KENT COUNTY, MARYLAND
PLANNING AND ZONING

The Kent County Planning Commission met in regular session on Thursday, March 4, 2004, 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. Rubin Freeman; Jay Lancaster; G. Mitchell Mowell, Attorney; Gail Webb Owings, Planning Director; Carla Martin Community Planner; Amy Moredock, Environmental Planner; and Elizabeth Carroll, Secretary.

MINUTES - The Minutes of the February 5, 2004 meeting were approved after making several corrections.

APPLICATIONS FOR REVIEW

Peter & Katharine Svenson / Darren & Susan Leeman - Variances - The Svensons request variances from the rear property line to construct a 2667 square foot single family dwelling with attached garage and a 968 square foot in-ground pool. A Critical Area Buffer variance to construct the 2667 square foot single family dwelling with attached garage is also needed. The .977 acre parcel is located on Bayview Drive in Tolchester Estates, and is zoned "CAR" Critical Area Residential.

Darren Leeman, contract purchaser, was present and sworn in with staff by Chairman Morris. Also present was Mr. Leeman's attorney C. Daniel Saunders.

Ms. Moredock noted that in June 2002, the Planning Commission recommended denial of the applicants' application to build a single family dwelling within the buffer. In July 2002, the Board of Appeals denied the variance request.

Ms. Moredock reviewed applicable law found in Article V, Section 5 of the Land Use Ordinance which addresses required setbacks in the "CAR" District. A rear yard variance of 18 feet is needed for the dwelling and 15 feet for the in-ground pool. A buffer variance of 6 feet is needed to construct the house.

Article IX, Section 2.2 of the Land Use Ordinance sets forth the criteria for granting variances. Ms. Moredock pointed out the specific criteria that must be addressed with regards to variances of 15% slope, impervious surface and buffer variances, as well as a rear yard setback variance.

Ms. Moredock recommended denial of the buffer and rear yard setback variances until the results of a geo-tech study determines the stability of the bank and the safety of the proposal. She recommended that the dwelling be moved entirely outside the buffer since a rear yard setback variance is preferable because of the nature of the site. Reasonable use of the site is not denied the applicants due to safety concerns.

Staff as well as the Technical Advisory Committee is concerned with the safety due to the steep bank on this site. Information is needed as to whether the bank has been stabilized both for shoreline erosion and overland flow as suggested by the Boards in 2002. If the bank has not been stabilized, then a geo-tech study should be required.

If a study established overall stability of the shoreline and overland flow, staff would recommend approval of the rear yard setback variances for the dwelling and in-ground pool since a rear yard variance is preferred to a buffer variance. The bank must be stabilized.

Staff reviewed correspondence received on this application. Philip and Mary Griffith state they are not opposed to a nicely designed well constructed house on this property. They do however have concern about the closeness of the proposed house to the road in contrast to other homes on the street. The pool should be fenced. They are aware of an erosion problem close to their property and are concerned that any measures taken could negatively affect their lot.

A letter was received from James Perry and Dr. Craig Wakefield expressing their opposition to any construction within the 100-foot Critical Area Buffer and on a lot so narrow and close to a bank. The bank continues to erode even after stone riprap has been installed.

A letter was received from Ruth Ann Taylor, Nancy Kaufman and Samuel E. McSorley, Trustees of the Samuel L. McSorley Trust, expressing their objections to the proposal. The rear yard variance is unreasonable and would affect the value of their property. They are concerned about negative effect to the buffer and recommend the Board deny this application.

There has been no correspondence from the Critical Areas Commission.

Chairman Morris invited the applicants to comment. Attorney Saunders reviewed the site plan with the Planning Commission noting they feel their request is reasonable to allow construction of a dwelling 12 feet from the rear property line. A discussion ensued.

Mr. Leeman explained his reasoning for locating the house as proposed. He noted there is a very slight slope on the flat part of the property. He feels the correct protection during the building process will not negatively affect the bank. The house will be 46 feet from the top of the slope. They made adjustments as requested by the Technical Advisory Committee.

The Planning Commission reviewed photos taken by staff. A discussion ensued regarding the stability of the bank.

Chairman Morris invited the public to comment. Samuel E. McSorley, adjoining property owner of a family farm, noted that the road is privately owned by the McSorleys, but other properties do have use of roadway. The McSorelys maintain the road. It is his understanding of the Critical Area law, that there should be no activity within the 100 foot buffer, and he feels the variances should not be granted. Mr. McSorely also questioned the boundaries of the Svenson property.

In summarizing, Attorney Saunders, referenced the Comprehensive Plan which encourages building on existing lots rather than cutting up farms. This property is served by public water and sewer. Attorney referenced previous legal cases. He feels the proposed is a reasonable use of the property and the requested variances should be granted.

After a lengthy review and discussion, Mrs. Langenfelder made a motion to recommend the Board of Appeals deny the Leemans' request to construct a new dwelling on the Svenson .977 acre parcel, within the 100-foot Critical Area Buffer, based on the following findings:

The motion was seconded. The vote unanimous.

After further discussion, Rev. Freeman made a motion to forward a favorable recommendation to the Board of Appeals recommending the granting of a rear yard variance of 24 foot, based on the following:

The motion was seconded. Chairman Morris called for the vote. The vote was 2 - 2. Chairman Morris broke the tie by voting no to the motion, thereby the motion was defeated.

Mr. Sutton made a motion to forward an unfavorable recommendation to the Board of Appeals recommending denial of a rear yard variance of 24 foot. Should the Board of Appeals approve the variance, the Planning Commission recommended:

The motion was seconded. The motion carried by a majority vote.

Mr. Sutton made a motion to forward an unfavorable recommendation to the Board of Appeals recommending denial of a rear yard variance of 14 feet for an in-ground pool, citing:

The motion was second. The motion carried.

Al and Lynn Corle - Buffer Variance - The Corles request a variance to install a septic system within the 100-foot Critical Area Buffer. The .838-acre parcel is located on Kasota Road in Chesapeake Landing and is zoned "CAR" Critical Area Residential.

Lynn Corle and David Eason of D and D Construction were present and sworn in with staff by Chairman Morris.

Ms. Morelock reviewed the staff report noting applicable law and relevant issues. Article V, Section 5 established the minimum yard requirements and also addresses development in the buffer. Article IX, Section 2.2 allows the Board of Appeals to grant variances provided specific criteria is met.

Ms. Moredock noted the granting of the buffer variance will not cause a substantial detriment to the property nor will it change the character of the district. The Comprehensive Plan encourages providing land owners with septic systems information on the availability of new nitrogen removal systems.

All outstanding issues have been addressed and Ms. Moredock recommended approval, specifically:

The office has receive four letters from neighbors who support the buffer variance. A letter has been received from the Health Department supporting the placement of the septic system in the buffer.

Mr. Eason presented a copy of the house plans and site plan for review. The applicant met with surveyor Michael A. Scott and the Health Department to try to locate the septic system, well and house location. After looking at all options, it was felt this is the best location for the septic and therefore request a buffer variance. Mr. Eason noted it will be a one-time disturbance. The system is sealed and will have no impact on the environment. The house is under 2400 square feet. Mr. Eason presented photos of the property. The Planning Commission discussed the plan with Mrs. Corle and Mr. Eason.

The chairman asked for comments from the audience. Ed Birkmire, Environmental Health Department Officer, concurred that he has been working with the Corles and Mr. Eason and feel the plan is reasonable. The tank is a sealed unit and there will be no drainfields in the buffer. This will be a one-time disturbance.

Mrs. Corle told the Board that she wants to preserve the integrity of the land. They are doing whatever is necessary to prevent any erosion and protect the buffer. They intend to keep the property in the family.

After additional discussion, Mr. Lancaster made a motion to forward a favorable recommendation to the Board of Appeals recommending approval of a buffer variance to allow the Corles to construct a septic system within the 100-foot Critical Area Buffer, provided:

The Board made the following findings:

The motion was seconded and the vote unanimous.

#03-69 Robert B. Osborn et ux - Major Subdivision (1 Lot) - Mr. Osborn requests final approval for a major subdivision to create one 5-acre lot from his 14.43-acre parcel located on Massey Road in the First Election District. The property is zoned "AZD" Agricultural Zoning District.

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

Ms. Martin reviewed the staff report noting applicable law and relevant issues. This application was submitted in July 2003 but the septic reserve area could not be located until the wet weather testing season. Forest conservation has been addressed by the filing of a Declaration of Intent. A standard stormwater management plan has been submitted. With all county requirements met, Ms. Martin recommended final subdivision approval.

Chairman Morris invited Mr. Osborn to speak. Mr. Osborn noted the new parcel is for his daughter.

Edward L. Birkmire, Environmental Office at the Kent County Health Department commented on the soil type and noted the lot passed a percolation test.

There was no correspondence or further comments from the audience.

Mrs. Langenfelder made a motion to grant final subdivision approval for the creation of one 5.001 acre lot from the lands of Robert Osborn located on Massey-Sassafras Road. This proposal meets all the subdivision requirements. As the lot is for a family member, an Intra-Family Forest Declaration of Intent for Forest Conservation has been signed by Mr. Osborn. A standard stormwater management plan has been submitted and approved. The motion was seconded, and the vote unanimous.

ZONING TEXT AMENDMENTS - Mrs. Owings reviewed the staff report with the Planning Commission addressing each proposed amendment as follows:

Article V, Section 1.4. B-6. Commercial dog kennels, provided:

Amend:

After some discussion, Rev. Freeman made a motion to recommend the County Commissioners amend the Land Use Ordinance to include the amendment as presented. The motion was seconded, and the vote unanimous.

Article VI, Section 2. Signs 2.5 Crossroads Commercial, Commercial Critical Area, Industrial Critical Area, Industrial Critical Area - LDA, Employment Center and Marine.

Delete: "In no instance shall the total sign area exceed one half (½) square foot per linear foot of building frontage."

Add: 1. "On buildings with a building size less than 20,000 square feet", one flat sign per establishment limited to 5% of the facade fronting the road, not to exceed 25 square feet or one projecting sign per establishment limited in area to 10-square feet."

Add: "On Buildings that exceed 20,000 square feet in size, one flat sign per establishment limited to one-half (½) square foot per linear foot of building frontage, not to exceed 100-square feet, provided the sign uses colors approved by the Planning Commission and is illuminated with steady external lighting (if illuminated at all). The bonus sign area section does not apply to signs approved under this criterion."

Add: 8. "In no instance shall the total sign area on buildings less than 20,000 square feet exceed one half (½) square foot per linear foot of building frontage."

The Planning Commission reviewed each of the proposed amendment under the Sign Section of the Land Use Ordinance, after which Mrs. Langenfelder made a motion to recommend the County Commissioners amend the Ordinance as discussed. The motion was seconded and the vote unanimous.

Article VII, Section 7. Special Exceptions

Amend: 49. Retreat in AZD, RCD, RC, RR, CAR, CR and V Districts, changing the word "structures" to "buildings", specifically:

b. "In AZD, the retreat uses, buildings that existed prior to August 1, 1989. Buildings are limited to 50% expansion of the gross floor area of each individual building above that which existed as of August 1, 1989."

n. "The retreat shall be limited to 10 buildings." ...

o. "All structures shall comply with the minimum 100-foot buffer. Primary buildings shall be 100-feet from all property lines or comply with the minimum 100-foot buffer, whichever is greater. Accessory structures may be 5-feet from the rear or side property line."

s. "Application for a retreat shall include a sketch plan and renderings of all primary and each type of accessory buildings and structures."

The Planning Commission reviewed the proposed amendments that changes the word "structures" to "buildings" in Article VII, Section 7.49. of the Land Use Ordinance, and after some discussion Mr. Sutton made a motion to recommend the County Commissioners amend the regulations as stated. The motion was seconded and the vote unanimous.

Article VII, Section 7. Special Exceptions

Amend 16. Country Inn in AZD, RCD, RC, RR, CAR, CR and M

a. "Such structures have existed prior to August 1, 1989, except on properties with more than 25 acres in the Marine District."

After some discussion, Mr. Sutton made a motion to forward a favorable recommendation to the County Commissioners recommending they approve the amendment to Article VII, Section 7.16.a. of the Land Use Ordinance. The motion was seconded and the vote unanimous.

Article V, Section 13. Marine District

Add to 5. Density, Height, Width, Bulk and Fence Requirements

Minimum yard13.5 - Side "reduced setback if adjacent to M Marine"

-Rear "reduced setback if adjacent to M Marine"

Mr. Sutton made a motion to forward a favorable recommendation to the County Commissioners recommend they approve an amendment as stated to Article V, Section13.5 of the Land Use Ordinance. The motion was seconded and the vote unanimous.

Article VII Special Exceptions, Section 6. Procedures

Add 5. "Accessory structures in the front yard of a corner lot."

Mr. Sutton made a motion to forward a favorable recommendation to the County Commissioners recommending they approve the amendment to the Land Use Ordinance as stated. The motion was seconded and the vote unanimous.

STAFF REPORTS

Amy G. Moredock, Environmental Planner - Ms. Moredock informed the Board about the Water Resources Forum to be held Monday, March 29, 2004, 7:00 pm, at the Prince Theatre on High Street in Chestertown. Notices are being sent advising citizens of the forum.

Ms. Moredock advised staff should be hearing something soon about the Hazard Mitigation Grant Program.

The Upper Chester Water Restoration Action Strategy stream walk should be starting soon.

Carla A. Martin, Community Planner - Ms. Martin thanked the members that attended the Eastern Shore Land Conservancy meeting with the County Commissioners. Staff has requested the County Commissioners allow a budget line item for a local purchase of development rights program for matching the Federal Farmland Bill / Delmarva Conservation Corridor.

Gail Webb Owings, Planning Director - Mrs. Owings commented on the annual Spring Planning COG scheduled for Tuesday, March 30, 2004 at 7:00 pm, at the Hearse House on Calvert Street, behind the Kent County Public Library. Notices will be sent to all incorporated towns inviting their planning commissions and appeals boards to attend the joint meeting. The purpose of the meeting is to discuss coordination of planning efforts and project review as well as topics that may be of mutual interest. Attorney Mowell will speak on the Open Meetings Law. Mrs. Owings asked board members if they had any thing else they would like to discuss.

March 16, 7:00 pm, in County Commissioners Hearing Room, the Planning Commission and staff will meet to discuss procedure for review and format to follow for the review process and update of the County's Comprehensive Plan. Brief discussion followed.

ELECTION OF OFFICERS - In accordance with the Planning Commission Bylaws, each March the Commission holds election of officers. Mrs. Owings asked for nominations for chairman. Motion was made by Mrs. Langenfelder nominating Elizabeth Morris as chairman. The motion was seconded. The vote unanimous.

Motion was made by Mr. Lancaster nominating Bill Sutton as vice-chairman. The motion was seconded and the vote unanimous.

After some general discussion and there being no further business, Chairman Morris adjourned the meeting.

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Elizabeth E. Carroll, Secretary

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