UPCOMING: - Thursday, December 1st - ECONOMIC DEVELOPMENT AUTHORITY - 3:00pm at The Nelson Center - Tuesday, December 13th - BOARD OF SUPERVISORS - 1:00pm Work Session on VDOT Six-Year Plan; 2:00/7:30pm regular monthly meeting. ------------------------------------------------------------------------- NOTE: The Board of Supervisors' Zoning Work Session scheduled for November 29th was cancelled. ------------------------------------------------------------------------- PLANNING COMMISSION Wednesday, November 30, 2005 Present: Ms. Phil Proulx, Mr. Mike Harman, Ms. Emily Hunt, Ms. Linda Russell, Mr. Tommy Bruguiere CLASS III COMMUNICATIONS TOWER APPROVAL & SPECIAL EXCEPTION/NTELOS - The applicant has applied for a permit to place a 107-foot tall tower on property owned by Barbara T. Lowery on the south side of Rt. 29 between Woods Mill and Covesville, approximately ¼ mile north of Aistrop Lane. The property is zoned Agricultural (A-1). The proposed tower will replace an existing 83-foot tall tower currently located on the north side of Rt. 29. The existing tower is located above the line of sight for the north-bound lane of Rt. 29 resulting in lost or dropped cell calls. In addition to the required permit, nTelos has applied for a Special Exception to erect a 107-foot wooden tower within one air mile of a Scenic By-Way (Rt. 29 from Woods Mill to Rt. 6 East). Mr. Boger noted that Section 20-13-1 of the county's Zoning Ordinance allows for a Special Exception if a) the strict application of the ordinance would produce undue hardship; b) that such hardship is not shared generally by other wireless providers in the county and the same vicinity; and c) that the authorization will not be of substantial detriment to adjacent property and that the character of the district will not be changed by granting of the variance (special exception). He reported that the proposed tower will be 141 feet from the adjacent property and that the problems with the existing tower line of sight create a hardship not shared by other providers in that area. Mr. Boger noted that the applicant is willing to paint the pole, antennas and cabinets brown to blend with the existing surroundings and construct a treated wood fence to screen the equipment from view. Ms. Valerie Long with McGuire Woods, representing the applicant, noted that there will be minimal visibility as nTelos has worked to keep the top of the tower to a minimum height above the trees. She noted that the tower will be in an area of 20 square feet with screening and that the 141-foot area between the tower and the adjoining property is wooded. Ms. Long said that there will not be a generator on site with one brought in only to deal with extended power outages of 8 hours or more. She noted that there is a unique hardship in this case as nTelos already has a network in place in the area and is trying to deal with a line-of-sight problem. During Public Comment, Mr. Paul Mierzekewski, an adjoining landowner, listed his concerns as: 1) although the applicant has said that this tower will replace an existing tower, it is a new site and a new tower; 2) the proposed site is close to and visible from Rt. 29; 3) the property is hundreds of acres but the proposed site has to be 141 feet from his property line; 4) an 80' tower is allowed but a 107-foot tower is too tall with others waiting to install taller towers; and 5) the tower is planned to benefit commuters not locals in a beautiful wooded area of the county. Ms. Olive Mierzekewski said that that section of Rt. 29 is dangerous enough without people on their cell phones there. She also expressed concern about the proposed addition of a utility pole to bring the power from Rt. 29 to the site. Mr. Harman asked whether the proposed tower could be used for multiple providers. Ms. Long said that because the antennas are mounted flush to the pole and because the top of the pole is a minimal height above the trees, there is not room for multiple providers to co-locate on one pole. Ms. Russell, who served on the committee who developed Section 20 of the ordinance, noted that the committee felt that the choice was to allow the lattice-type towers where multiple providers could co-locate or to allow shorter poles with one provider. Mr. Bruguiere said that everyone benefits from the cell towers along Rt. 29 and that if people want communications, there will have to be towers. He said that the ones in Nelson are unobtrusive. Commissioners voted 4-0 (Mr. Harman abstaining as his wife has a financial interest in two of the adjoining properties) to recommend approval of a Special Exception to allow nTelos to erect a 109-foot communication tower. Ms. Russell noted that the ordinance requires that the lightening rod height be included in the overall height of the tower, hence the change from 107 feet to 109 feet. Commissioners voted 4-0 (Mr. Harman abstaining as his wife has a financial interest in two of the adjoining properties) to recommend approval of a permit to allow nTelos to construct a 109-foot wood pole communications tower to be painted brown with a treated wood fence to screen the equipment. FINAL SUBDIVISION/JOSEPH M. SERKES - The applicant has applied to divide a 36,808 square foot lot into two lots of 19,802 and 17,006 square feet each on Deer Springs Lane in the Mountain Subdivision of Wintergreen. Mr. Boger reported that the lot was originally two lots that were combined into one. He noted that there are sufficient development rights available on the mountain to accommodate the division. With no public comment, Commissioners voted 5-0 to recommend approval of the final plat. CONDITIONAL USE PERMIT/SUSAN FITZGERALD - The applicant has applied for a permit to allow use of 23,000 square feet of an existing lot for the stockpiling and grinding of stumps on property located at 175 Rhue Hollow Road off Rt. 151. Mr. Boger noted that the property is zoned Agricultural (A-1) and that the proposed use, a waste wood management operation, is not an allowed use in A-1, as determined by the County Attorney. He reported that the applicant has stated that the operation will be used only by them and will not be open to other haulers and that the property is currently being used for a residence and home occupation - trucking and agricultural. Mr. Boger also noted that the applicants were cited for a zoning violation on June 6th of this year for operating the waste wood management center. He said that the county currently has no rules for this type of use so the regulations will have to be developed. He said that he does not know what the noise levels would be or what kind of grinder would be brought in to grind the stumps. Mr. Boger noted that the applicant does use a chipper but that use is restricted to use on the actual construction site and is therefore exempt from the noise ordinance. He noted that moving the proposed site to a site further into the property could lessen the impact on adjoining landowners. He suggested deferring a decision to allow the Commissioners to look at the proposed site and to hear the actual type of grinder in operation on the property. Mr. and Mrs. Fitzgerald noted that they are willing to move the site back into the property to meet the required 200-foot safety zone. Mr. Fitzgerald said that the county's decibel levels are too low. Ms. Fitzgerald said that they have worked hard to keep their business neat and in order and have heard only one complaint from one neighbor. She said that they need to find a solution as they need to stay in business. Ms. Russell asked what would happen with the mulch generated by the business. Ms. Fitzgerald said that it would be sold immediately. She noted that the operation is a farm and therefore does not need a commercial entrance as noted in Mr. Boger's report. Mr. Boger said that, if the permit is approved, VDOT will require a commercial entrance, possibly off Rhue Hollow Road rather than Rt. 151. Ms. Russell said that she is concerned that Rhue Hollow Road is a back-country road and that she could see the business improving. Mr. Harman expressed concern about how much noise the grinder would actually generate. Ms. Proulx agreed and noted concerns about what other impacts there might be on the neighbors and what the exact location of the operation will be on the property. During Public Comment, Mr. JACK BUNI, an adjoining landowner, said that it is unfortunate that this has turned into an old-Nelson/new-Nelson issue. He said that the new home he is building is 600 feet from the proposed site. He said that there is already a commercial firewood business on the site and that this is going to be a stump dump. He said it already looks and smells like a dump and is already generating a large amount of runoff into the waterways. Mr. Buni said that DEQ regulations do allow for the use of a small waste disposal unit for land clearing of vegetative waste but the unit cannot be operated within 100 feet of a waterway or within 200 feet of a groundwater source. He said that the stump grinder is a huge machine and the noise from the operation will be terrible for neighbors far away from the site. He noted that the noise on the property is not just limited to the grinder but is also generated by the other equipment used on the property. Mr. Buni said that given the past violations, he finds it hard to trust that the grinder will be used only a few days a year as proposed by the applicant. He said that the county should not allow a dump at the southern gateway to the Rockfish Valley. MR. BOB GREER, a neighbor for 8 years, said that his property looks down on the Fitzgerald property and that he has never been offended by any noise, operation or pollution on the site. He said that relocation of the proposed site on the property makes sense but that the applicants deserve to continue to do what they have been doing. Mr. Harman asked whether Mr. Greer has actually heard the grinder. Mr. Greer said that he has never been able to hear it. MR. DAVE THOMAS, who owns 14 acres on Horseshoe Mountain Road, said that he is confused about what is being proposed. He said that the applicant has stated that only his trucks will come into the property but there is now a question of whether those trucks will enter from Rt. 151 or Rhue Hollow Road. He said that dump trucks pulling out onto Rt. 151 will be a safety issue. He said that the area around Rhue Hollow Road has really grown over the years. Mr. Thomas said that he does not know what the decibel levels will be but has heard a grinder in operation and they are incredibly loud. He said he does not know whether he can live with that level of noise for two or three days at a time. He said that there are too many questions about the proposal. MR. DUDLEY CAMPBELL, who owns three parcels directly across Rt. 151 from the site, said that there have been no noise problems with the existing operation and that once the county approves the permit, the operation will have to meet state standards. He said that there are certain things you have to deal with in rural areas and that Mr. Fitzgerald has a right to do his business. MR. GEORGE HARTMAN said that he is 300 yards from the Fitzgerald property and that his dealings with the applicants have always been good. He said that the trucks have created no problems and that his only concern is that there could be a lot of noise generated by the grinder. Mr. Bruguiere said that the county and state have created a lot of the current problems with dealing with stumps from construction, given the new regulations. He said that an accurate site plan is needed to delineate the setbacks for the operation but that he does not think that grinding for a couple of days should be a problem. Mr. Bruguiere said that he does think the access for the site should be off Rhue Hollow Road. Ms. Proulx said that the information should be specific as to the type of grinder and what it will sound like. She said that it is important to actually hear it on site. Mr. Harman said that the permit should specify limitations on the hours and days of the week for the operation of the grinder. Mr. Boger noted that the applicant will probably need some plan for stormwater management. He said that this type of business is new to the county and there is no information on how to handle it. Ms. Proulx said that each applicant should be dealt with in the same way. Commissioners discussed deferring a decision until their December meeting to allow a visit to the site and allow them to actually hear the grinder on site. Mr. Fitzgerald noted that the cost for the rental of the machine is $375 per hour but that he would be willing to rent the unit if necessary. Ms. Russell suggested that the cost for the rental could possibly be shared with the next applicant. Commissioners voted 5-0 to defer a decision pending a site visit, grinder demonstration and receipt of an accurate site plan. CONDITIONAL USE PERMIT/A.G. SMALL & JASON HARVEY - The applicant has applied for a permit to establish a wood waste management operation on the rear portion of property located at 2641 Rockfish Valley Highway. The property is zoned Agricultural (A-1). Mr. Boger reported that the proposal is for an operation of 75,000 square feet for the stockpiling and grinding of stumps, a log pile for firewood and an area for stockpiling mulch. The operation will be used by haulers contracted to haul for Mr. Harvey and the grinding will be limited to a maximum of 3 days per month on Monday through Saturday with no grinding on Sundays or holidays. The proposed hours of operation are 7am to 5pm. He noted that the surrounding properties are zoned Agricultural, Residential (R-1) and Residential Planned Community. Mr. Boger said that, at present, the majority of the waste wood debris is being generated by construction activity at Wintergreen and Stoney Creek, with state regulations not allowing the stumps to be buried on site or allowing them to be transferred to another site for burning. Wintergreen regulations do not allow on-site burning on the mountain and they no longer have a site available for disposal of the debris. The result of the changed regulations is that there is no legal area in the county to dispose of the waste wood debris. Mr. Boger noted that in addition to more information needed on the noise levels generated by the grinder, the disposition of the resulting mulch, inadequate setbacks for the proposed site and the establishment of an adequate buffer area, the most important question is whether the operation is appropriate for Nellysford. He noted Section 12-3-6 of the zoning ordinance that gives the guidelines for consideration of a permit as a) the use shall not tend to change the character and established pattern of development of an area; and b) the use shall be in harmony with the uses permitted by right in the zoning district and shall not adversely affect the use of neighboring property. Mr. Massie Saunders, representing the applicant, said that the business has been there for 10-15 years and that DEQ has visited the site. He said that the stumps were being burned but that that is no longer allowed by state regulation. Mr. Saunders presented signatures from many of the area residents supporting the proposal after being contacted by the applicant and reviewing the plan. He said that only one person opposes the plan and that she is a rentor and not a landowner. Mr. Saunders said that the operation should be exempt from the noise ordinance as a commercial woodyard in operation as of the date of adoption of the new ordinance. He noted that the actual grinder used generates 78 dB of noise at 120 feet and 71 dB of noise at 240 feet according to the manufacturer. Mr. Saunders presented a letter from Saunders Brothers stating that that business will purchase all of the mulch Mr. Harvey generates and will remove it from the site by tractor trailer at least twice a year or as needed. He said that the working area of the operation is 145 feet from another property that Mr. Small owns and 275 feet from the property line of property not owned by Mr. Small. He said that Mr. Harvey can meet the 200-foot clear zone around the grinder. Mr. Saunders said that the site plan does show a diversion dam and ditches for E&S Control but that he does not expect those to be needed on the site. He noted that the applicant is willing to limit operation of the grinder to a maximum of 15 days per year on Monday-Saturday with no grinding on Sundays or holidays and limit hours of operation to 7am to 7pm. He reported that the existing entrance to the site is already a commercial entrance and that VDOT has no issue with the entrance. He noted that the business is in an agricultural area and was there long before the development around it existed. Mr. Saunders said that there will not be constant noise other than the days and hours noted for grinding. He said that there will be no future development of Nellysford without a site to dispose of the waste and that the grinder to be used by the applicant is the same machine that was used at the Stoney Creek Golf Course during that construction. Ms. Hunt said that it is a disservice to the applicant to put so much new information in front of the Planning Commission at the last minute, ask them to read it all and then make a decision. Ms. Proulx said that she felt the same as she did about the other application, that she wants to see and hear the grinder in operation on the site. Mr. Harman said that he is concerned about future plans for Nellysford and whether this fits into that plan. Ms. Proulx said that there is a Comprehensive Plan in place with the area designated for growth but that the existing zoning takes precedence over that Comp Plan. Mr. Bruguiere said that the operation is governed by state regulations that there is no other place to dispose of these materials. Mr. Boger noted again that the proposed use is not an allowed use in A-1. During Public Comment, MS. MARY GORKA who rents an adjoining property, said that she was an occupational health nurse for 7 years in charge of hearing maintenance so she knows what 70 dB means. She said that she has heard the grinding machine and that it is very loud. She expressed her opposition for the following reasons - a) neighbors are being asked to accept something they have no control over; b) potential negative effects on the future development of Nellysford; c) that the current zoning would allow such an operation at the edge of a growth area speaks to the need for improvements to the existing ordinance; and d) health risks with operation even 15 days per year. She suggested that the community work together to keep Nellysford peaceful and lovely and said that there must be a better spot for this needed business. MR. BILL HOWARD said that he was drawn to Nellysford because of its natural beauty. He said that he had heard the noise of the grinder several weeks ago and that it was clearly audible on many streets in the area. He said that the operation should not be allowed in an area zoned agricultural and that it would prevent him from enjoying his porch and property. MR. JASON HARVEY said that developers support the project for the disposal of the waste. MS. LOIS BENNETT, an adjacent property owner, said that she is concerned about Saturday operation and dump trucks operating on Saturdays with tourists in the area. MS. DENISE HARVEY said that she had no idea that her husband's business would grow so large but that her family depends on that business. She noted that six other families depend on the business as employees. Following the Public Hearing, Mr. Saunders said that the applicant is willing to limit operation to Monday through Friday with no grinding on Saturday, Sunday or holidays. Mr. Boger noted that the County Attorney has ruled that Section 20, Exemptions, of the Noise Ordinance does not apply to the proposed operation. Ms. Proulx suggested that, if approved, the permit could establish a 2-, 3- or 5-year review period. Mr. Boger agreed that the county can put reasonable conditions on the permit and that the County Attorney has advised including a condition retaining the county's right to rescind the permit for specific violations. Ms. Proulx said that she would like to defer a decision to allow for time to review the presented information and to actually hear the machine in operation on the site. Commissioners voted 4-1 (Mr. Bruguiere voting no) to defer a decision. SITE PLAN/AFTON SERVICE CENTER - The applicant has requested approval of an amended site plan to extend the canopy on a new pump island in front of the building. The extension would add approximately 14 feet on the south side of the existing 36-foot canopy. With no public comment, Commissioners voted 5-0 to approve the amended site plan. AMENDED APPROVAL/ROYAL OAKS - Commissioners voted 5-0 to approve an amended resolution of approval to add the sentence, "The Planning Director is authorized to sign the Site Plan as submitted." Meeting adjourned. Copyright 2005 by Rural Nelson, Inc. All rights reserved. Reports may be reprinted or excerpted with attribution. ------------------------------------------------------------------------- OF INTEREST: - "The Home Coming - A Nelson County Story" by Earl Hamner, Jr. at Rockfish Valley Community Center's Black Box Theatre. Dates: December 1-3 & 8-10 at 7:30pm and December 4 and 11 at 2:30pm. Adults $10; Children under 15 $5. Call 361.1999 for reservations. - Second Tuesday of each month - Business consulting at no charge to entrepreneurs at the Library in Lovingston. Contact Nora Gillespie at 434.295.81998 or email sbdc@cstone.net for an appointment. ------------------------------------------------------------------------- This report, sent to over 600 Nelson County citizens, was made possible by the generous donations of Rural Nelson members and supporters. We need your help to continue this service. Please consider donating. Kim T. Cash Field Officer Rural Nelson, Inc. P. O. Box 401 (622 Front Street) Lovingston, VA 22949 434.263.5000 Email: info@ruralnelson.org www.ruralnelson.org