KENT COUNTY, MARYLAND
PLANNING AND ZONING

The Kent County Planning Commission met in regular session on Thursday, January 5, 2006, at 1:30 pm 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; Marjorie Brown; Rev. Ruben Freeman; Jay P. Lancaster; F. Joseph Hickman; G. Mitchell Mowell, Attorney; Gail Webb Owings, Planning Director; Carla A. Martin, Community Planner; Amy G. Moredock, Environmental Planner; and Elizabeth Carroll, Secretary.

MINUTES - The Minutes of the December 1, 2005 meeting were approved after making several corrections. The Minutes of the December 8, 2005 public hearing on the draft Comprehensive Plan were approved as written.

APPLICATIONS FOR REVIEW

#05-53 Ashley Pines Major Subdivision -12 lots (Final) - Sam Owings and David Moss of Piney Neck Partners, are requesting final approval for their 12-lot subdivision located between Ashley Road and Piney Neck Road, in the Fifth Election District. The 12.226-acre parcel is zoned “CR” Community Residential.

Present and sworn in by Chairman Morris were: Sam Owings, David Moss, Surveyor Tom Davis, and Carla Martin, Community Planner.

Ms. Martin reviewed the staff report noting:

• July 7, 2005 the Planning Commission reviewed a concept plan and on August 4, 2005 the Board reviewed a revised concept plan.
• October 6, 2005, the Planning Commission granted preliminary approval with conditions, specifically:

  -- The locations of the driveways for Lots 8-12 must be shown on the plat. A note on the plat is inadequate.

  -- The language concerning the rights of watermen must be approved by the Planning Commission attorney.

  -- Stormwater runoff must be handled on-site.

  -- There must be a minimal impact to any existing trees. The Board recommended meeting with Teri Batchelor to determine which trees should remain.

Ms. Martin reviewed staff requirements and noted also noted:

• Joe Blizzard, Soil Conservation Service has advised stormwater management calculations have been submitted and approved. A maintenance agreement for the stormwater needs to be prepared and recorded before Mr. Blizzard will give final approval.
• Deed restrictions have been submitted and approved pending the addition of a signature line for the Planning Commission attorney.
• Letters-of-Credit were being reviewed by the bank this morning.

Staff recommends approval pending:

• Recordation of maintenance agreement for stormwater management, and
• Submission of the Letters-of-Credit for afforestation, landscaping, sewer improvements, and sediment and erosion control.

Mr. Owings submitted commitment letter from his bank for the required Letters-of-Credit. Ms. Martin advised the Letters-of-Credit will be forwarded to the County Commissioners for their approval.

Mr. Davis reviewed the final plat noting the location of the driveways which may be moved slightly depending on County Roads requirements. With some concern expressed by the Planning Commission, Mr. Davis agreed to remove the statement that entrances may be moved, from the plat.

Mr. Davis referred to the forest retention area in the middle of the site. Plantings in remaining open space are identified. Stormwater management is addressed by environmentally sensitive design with planting in these areas. The applicants met with Forester Teri Batchelor on the site and they are complying with her requests. Mr. Davis noted the plans are designed to handle drainage. The applicants showed the Planning Commission plans for improving the ditches. Discussion followed.

In summary, Mr. Davis asked the Planning Commission to grant final subdivision approval since the developers have complied with all subdivision requirements.

Chairman asked for public comments. There were no comments from the audience and no correspondence has been received regarding the proposed subdivision.

After some discussion, Ms. Brown made a motion to grant final approval for the Ashley Pines 12-Lot major subdivision, located between Piney Neck Road and Ashley Road in the Fifth Election District, conditioned upon:

• Stormwater management approval.
• Letters-of-Credit are accepted by the County Commissions (afforestation, landscaping, sewer improvements; sediment and erosion control.)
• Add block on deed restrictions for Planning Commission Attorney’s signature

This approval is based on the following findings:

• All the lots meet the minimum bulk requirements
• The location of the driveway for Lot 8 has been moved away from the curve
• The lots meet the required 45 foot front yard setback as shown on the plat
• The subdivision complies with the requirements of the Land Use Ordinance

The motion was seconded. The vote was unanimous.

#05-155 William & Wendy Schickler – Variance - The Schicklers are requesting variances to construct a concrete brick patio within the 100 foot Critical Area Buffer, 40 feet from mean high tide. The 0.4 acre parcel is located on Belchester Road in the Third Election District. The property is zoned “CAR” Critical Area Residential and is within a Buffer Modified Area.

Wendy Schickler, Bill Schickler and their attorney C. Daniel Saunders were present and sworn in with staff by Chairman Morris.

Ms. Moredock noted the Schicklers applied for the same variance in July 2004 and withdrew the application in September 2004. The variance was reviewed by the Technical Advisory Committee and the Critical Area Commission in August 2004.

Ms. Moredock reviewed relevant issues and applicable law found in Article V, Section 2 of the Land Use Ordinance which addresses the requirements for the CAR zoning district. Article IX, Section 2 sets forth the requirements for granting a buffer variance.

The Comprehensive Plan encourages the maintenance of buffers. The variance will not cause a substantial detriment to neighboring properties, nor will it change the character of the district. Denial of the variance would not constitute an unwarranted hardship and would not deny the applicants uses generally shared by neighboring property owners.

The property is located within the Modified Buffer Area. The concrete patio was placed closer to mean high tide than the existing dwelling footprint prior to obtaining a variance. The applicants have other areas on the property where they can construct a patio outside the modified buffer.

Ms. Moredock recommended denial of the variance as requested. Should the Board be inclined to recommend approval, staff recommends mitigation at a rate of 3:1 for 350 square feet of buffer disturbance with Maryland native plantings.

Attorney Saunders referred to the site plans showing “before” and “after” which indicates the sidewalk and impervious areas. Michael Scott Surveying calculated the impervious areas to indicate the potential impact “before” and “after.” The “after” site plan shows impervious surface removed. The patio in question is clearly shown. The area that is shaded is the portion of the patio which would have been permitted under a building permit. The expansion of the patio is within the Buffer Modified Area. A building permit was never obtained by the owners. The Planning Commission reviewed the plat with the applicants and continued the discussion about the Modified Buffer.

Mrs. Schickler advised they did obtain a building permit to raise the roof and believed the work on the ground would stay within the perimeters of the existing impervious surface in the buffer and a permit was not needed for that work.

Attorney Saunders noted the previous impervious surface was 1,767 square feet in the buffer. The new impervious surface is 1,840 square feet, providing a net increase of 73 square feet which includes everything in the buffer. He recommended approval of the variance because he feels this is a reasonable request and will not significantly impact the property.

There were no comments from the audience.

Following a lengthy discussion, Ms. Brown made a motion to forward an unfavorable recommendation to the Board of Appeals, recommending denial of the Schickler’s request for a buffer variance for a 350 square foot concrete patio in the Critical Area Buffer, 40 feet from mean high tide. The Commission’s decision is based on the following findings:

• The dwelling was constructed prior to 1988
• Much of the existing dwelling is located within the Critical Area Buffer
• It has not been determined whether the applicant exhausted all opportunities for expansion/ patio location outside the buffer
• The patio is located closer to mean high tide than the existing dwelling footprint, therefore, does not meet the Buffer Modified Area criteria
• While the patio may not change the character of the neighborhood, but it may constitute a substantial detriment and it may establish a precedent within the neighborhood
• Approval may confer special privileges upon the applicant
• The size and shape of the property is not unusual
• The patio may adversely impact water quality
• No unwarranted hardship exists.

Should the Board of Appeals be inclined to approve the variance, buffer mitigation should take place at a ratio of 3:1 and should consist of Maryland Native plantings.

The motion was seconded and the vote unanimous.

#05-156 Madelyn G. Reni / Spring Cove Marina – Variance – Spring Cove Marina requested a variance to extend an existing pier beyond 25% of the waterway. Madelyn Reni wishes to construct a 388 foot addition which includes 20 finger piers and 60 mooring piles to the outer most pier. The pier and mooring pilings will not extend beyond 400 feet channelward of mean high tide and will include 39 additional slips. The full-service marina is located on Spring Cove Road and the Haven in the Fifth Election District

Those present and sworn in by Chairman Morris were: Madelyn Reni; Dick Luttrell, Consultant for the applicant; and Attorney Dan Saunders.

Mrs. Owings reviewed the staff report noting the history of the property. In February 1984, the Board of Appeals granted a special exception to allow construction of a pier beyond 25% of the waterway, contingent on:

• The pier was constructed as shown on the plan
• All permits were obtained
• The area of deepest water off the pier is clearly marked by the applicants.

In January 1985 the Planning Commission approved the original site plan for 68 slips.

At the July 1985 meeting, the Planning Commission recommended denial of a special exception to expand the marina feeling the enlargement of the marina beyond 25% of the waterway would deny public access to the waterway and adversely affect neighboring properties.

The Board of Appeals, after several hearings denied the application in December 1985, concluding the applicants were not being unreasonably deprived of the use of their property. The decision was appealed to the Circuit Court and remanded back to the Board of Appeals. The Board of Appeals again denied the special exception in April 1987.

In January 1986, the Planning Commission approved an expansion to add a pier extension with 56 new slips within the 25% limit.

In December 1990, the Planning Commission granted final site plan approval for a second pier within the 25% limit, increasing the number of slips from 124 to 160, with conditions.

In October 1999, the Planning Commission considered a variance to construct a 525 foot pier extension to the outermost pier, adding 58 slips. The Planning Commission recommended denial, based on their findings.

In December 1999, the Board of Appeals granted a variance for the 525 foot pier extension subject to conditions, one of which was the variance would lapse in one year if no substantial construction had occurred.

Spring Cove Marina proceeded to obtain the required state and federal permits.

In December 2001, the Board of Appeals denied a request for a 24 month extension of the variance previously approved while the applicants were working on their permits from the state.

Mrs. Owings reviewed the applicable law found in Article V, Section 13 of the Kent County Land Use Ordinance. Article IX, Section 2.3 of the Ordinance sets forth the criteria for granting a variance.

Provided the shortened pier does not impede navigation to and from the public landing, the addition of 39 slips should not change the character of the neighborhood nor cause a substantial detriment to adjacent or neighboring properties. The Comprehensive Plan is supportive of a marine industry. The Board of Appeals in 1999 found the shape of the property with limited access to the creek causes a practical difficulty because there is very limited area available for marine development on property zoned for a marina. Mrs. Owings noted conditions have not changed since 1999 with the exception that the pier has been shortened to avoid encroachment into the channel to Spring Cove Public Landing. Staff recommended approval provided the pier does not encroach into the public landing and that is confirmed by the Public Landing Board.

No correspondence has been received with regards to this proposal.

Attorney Saunders advised Madelyn Reni has gone through a very lengthy process in an effort to obtain the necessary permits. State permits for pier construction are in place. Those agencies have determined that Mrs. Reni’s proposal will not have an adverse impact on navigation. A dredging permit has been obtained from the Army Corps of Engineers and the Maryland Department of the Environment, which ties in with the county public landing area. Attorney Saunders presented photos of the area pointing out the various sites. Discussion ensued between the applicant and the Planning Commission.

Dick Luttrell did a study showing the average encroachment of the major marinas in the county is over 40% of the width of the waterway. This is consistent with what Mrs. Reni is requesting. Attorney Saunders pointed out that when the marina was designed, it was designed to be built in stages with this being the final design.

Mr. Luttrell noted that dredging by previous surveys was not necessary in this area. After several bad storms, there was a lot of silt that came down the creek and filled in the area. He pointed out the spoils sites on the map.

Chairman Morris asked for public comments. Christian Wurst, Walnut Landing Road, was sworn in and asked to see a photo of the area. He pointed out his home and noted that the expansion of the marina will block the view of the water from his property. Mr. Wurst feels the expansion will create more traffic. The bed and breakfast on another property has also created more traffic. Adding 39 more slips with 39 more vehicles will certainly have a negative impact on the environment. He is also concerned about decreased property values.

Attorney Saunders read a letter from James Gorman, an adjoining property owner, which states he has no objection to the proposed marina expansion.

Attorney Saunders summarized by saying that the standard in a pier length variance is “practical difficulty” rather than “hardship.” A practical difficulty has been demonstrated by the configuration of the land, shoals immediately adjacent, and the intensive SAV beds nearby. He feels this is an appropriate case for a variance and asked for the Planning Commission’s support.

The Planning Commission members commented on the proposal and after some additional discussion, Mr. Hickman made a motion to forward a favorable recommendation to the Board of Appeals, recommending approval of the variance request of Madelyn Reni to allow a 388 foot addition to the outermost pier at Spring Cove Marina, provided the proposed pier addition will not encroach upon the channel to the Spring Cove Public Landing. The Commission feels that a variance should be granted to construct a 388 foot linear pier, with 60 mooring piles and 20 finger piers for a total of 39 additional slips. This decision is based on the following:

• The pier will not extend more than 420 feet channelward of mean high tide or 41% of the waterway
• The property is and has been zoned “M” Marine
• Spring Cove Marina is not a full service marina and offers docking only
• The addition completes the marina plan which began in 1984
• Additional expansion is not proposed after construction of this addition
• The additional length of the pier will not cause a substantial detriment to adjacent or neighboring properties
• The proposal will not change the neighborhood
• State and Federal permits have been obtained
• The Comprehensive Plan supports the marine industry
• The shape of the property with limited access to the creek creates a practical difficulty because there is little area available for marina development
• The practical difficulty is not caused by the applicant’s own actions.

The motion was seconded. The vote was unanimous.

#05-87 Laura Lynn Williams – Zoning Map Amendment - Mrs. Williams is requesting approval of a zoning map amendment to change the zoning on her two parcels on Green Lane and Newt Downey Road near Rock Hall, from “M” Marine to “IVCA” Intense Village Critical Area. The first property, shown on Map 50, Parcel 45, is 6.55 acres, fronts on Rock Hall Harbor and is adjacent to the Green Lane Public Landing. It is currently a field and has been used for limited boat storage. The second property, shown on Map 50, Parcel 75, is adjacent to the first parcel on Green Lane and is approximately 2 acres in size with a two-story single family dwelling on the site. Both properties are in the Spring Cove/Green Lane sewer service area.

Present and sworn in by Chairman Morris were: Laura Lynn Williams; Bruce Galloway, Planning Consultant; Dan Saunders, Counsel; Bob Greenlee, President of The Greenlee Group, Inc., and David Williams.

Commission member Joe Hickman said he knows Mr. Greenlee but that will in no way influence his decision.

Mrs. Owings advised that during the review of the 2002 Land Use Ordinance, the properties were zoned Marine. Under the 1989 Zoning Ordinance the properties were zoned Limited Marine, which is similar to the current Marine Zoning. During the 2002 Comprehensive Rezoning process, the Williams requested Intensive Village Critical Area zoning for the properties, however the County Commissioners at that time felt the Marine District was the most appropriate zoning for these properties.

Ms. Owings noted excerpts from the Kent County Comprehensive Plan and the Rock Hall Comprehensive Plan. Applicable law is found in Article XII, Section 6 of the Land Use Ordinance. This text establishes the procedure for reviewing and approving a text amendment.

Mrs. Owings recommended denial of the proposed map amendment, based on the following:

• Staff does not see a public need for the amendment
• Staff believe the proposal is consistent with neither the County or Town Plan. The Town Plan is explicit in its desire to keep the waterfront open or used with water-dependent businesses.
• Much of the property is in the floodplain which does not prohibit residential uses but structures must be elevated. Portions of the property were used as dredge spoil but the geotechnical investigation conducted by Hills-Carnes Engineering Associates found the construction of residential structures with shallow foundations is feasible.
• The character of the neighborhood since the last rezoning in 2002 has not changed
• A mistake in the zoning did not occur. Actually, a similar request was considered and rejected.

Mrs. Owings noted correspondence received regarding this application. She read a letter from Robert and Suzanne Stetson who are opposed to the proposed zoning change. A letter was also received from the Critical Areas Commission in which they say they have no comment since it is their understanding that the critical area designation will not be affected by the proposal.

Chairman Morris invited the applicants to comment. Attorney Saunders feels it was a mistake to zone these properties for marine use. Mr. Saunders referred to the packet provided by the applicant noting the aerial photo of the area as well as the tax map and plat that shows the old Grandview Subdivision.

Attorney Saunders advised he has a ruling from the Health Department which states that these properties do not qualify for percolation but can be served by public water and sewer. Mr. Saunders referred to an agreement in 1992 between the Department of Water and Waste Water and the Town of Rock Hall, which states “the Commission shall discharge only residential waste of the same strength as that in normal domestic sewers into the town system.” The Green Lane line is restricted to residential use only.

Attorney Saunders said the applicants have explored several marine activities and have been unable to engage in any marine activity. Because of the shoals and SAVs in front of the property there is no way to construct a meaningful marina on this site.

Attorney Saunders feels the facts he has presented were not taken into consideration at the time of the comprehensive rezoning and therefore a mistake was made in the zoning and multi-family residential is the appropriate zoning for the properties. It has IDA classification and would not require growth allocation.

Bruce Galloway stated the property itself limits the uses listed in the ordinance for marine zoning. He noted there has been residential zoning on this property in the past. In 1990 a boat storage facility was placed on the property. In 1992 a request was made for a boat ramp but it was turned down because it would cause additional congestion. In 1994 public sewer was brought to Green Lane, but service was restricted to residential only. In 2002 the owners requested rezoning under the Comprehensive Rezoning to residential. The County wants to focus development in and around the town and this property is close to the town and a good candidate for a different set of uses. The properties are surrounded by residential zoning. He expanded further on his reasoning for rezoning.

David Williams, who shares ownership of the subject property, advised this land has been in the Williams Family for over 100 years. The entire cove and the staging area were dredged to 5 feet mean low tide. At high tide it is no deeper than 2 to 3 feet. There are SAVs in the area. He feels it is not a good site for marina zoning.

A discussion ensued regarding the agreement as to whether public sewer is limited to residential development only. Previously there was a proposal for a large marina facility and the town did not want to accept sewage from a big project without annexing that area into the town.

Questions were raised regarding the status of the 1921 Grandview Subdivision and if the lots were ever consolidated. Attorney Saunders said he could find no records the lots have been dissolved and pointed out the area surrounding the Williams properties is residential. Mr. Williams pointed out the various lots of the subdivision and ownership.

Another inquiry by the Planning Commission was, “is there an inherent right to be able to develop a property? Is it possible there are properties that are meant not to be developed?” Attorney Mowell said that is correct. Attorney Saunders feels that is a “taking” of a property owner’s rights.

Mrs. Owings noted that during the Visioning Session for the Comprehensive Plan, Rock Hall emphasized they do not want any more condos in Rock Hall or on the Harbor. Should the Planning Commission feel a mistake was made in the rezoning, “CAR” Critical Area Residential may be considered but Intense Village would pretty much be in opposition of what Rock Hall has expressed.

Chairman Morris invited the public to comment. Wayne Brady was sworn in and advised that he has lived in Rock Hall over 50 years. He does not feel marine zoning is appropriate. This is a fish spawning area and there are SAVs.

In summarizing Attorney Saunders referenced a rezoning case in Georgetown, Kent County, which was based upon a mistake – Commercial to Residential, showing there was no need for additional commercial property and that some commercial property had remained vacant for a number of years; and that the geographical characteristics of the parcel made it unsuitable for commercial use. Attorney Saunders feels this is the same situation with the Williams’ properties.

Attorney Saunders said the Greenlee report shows there is a huge demand for waterfront residences in Kent County. He feels the rezoning of the Williams’ properties make sense. This property is not suitable for a pier but since there is a large marina close by residents can live on the site and keep boats at the marina. The proposed zoning is the correct zoning for this property since it is adjacent to the town in a developing area.

The Board members expressed confusion and felt they were unable to make a decision today. The Board felt they needed more information, especially comments from the Town of Rock Hall with regards to the agreement restricting sewer in Rock Hall Harbor for intense development. Discussion continued.

The applicants were in agreement to continue with review of the proposed zoning map amendment at the February Planning Commission meeting.

After further discussion, Ms. Brown made a motion to table the Laura Lynn Williams zoning map amendment application until the February meeting, noting the Planning Commission would like more time to consider the rezoning request. It is also important to obtain comments from the Town of Rock Hall before making a recommendation. The motion was seconded and the vote unanimous.

STAFF REPORTS

Gail W. Owings, Planning Director – Mrs. Owings advised ERM, Environmental Resources Management, has been hired as the consulting firm to conduct the Worton/Butlertown Village Master Plan.

RFPs for the Fairlee plan are under review by staff. Staff and consultants for the Kennedyville Master Plan rode around Kennedyville in December. The consultants are gathering information.

The Board was given copies of all the letters received following the Comprehensive Plan public hearing. They will be discussed at the workshop scheduled for Thursday, January 12.

GENERAL DISCUSSION

Bill Sutton mentioned that the Kent County Emergency Management Services will hold a public informational meeting at Kent County High School sharing the results and recommendations of the SWAT Team report.

Rev. Freeman read where Ed McMahon will be at Washington College on January 25. Staff will get information out to members.

There being no further business, Chairman Morris adjourned the meeting at 5:35 P.M. The next meeting of the Planning Commission will be Thursday, January 12, 2006, at which time the Board will discuss the written comments received on the draft Comprehensive Plan. The Planning Commission will meet on Thursday, February 2, 2006 for the regularly scheduled meeting.

___________________________________

Elizabeth H. Morris, Chairman

____________________________________

Elizabeth E. Carroll, Secretary

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