KENT COUNTY, MARYLAND
PLANNING AND ZONING

The Kent County Planning Commission met in regular session on Thursday, November 6, 2003, in the County Commissioners Hearing Room at 400 High Street, Chestertown, Maryland, with the following members in attendance: Elizabeth Morris, Chairman; Bill Sutton; Patricia Langenfelder; Marcy Brown; Rev. Ruben Freeman; Jay Lancaster; F. Joseph Hickman; G. Mitchell Mowell, Attorney; Gail Owings, Planning Director; Carla Martin, Community Planner; Amy Moredock, Environmental Planner; Elizabeth Carroll, Secretary.

APPLICATIONS FOR REVIEW

#03-80 Barry C. Buckley - Buffer Variance - Mr. Buckley requests a variance of 50-foot to construct a 360 square foot addition within the 100-foot Critical Area Buffer. The 14.6 acre parcel is located on Lovely Lane and Piney Point in the head waters of Lovely Cove. The property is zoned "RCD".

Mr. Buckley was present and sworn in with staff by Chairman Morris.

Ms. Moredock reviewed the staff report noting applicable law and relevant issues. Ms. Moredock reviewed the criteria for granting a variance. She noted this variance would not cause a substantial detriment to neighboring properties, nor would it change the character of the district. The Comprehensive Plan encourages the maintenance of buffers. Staff feels that an addition to the existing dwelling does not constitute an unwarranted hardship nor does it deny the applicant uses generally shared by neighboring property owners. Ms. Moredock recommended denial of this variance request, however if the Planning Commission chooses to approve the application, then approval should be contingent on: 1) Mitigation of 3:1 for disturbance within the buffer should be required consisting of a mix of native trees and shrubs; and 2) Stormwater runoff from proposed structures should be directed to stable vegetation in the form of rain gardens / bio-retention areas.

John Wilson, Coordinator for the Maryland Eastern Shore RC & D Council, Inc., forwarded the Planning Office a copy of a letter that was sent to Mr. Buckley noting their concerns and recommending certain steps be taken to prevent any impact on the Critical Area Buffer.

Chairman Morris invited Mr. Buckley to present his comments. Mr. Buckley submitted a site plan for the Planning Commission to review, pointing out the unusual configuration of his parcel. Thinking in the future, Mr. Buckley advised the addition would provide additional space needed when he retires in Kent County. The proposed addition would accommodate any limitations he may experience rather than going into a nursing home. Mr. Buckley feels his variance request is reasonable. There are other properties in the area which are larger than his home. He met with Ed Birkmire at the site and was advised that the Health Department has no objection.

Mr. Buckley advised the house was built in 1946 as a seasonal structure. Although a larger addition is proposed, he is willing to amend his application, reducing the size of the addition. Mr. Buckley feels he does have a practical difficulty because his parcel is entirely within the Critical Area Buffer. There are also natural vegetation and trees to preserve.

There were no comments from the audience.

After some discussion, Ms. Brown made a motion to forward an unfavorable recommendation to the Board of Appeals, recommending the Board deny the Buckley variance request. After hearing testimony from the applicant and reviewing the law, the Planning Commission found the following:

However, should the Board of Appeals approve the Buckley variance, the Planning Commission suggests approval contingent on:

The motion was seconded. Chairman Morris called for the vote which was unanimous.

#03-103 James R. Guard - Variance - Mr. Guard is requesting a variance for a pier and six mooring pilings with an overall length of 170-feet. The property is located on Quaker Neck Landing Road and the Chester River in the Seventh Election District. The 1.4 acre parcel is zoned "CAR".

Mr. and Mrs. Guard were present and sworn in with staff by Chairman Morris.

Ms. Moredock reviewed the staff report noting that the Guards constructed a 170-foot pier this past summer and were cited with a citation and fined for failure to obtain county permits. The Guards now have a permit application on file for a 150-foot pier, but want to increase the pier to 170-foot provided the Board of Appeals approves their variance request. MDE approved a permit for 150-foot pier with six mooring piles but with a condition restricting construction from October 15 through March 31 because of the waterfowl concentration area.

Ms. Moredock noted applicable law found in Article V, Section 5 of the Land Use Ordinance. The additional 20 feet of length on the pier and the pilings effects the neighboring property owners' navigable access thereby causing a substantial detriment and changing the character of the neighborhood. An adjustment of lot lines must be completed. The extended property lines must be established to further determine if the pier meets setback requirements. The Comprehensive Plan is neutral on this issue. No unwarranted hardship appears to exist. Ms. Moredock recommended denial of the variance.

The Critical Areas Commission, via conversation with staff, advised if the Land Use Ordinance is upheld and any portion of the pier has to be removed, it should not occur during the waterfowl staging time.

Correspondence was received from Peter and Susan Gates expressing their concern and objection to the pier extension. It is felt the new pier poses a substantial detriment to their property and will change the character of the neighborhood. They are concerned about the placement of the down-river mooring pilings.

Mr. Guard advised he purchased the property in 1981 and in 1984 added additional land to his property giving him 170-foot waterfront. He owns an old 40-foot bay boat which has been kept on a mooring about 120-foot further from the pier. He obtained approval from MDE for 150-foot pier but did not know he needed county approval. Mr. Guard reviewed his site plan with the Planning Commission. He explained how the 20-foot extension occurred. He feels he does have a hardship. Discussion continued regarding the pier length.

After review and discussion, Ms. Brown made a motion to forward an unfavorable recommendation to the Board of Appeals recommending denial of Mr. Guard's 20-foot variance to construct a 170-foot pier with six mooring pilings. This decision is based on the following findings:

However, should the Board of Appeals decide to approve the variance, the Planning Commission recommends the down river mooring pilings be removed to achieve the required 100-foot distance between adjoining pilings. The motion was seconded and the vote unanimous.

#02-156 Robert Glen Morton - Major Subdivision - (Final Plat - one lot); #03-119 Road Waiver -

Mr. Hickman advised he knows the adjoining property owner and has some knowledge of this application, but he does feel it will impact any decision he may make on this application.

Surveyor Michael Scott was present and sworn in with staff. Mr. and Mrs. Morton were in the audience.

Mrs. Owings advised Mr. Morton is requesting final approval of his two-lot subdivision on Chesterville- Millington Road, in the First Election District, creating two 15-acre parcels. The property is zoned "AZD".

The Maryland Department of the Environment approved a wetlands delineation for this site. Preliminary approval was granted by the Planning Commission at the October 2003 meeting. Preliminary approval grandfathered the subdivision so that the final plat is reviewed under the old zoning and subdivision regulations. Mrs. Owings noted applicable law.

A letter has been received from Judy Tubman, an adjoining property owner, advising she and another neighbor plan to place their properties in a Maryland Environmental Trust. She requests the location of the house be delineated on the plat. A letter was also received from Engineer Peter Bourne addressing stormwater.

Jim Wright, County Engineer, informed staff that since this road can only serve two properties, County Roads does not wish to accept roads of this length. Mrs. Owings reviewed applicable law for private roads. Staff recommended approval of the road waiver. The waiver will not cause a substantial detriment

to neighboring properties. It is consistent with the Comprehensive Plan and the general intent of the zoning ordinance. The hardship is caused by the numerous non-tidal wetlands, streams and other natural features on the site as well as the decision by the County Engineer. A road maintenance agreement should be recorded with the final plat.

Stormwater management plans have been approved by Soil Conservation, and zoning regulations have been met, therefore staff recommends final subdivision approval.

Mr. Scott reviewed the plat with the Planning Commission. He noted the locations of the wet-weather testing sites approved by the Health Department. The new lots are for Mr. Morton's children. A road waiver is requested.

Chairman Morris asked for public comments. Mr. Christopher Kent, adjoining property owner to the south and east of the subject property. He is concerned about stormwater runoff. He is preserving his 224 acre farm in the Eastern Shore Land Conservancy and the Maryland Environmental Trust. Although he doe not support the subdivision, he would not object if the dwelling locations are delineated on the plat.

After some discussion between the Planning Commission and Attorney Mowell, the Board took a 10-minute break to allow Mr. Scott time to talk to his clients regarding the location of the dwelling sites on the plat.

Continuing with the meeting, Mr. Scott advised the Morton have agreed to the location of the houses and Mr. Scott drew the locations on the plat.

Ms. Brown made a motion to grant a waiver of the county road requirements to allow a private road in a major subdivision. This decision is based on the following findings:

1) This approval will reduce the number of entrances on Morgnec Road

2) The County Road Department does not wish to accept roads of this length.

3) This waiver will not cause a substantial detriment to neighboring properties.

4) It is consistent with the Comprehensive Plan and the general intent of the Land Use Ordinance.

5) The hardship is created by numerous non-tidal wetlands and streams and other natural features

on the site.

6) A road maintenance agreement must be approved by counsel and recorded with the final plat.

7) The plat should clearly indicate this is a private road and not the responsibility of the county.

The motion was seconded and the vote unanimous.

Ms. Brown made a motion to grant final approval for the Robert Morton Major Subdivision approving the creation of two 15-acre parcels. All county regulations have been met. The plat has been amended to show the two building envelopes. The road maintenance agreement will need to be recorded with the final plat. The motion was seconded and the vote unanimous.

#02-140 Millington Food Lion - Final Site Plan - Millington Food Lion requests final site plan approval for a one-story 28,657 square foot retail store on approximately six acres of th 228-acre farm owned by Albert Aaron. The property is located on Route 291 west of Millington. The property is zoned "C" Commercial and "RCD".

Vince Watkins of the Watkins Group, Dennis Bost, Bonduranti Associates; Dave Powers, McCrone, Inc.; and Gail Owings were sworn in by Chairman Morris.

Mrs. Owings reviewed the staff report noting the history of this proposal. At the June 5, 2003 meeting the Planning Commission reviewed the site plan and offered several comments. On September 4, 2003, the Planning Commission granted preliminary site plan approval with specific conditions.

Mrs. Owings noted relevant issues and reviewed applicable law. Mrs. Owings recommended final site plan approval provided parking, stormwater and sediment control plans are approved. The Planning Commission must make the following findings:

Chairman Morris asked the applicants about the parking agreement and signage. Attorney Mowell said he received a draft parking agreement which needs some minor changes.

Mr. Watkins presented minor changes to the front elevations that Food Lion has requested. They are requesting the sign changed from white to yellow. The awnings to be changed from green and yellow to white and yellow, and rather than fabric awnings they would like to have metal powder coated awnings. The other change would be to remove the false door because it might confuse customers. The final change request would be to remove the columns. Mr. Watkins noted these changes will not change the outline of the building. Discussion ensued regarding the proposed changes and other issues of concern.

Mr. Watkins advised construction will not begin until the county/town water town is under construction which probably will be late 2004. Approval is needed now to purchase the land. Mr. Mowell noted if final approval is granted and construction does not begin by November 2004, it will be necessary for the applicants to request a one-year extension.

A text amendment will be required to allow the sign proposed.

There were no public comments.

Ms. Brown made a motion to grant final site plan approval for the Millington Food Lion one-story 28,657 square foot retail store, contingent on specific conditions:

#03-08 John Stoltzfus/Dutch Family Corporation - Hotel Complex - Preliminary Site Plan - Mr. Stoltzfus is requesting preliminary site plan approval for a 40-room hotel, restaurant, and convenience store on his 7.559 acre parcel on River Road (Route 291) and MD Route 301. The property is located in the First Election District and is zoned "CCA" Commercial Critical Area.

John Stoltzfus, Kevin Shearon and Ms. Moredock were sworn in by Chairman Morris.

Mr. Stoltzfus has been working on this proposal review since 1993 with the Technical Advisory Committee reviewing the plan many times. At the April 2003 Planning Commission meeting, the Board made comments and suggestions after reviewing the concept plan. Ms. Moredock read the list of comments.

Ms. Moredock reviewed the staff report noting applicable law and relevant issues. She read the criteria for site plan review found in the Land Use Ordinance. Staff recommended approval contingent upon the Planning Commission's approval of the buildings' compatibility with historic and cultural design with the county, specifically color, building materials, rear and side elevations.

No new correspondence has been received in the office.

Mr. Shearon reviewed the site plan showing the changes to the plat and addressed issues expressed by the Planning Commission at the April 2003 meeting. Parking has been moved. Afforestation is on the south side of the property with the stormwater management / bio-retention area. Handicap spaces and have been added and so indicated. The buildings will be connected with a 10-foot breezeway.

Mr. Shearon advised public sewer has been extended to the east side of Route 301. Mr. Shearon submitted sewer and water allocation figures to Wayne Morris, Director of Water and Waste Water, who in turn has met with the County Commissioners for their approval. Mr. Shearon said he was told the Commissioners will approve allocation for the project once the system comes on line.

Mr. Shearon further noted parking for any tractor trailers will be moved away from the residential area on the north side closer to the overpass. More evergreens are proposed to provide a deeper buffer rather than building a berm. The bio-retention area will be divided by a significant ditch. Discussion continued.

Staff noted the project will bring about a reduction of impervious surface on the site. Forest requirement as proposed are in compliance. Ms. Moredock noted lighting still needs to be addressed. Signage must also be addressed. A complete set of elevations are required for preliminary approval.

Mr. Stoltzfus said he would like to begin construction early 2004. Mr. Shearon feels they should be able to obtain a building permit but that no occupancy permit can be issued until either a well is drilled to provide water or hookup to the public system. Wayne Morris of the Department of Water and Waste Water has informed the developer that allocation will be available and has requested the County Commissioners to approve the allocation. Additional discussion ensued regarding the water and sewer capacity. Ed Birkmire, Director of the Environmental Office at the Kent County Health Department was asked to comment. He advised the Health Department is required to review allocation figures. From what he has seen it appears the figures are low. Mr. Birkmire pointed out, it is the Health Department who determines the needed allocation for buildings. Figures are not needed for preliminary plan review but it is a requirement for final approval.

The Planning Commission discussed the outstanding issues and questioned if they could grant preliminary approval. Mr. Stoltzfus told the Board he wants to move ahead with his project. He feels the allocations will be available.

Chairman Morris invited the public to comment. John Kowalski, River Road resident, submitted seven photos of the Stoltzfus property and his written comments. Mr. Kowalski is concerned about fire safety and overgrown evergreens. He is concerned about increased trucks and tanker parking and hazards trucks can create. Mr. Kowalski feels the site plan has too many flaws which must be corrected for the safety of the public and local neighbors. He requested the Board deny the site plan as proposed.

William Zier, resident of River Road (behind the Dutch Deli), has concerns regarding stormwater drainage and how it flows to his property. Dust and dirt from the Stoltzfus property is also a problem. Current lighting from Dutch Family Dwelling shines directly into his home

Summarizing discussion, Chairman Morris advised Mr. Stoltzfus he needs to: address signage; lighting; allocation of water and sewer; elevations for rear of buildings; and work with his neighbors regarding their concerns. After more discussion, Mr. Stoltzfus asked to table his proposal allowing him time to address the outstanding issues. He plans to come back before the Planning Commission at the December 4 meeting.

STAFF REPORTS

Gail Webb Owings, Planning Director - Mrs. Owings advised the office has issued numerous permits some of which were because of Hurricane Isabel. Mrs. Owings reminded the Board of the meeting at Chesapeake College. Staff is currently working on zoning violations in Election District Six as instructed by the County Commissioners.

There being no further business, Chairman Morris adjourned the meeting at 5:15 p.m.

___________________________________

Elizabeth H. Morris, Chairman

___________________________________

Elizabeth Carroll, Secretary

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