KENT COUNTY, MARYLAND
PLANNING AND ZONING

The Kent County Planning Commission met in regular session on Thursday, September 2, 2004, at 1:30 PM, in the County Commissioners Hearing Room at 400 High Street with the following members in attendance: Elizabeth H. Morris, Chairman; William S. Sutton, Vice Chairman; Patricia Langenfelder; Marcy Brown; Rev. Ruben Freeman; Jay Lancaster; F. Joseph Hickman; G. Mitchell Mowell, Attorney; Gail Webb Owings, Planning Director; Carla A. Martin, Community Planner; Amy Moredock, Environmental Planner; and Elizabeth Carroll, Secretary.

MINUTES  - The Minutes of the August 5, 2004 meeting were approved as written.

APPLICATIONS FOR REVIEW

#04-96 Frederick Ford, et ux - Variance - Mr. Ford is requesting a side yard setback variance of 10-feet for the relocation of existing mooring pilings with an overall length of 130-feet.  The 0.26 acre parcel is located on the Sassafras River & Sassafras Avenue, Gregg Neck, in the First Election District.  The property is zoned ACAR@ Critical Area Residential.

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

Ms. Moredock reviewed the staff report advising a variance was granted to a previous owner to build a 96 by 5 foot pier with a floating dock located on the western property line.  The variance was granted to place a 96 foot pier with floating dock 9 feet from western property line and 25 feet from eastern property line and to place three tie-out pilings 20 feet from the dock and 5 feet from the eastern property line.

Ms. Moredock referred to applicable law found in Article V, Section 5 of the Land Use Ordinance. She pointed out that a mooring piling currently sits on the western property line.  The applicant proposes to relocate that piling 5-feet from the west property line which would require a 10-foot setback variance.  The mooring piling located along the east property line currently does not meet the setback requirement and requires a 10-foot setback variance.

Ms. Moredock reviewed Article VI, Section 3 of the Ordinance which addresses piers.  It was noted the mooring pilings extend 130 feet into the waterway which is only 13% of the width of the waterway, however the pilings encroach on existing property lines thereby encroaching upon navigation of neighboring property owners. 

Article IX, Section 2.2 of the Ordinance sets forth criteria for granting a variance.  Staff feels the granting of the variances may cause a substantial detriment to adjacent or neighboring property owners, however it will not change the character of the district.  Relocation of an existing piling off the western property may still impede navigation.  The piling located 5-feet from the eastern property line may also impede neighboring navigation.  Staff feels the practical difficulty is caused by the applicant=s own actions and therefore recommended denial of the variances.

Chairman Morris invited Mr. Ford to speak.  Mr. Ford noted there were five pilings when he purchased the property which he thought were permitted.  He was not aware pilings extended over his extended property line.  Mr. Ford reviewed his site plan with the Planning Commission commenting further on his situation.  Discussion ensued.

The public was invited to comment on this proposal.  Michael Baurley, an adjoining property owner, was sworn in by the chairman.  Mr. Baurley advised he supports the variance request.  He has an old original plat showing the lots to be 100 feet wide.  He feels this is unique because no other lots in Gregg Neck are this size. He does not feel there is any hardship to navigation. 

Mr. Leonard LaBattaglia, an adjoining property owner, and his attorney Dean Burt, were present and sworn in.  Mr. LaBattaglia expressed his objections to the granting of a variance for Mr. Ford.   Mr. LaBattaglia shared photos of the site.  In 1984 this property was subject to a variance when owned by Walter Nauta.  Mr. LaBattaglia continued with his comments assuring the Board the piling is still on his property extended and is opposed any new variance being granted. 

Following a lengthy discussion, Ms. Brown made a motion to forward an unfavorable recommendation to the Board of Appeals recommending the Board deny the relocation of the mooring piling on the west property line. This recommendation is based on the following: 

S                     There will be a substantial detriment to navigation of the waterway on the neighboring western side property and the piling will change the character of the neighborhood.

S                     The Comprehensive Plan is neutral

S                     The practical difficulty is not caused by the condition of the property

S                     The need for a variance is caused by the applicant=s own actions

S                     The granting of a variance is not in harmony with the general spirit and intent of the Critical Areas Law and Kent County regulations.

The motion was seconded and the vote unanimous.

Ms. Brown then made a motion to forward a favorable recommendation to the Board of Appeals recommending approval of a variance for the mooring pilings in existence on the eastern property line.  This decision is based on the following findings of fact:

S                     There will not be a substantial detriment to the neighboring properties on the east side of the property since there are currently three pilings located 5-feet from the east side property line by right and the piling will not change the character of the neighborhood.

S                     The Comprehensive Plan is neutral

S                     The practical difficulty is not caused by the condition of the property

S                     A boat can be docked parallel to the pier thereby keeping a boat in front of the property and out of neighboring waterway.

S                     The granting of a variance is in harmony with the general spirit and intent of the Critical Area Law and Kent County regulations. 

The motion was seconded, and the motion carried by a majority vote.

The Planning Commission noted if the Board of Appeals should grant the variances, permits will be necessary to relocate any pilings.

#04-93 William & Arlene Kraft (Buffer Variance)  - Mr. and Mrs. Kraft are requesting a variance to construct an 832-square foot addition to their existing dwelling within the 100-foot Critical Area buffer.  The 0.23 acre parcel is located on Hillmont Drive & Herringtown Creek, in the Fifth Election District.  The property is zoned ACAR@ Critical Area Residential. 

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

Ms. Moredock reviewed the staff report noting applicable law and relevant issues.  A side yard setback variance of 7-feet is needed and a buffer variance is needed for the proposed addition.  Staff feels the granting of a variance would not be a detriment to neighboring properties nor change the character of the district.  The buffer encompasses the entire parcel so a variance is needed to do anything on the property.  Staff recommended denial of the side yard setback variance since there is room on the site for construction without needing a side yard variance, however Ms. Moredock recommended approval of a buffer variance. 

Mr. Kraft noted he has letters from Patricia Brown and Walter Simmons supporting his proposal.  Mr. Kraft submitted photos of his property before and after the Hurricane Isabel.  Mrs. Kraft advised they had 2-foot of water inside their home.  Chesapeake Architects told the Krafts the house should be demolished.  Architect Urs Heifelker met with the Krafts to discussion options.  The Krafts feel they have a hardship because of the storm. 

Mrs. Owings explained floodplain requirements.  Discussion ensued.  Attorney Mowell suggested tabling the application as submitted and work with the planning staff to discussion options.  After further discussion, Mr. and Mrs. Kraft informed the Planning Commission that he wished to table their variance application as submitted.  They will meet with the staff to discuss possible options. 

#04-83 Jeff Davis / Tyrone Jones - Buffer Variance  - The applicants are requesting variances to construct a driveway and install water and sewer lines within the 100-foot Stream Protection Corridor and within the 25-foot non-tidal wetlands buffer.  The property is located on the Fairlee-Melitota Road (Route 298) in Fairlee, Sixth Election District.

Mr. Davis was present and sworn in with staff. 

Ms. Moredock reviewed the staff report noting applicable law and relevant issues.

Mr. Davis advised he wishes to construct a 1000 square foot dwelling on this property.  He advised State Highway has given it=s okay for an entrance onto Route 298.  He has contacted people using the existing private road and found that three out of the five property owners using the driveway are opposed to Mr. Davis using the right-of-way.  Mr. Davis feels the driveway he proposes will not be a detriment to the other properties in the area.  A discussion ensued regarding the environmental sensitivity of the parcel and whether or not development should be allowed.

Chairman Morris asked for public comments.  Mr. Jack Bigelow of Fairlee Road expressed his concerns and objections to the buffer variance.  Mr. Bigelow showed a video showing the property from Route 298 and the right-of-way.  He again noted his opposition to the granting of a buffer variance.

In response to Mr. Bigelow=s comments, Mr. Davis said since there are objections to a new road being created, why not allow him to use the existing road.  Mr. Davis noted he too is concerned about the environment and does not want to do anything detrimental to the site.  Discussion continued. 

After a lengthy review and discussion, Ms. Brown made a motion to forward a favorable recommendation to the Board of Appeals recommending approval of two variances to allow construction of  a driveway and water and sewer lines within the 100 foot Stream Protection Corridor and within 25 feet of a non-tidal wetlands buffer, conditioned upon the following:

S                     Mitigation of disturbance in both buffers should take place at a ratio of 3:1;

S                     Stormwater should be directed to stabilize vegetation; and

S                     A Buffer Management Plan should be completed.

This recommendation is based on the following:

S                     The granting of a variance would not change the character of the neighborhood, nor would the variance cause a substantial detriment to neighboring properties.

S                     The Comprehensive Plan is neutral in this issue.

S                     The entire frontage of the property is located within either the stream protection corridor or the 25 foot non-tidal buffer, thereby create a practical difficulty.

S                     The granting of the variance is in harmony with the general spirit and intent of the Critical Areas Law and Kent County regulations.

Chairman Morris called for a vote.  The motion carried by a majority vote. 

#04-17 Reeds Meadow - Major Subdivision (Preliminary Plat - 21 lots)  - Churn Creek Land Associates is requesting preliminary review for a 21 lot subdivision.  The 10.7 acre parcel is located on Smithville Road in the Third Election District, and is zoned AV= Village.

Mike Scott of Michael A. Scott Surveying was present on behalf of his client Dudley Reed.  Mr. Scott was sworn in with staff by Chairman Morris.

Ms. Martin reviewed the staff report noting applicable law and addressing relevant issues.  Ms. Martin recommended preliminary subdivision approval, contingent on the following conditions: 

S                     Additional landscaping to screen Lots 23-26 from adjacent properties.

S                     Submission of a copy of the letter stating that no wetlands are present on the property.

S                     Location of any non-tidal wetlands buffers that extend onto the subject property from adjacent properties.

S                     Prior to final approval, the applicants need to submit deed restrictions, final forest conservation plan, open space fee, water and sewer allocation fees, and letters-of-credit. 

Chairman Morris invited Mr. Scott to comment.  Mr. Scott advised staff=s issues are being addressed. Miles Barnard is working on Forest Conservation delineation.  Buffers will be indicated on plat.

There were no public comments. 

After a brief review, Ms. Brown made a motion to grant preliminary approval of the Reeds Meadow major subdivision, provided the following is addressed: 

S                     Additional landscaping to screen Lots 23-26 from adjacent properties.

S                     Submission of deed restrictions which include provisions for use and ownership of Lot 1.

S                     Location of any non-tidal wetlands buffers that extend onto the subject property

S                     from adjacent properties.

S                     Submission of final plans and letters-of-credit for forest conservation, stormwater

S                     management, road improvements and other utilities.

S                     Submission of open space, and water and sewer allocation fees.

The motion was seconded and the vote unanimous.

Before receiving final plat approval, these conditions must be met as well as any remaining requirements of the Land Use Ordinance.

STAFF REPORTS 

Gail W. Owings, Planning Director  - Mrs. Owings gave the Planning Commission an update on pending projects.  She made the Board aware of the Eastern Shore Land Conservancy conference on November 6, 2004.

Carla A. Martin, Community Planner  - Ms. Martin noted the Land Use Ordinance has been updated and gave Planning Commission members copies of the changes to insert in their ordinances.

Amy G. Moredock, Environmental Planner  - Ms. Moredock commented on the Sassafras River Watershed meeting at the Granary.  She also noted she is working on the County=s Hazard Mitigation plan.

There being no further business, Chairman Morris adjourned the regular monthly meeting. ____________________________________ 

Elizabeth H. Morris, Chairman

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Elizabeth E. Carroll, Secretary