them are individually listed.  Still Pond has been identified as a cultural landscape and has actual historic significance as being the first place in the United States where women cast votes.  She asked the Planning Commission to deny the application and urge Verizon to work with the citizens of Still Pond to come up alternatives that could provide as much coverage in a more reasonable fashion.

Tom Sisk, being duly sworn, testified he has lived on Clark Road for the past 32 years.  He stated the views from his home are spectacular.  He said he filed an appeal when the original application was approved.  He ultimately dropped the appeal.  He presented photographs that were digitally imposed to show a tower similar to the proposed tower.  Mr. Sisk showed photographs of the surrounding area. 

Mary Fielding, being duly sworn, testified she owns a 100-year-old house in Still Pond.  She stated she does not get great cell phone service in Still Pond.  She would love to have great cell phone service but she does not want to look out her kitchen window at a tower.  She would rather have dropped calls.  She feels there are other ways Verizon can provide service.  She cited the treatment in Martha’s Vineyard as an example.  She is asking Verizon to work with the citizens on this issue, they are not saying they don’t want any antennas; they do want good cell service.  It is just the way it is being done. 

Glenn May, III, being duly sworn, testified he is no expert on any of the information talked about during this hearing.  He lives in Still Pond with his wife and daughter.  He moved here from Baltimore City.  After he closed the Kennedyville Inn, he had to make a decision to stay or move back to Baltimore.  He decided to stay because Still Pond is a place he would like to raise his daughter.  He feels this tower will ruin the landscape surrounding Still Pond.  He said the tower will stick up above the trees.  He asked the Commission to strongly consider if they would like to have this tower in their backyard.

Walter Bowie, being duly sworn, testified he is a resident of Still Pond.  He said about two years ago some of the residents of Still Pond came before the County Commissioners to talk about the Village Master Plan.  At that time they were told they were next in line and the process would begin in the fall.  In the meantime Verizon has jump in line ahead of them.  He feels Verizon will strip mine the scenic beauty for profit.  He said other Village Master Plans in the County go to great length to talk about view sheds and they can’t do that because they don’t have a Master Plan.  He said the residents of Still Pond have presented several alternatives to Verizon and the company did not alter the plan to try to address the citizens’ concerns.  He said there are other technologies that do not require such an intrusive tower.  He stated he has a graphic and video company that is dependent almost entirely upon technology and broadband is available in Still Pond.  He said fiber optic is a much better way to go.  Reverend Freeman asked if the system on the light poles would be sufficient to carry cell phones.  Mr. Bowie stated it would because it is being employed in urban areas in many places.

Michael Brunner, being duly sworn, testified he is a resident of Still Pond.  He showed a rendering of the system that is used on telephone poles.  Mr. Resnick objected to the testimony of the witness regarding radio frequencies.  He said none of them are experts.  Chairman Morris said the witnesses have explained what their expertise is and we must give them their five minutes to testify.  Mr. Brunner stated he is not an expert however his point is there are alternatives and fiber optic cable on telephone poles is an option.  Mr. Brunner feels that if Martha’s Vineyard can find an alternative, there should be one for Still Pond.  He said cell towers on silos have been done in other areas and that could work in Still Pond.  He said that since the Betterton antenna went on-line his cell phone service has improved greatly.  He stated the coverage for the proposed tower does not cover any of the neck areas, therefore if safety is an issue then safety for the children in these areas must be considered.

Richard Buford, being duly sworn, testified he feels they have gotten the brush off from trying to find stealth locations.  He understands some of the possible locations will not work but there has not been enough listening to their proposals.  He does not think it is appropriate to put a giant ulcerated looking tower in their back yards.  He urged Verizon to work with the citizens in Still Pond to find a solution to this issue.  Mr. Buford asked the Planning Commission or Gail Owings to convene a very small committee to try to break the impass.  This would mean that Verizon would have to give a little and Still Pond would have to give a little.  Everyone should make a serious effort to find a solution, even if it is not perfect.

Jack Stenger, being duly sworn, testified he feels that because we live in the twenty-first century we should take advantage of the technology to make our lives safer and more convenient.  He feels that during an emergency when landlines are interrupted it could be a matter of live and death.  He is in favor of broadening the coverage in Kent County to the extent that it would service all of the areas of the County.  He thinks Verizon is on the right side of the issue in attempting to provide more adequate cell phone service. 

Paula Ruckelshaus, being duly sworn, testified the residents of Still Pond support adequate coverage, they just think there is a better way to do it.  She feels that while absolute coverage is desirable the combination of a transmission bandwidth frequency that Verizon is using today and the capabilities of the phones people use make it impossible for any company to guarantee total 24/7 service in all locations or all customers.  She feels that technology that would fit into the landscape better would be more suitable for a location such as Still Pond.  Ms. Ruckelshaus thinks the service of other providers in the area should be considered.  She also believes they have not exhausted all opportunities to collocate on other structures.  She informed the Commission that several groups and commissions have recommended denial of this application.  She stated that approval of this tower at this time would unjustly foreclose village residents promised opportunities for self determination, adequate representation and due process in this and similar matters.  Ms. Ruckelshaus stated that a year ago this Commission voted to deny an application for a similar tower based on the fact that it was in five miles within of an existing tower and it would inhibit a local crop dusting business, Nextel did not present sufficient evidence that it exhausted possibilities for collocating, no other carriers had inquired about collocating and that it would unreasonably interfere with the view from a National Scenic Byway.  Verizon’s tower is 70 feet taller and far more intrusive, related facts supporting denial are substantially the same.  Ms. Ruckelshaus stated that a recommendation by this Commission to approve this application would clearly conflict with its unanimous response to the Nextel proposition. 

Bill Clark, being duly sworn, testified he is a member of the Kent County Amateur Society Radio system and they support the tower applications.  The new tower would allow them to relocate one of their repeater systems.  He also is coming before the Commission as a citizen.  He stated he is employed by Verizon Communications on the wired side.  Mr. Clark stated that the tower is needed for load balancing.  He stated he is in favor of this application because Lambs Meadow Road is one of the evacuation routes out of Kent County in case of an emergency; the Kent County Sheriff’s Department uses Verizon Wireless as their carrier for their vehicle locating system which shows where the Deputies are anywhere in the County on 9-1-1 screens.  He said farmers in remote areas, on large tracts of land have the need to be able to call for help in case of an emergency or breakdown.  He stated repair technicians use lap top computers to access the internet for repairs and parts.  He said the only thing Kent County has to sell is a way of life.  He stated that if Kent County is to survive and preserve our history we all must compromise.  He said towers today will deliver the most cost effective means to deliver technology right now, not a year from now, right now.  With the price of oil and the costs that go with it everyone is going to have to change the way they do business.  Mr. Clark said the decision that is made regarding this application would have a direct economic impact on the County, present and prospective residents.  He said a tower is very much a part of Still Pond history.  He said if the tower becomes unnecessary it could be taken down.

Richard Miller, being duly sworn, testified his cell phone service in intermittent. He stated there is a tower in his back yard on Cooper’s Lane.  He said the owner of this tower would not allow Verizon to put antennas on it.  He does not feel this tower is intrusive to the landscape.  He said he