BOARD OF APPEALS January 6, 2016 AGENDA DOCKET NO. AP2015-040: An appeal made by Meridian Leitersburg LLC for a variance from minimum 25-ft. left side yard setback to 7-ft. for bank drive-thru canopy on property owned by the Appellant and located at 19638 Leitersburg Pike, Hagerstown, zoned Business Local GRANTED 4-0 DOCKET NO. AP2015-041: An appeal made by Mason Dixon Solar Center LLC for a special exception to establish a solar energy generating system on property owned by 2003 Mason Dixon LLC and located at 17939 Mason Dixon Road, Hagerstown, zoned Planned Industrial GRANTED 4-0 ****************************************************************************** Pursuant to the Maryland Open Meetings Law, notice is hereby given that the deliberations of the Board of Zoning Appeals are open to the public. Furthermore, the Board, at its discretion, may render a decision as to some or all of the cases at the hearing described above or at a subsequent hearing, the date and time of which will be announced prior to the conclusion of the public hearing. Individuals requiring special accommodations are requested to contact Kathy Kroboth at 240-313-2469 Voice, 240-313-2130 Voice/TDD to make arrangements no later than December 28, 2015. Any person desiring a stenographic transcript shall be responsible for supplying a competent stenographer. The Board of Appeals reserves the right to vary the order in which the cases are called. Please take note of the Amended Rules of Procedure (Adopted July 5, 2006), Public Hearing, Section 4(d) which states: Applicants shall have ten (10) minutes in which to present their request and may, upon request to and permission of the Board, receive an additional twenty (20) minutes for their presentation. Following the Applicant s case in chief, other individuals may receive three (3) minutes to testify, except in the circumstance where an individual is representing a group, in which case said individual shall be given eight (8) minutes to testify. Those Applicants requesting the additional twenty (20) minutes shall have their case automatically moved to the end of the docket. For extraordinary cause, the Board may extend any time period set forth herein, or otherwise modify or suspend these Rules, to uphold the spirit of the Ordinance and to do substantial justice. Matt Harsh, Chairman Board of Appeals
BEFORE THE BOARD OF APPEALS FOR WASHINGTON COUNTY, MARYLAND Meridian Leitersburg LLC Applicant Appeal No. AP2015-040 OPINION This action is a request for a variance from the minimum 25 left side yard setback to 7 for a bank drive-through canopy. The subject property is located at 19638 Leitersburg Pike, Hagerstown, Maryland; is owned by the Applicant; and is zoned Business Local. The Board held a public hearing on the matter on January 6, 2016. Findings of Fact Based upon the testimony given, all information and evidence presented, and upon a study of the specific property involved and the neighborhood in which it is located, the Board makes the following findings of fact: 1. The subject property is being improved with a shell building that will be used for commercial tenancies. 2. The site plan has long been approved, and the building is under construction. 3. One of the first tenants to lease space is a credit union that requires a drive-through canopy to service its depositors. 4. The variance will allow for a two-lane drive-through. 5. The drive-through will not affect traffic flow as approved on the site plan. 6. The canopy will cover area that was already proposed to be blacktopped. 7. Only the canopy structure (and not the building) will encroach into 1
the left side yard setback area. 8. The most-appropriate site for the drive-through is as proposed on the left side of the property. 9. No other location would permit construction of the drive-through. 10. No opposition was presented to this request. Rationale The Applicant seeks a relaxation of the left side yard setback standards. This Board has authority to grant a variance upon a showing of practical difficulty or undue hardship. 1 25.2(c) and 25.56. Practical Difficulty may be found by the Board when: (1) strict compliance would unreasonably prevent the use of the property for a permitted purpose or render conformance unnecessarily burdensome; and (2) denying the variances would do substantial injustice to the applicant and a lesser relaxation than that applied for would not give substantial relief; and (3) granting the variance would observe the spirit of the Ordinance and secure public safety and welfare. 25.56(A). The grant of the requested variance is appropriate. The proposal is a permitted use of the property, and strict compliance would frustrate the otherwise-permissible use of a portion of the property as a credit union. It is obvious that modern credit unions serve depositors with the convenience of drive-through service. The placement of the drive-through and canopy as proposed herein is the most-logical site given the size and shape of the property and the location of improvements thereon. Moreover, the drive-through and canopy cannot be reduced in area to lessen the required variance, as the proposed size is what is necessary to 1 When the terms unnecessary hardship (or one of its synonyms) and practical difficulties are framed in the disjunctive ( or ), Maryland courts generally have applied the more restrictive hardship standard to use variances, while applying the less restrictive practical difficulties standard to area variances because use variances are viewed as more drastic departures from zoning requirements. Belvoir Farms Homeowners Ass'n, Inc. v. North, 355 Md. 259, 276 n.10 (1999) (citations omitted). 2
be functional. The canopy s placement as proposed is unobjectionable, and no evidence was presented to suggest that the encroachment would have any adverse consequences to neighboring properties. Furthermore, only the outlying structure (the canopy, and not the building itself) encroaches into the setback area, mitigating the impact and intrusiveness of the encroachment. No one opposed the requested relief. Given all the above, we conclude that the grant of the variance upholds the spirit of the Ordinance. No probative evidence was presented that the variance relief would negatively affect the public safety and welfare. Accordingly, this appeal is hereby GRANTED by a vote of 4 0. Date Issued: February 5, 2016 BOARD OF APPEALS By: Hampton Wedlock, Vice Chair 3
BEFORE THE BOARD OF APPEALS FOR WASHINGTON COUNTY, MARYLAND Mason Dixon Solar Center Applicant Appeal No. AP2015-041 OPINION This action is a request for a special exception to establish a Solar Energy Generating System (SEGS) 1. The subject property is located at 17939 Mason Dixon Road, Hagerstown, Maryland; is owned by 2003 Mason Dixon LLC; and is zoned Planned Industrial. The Board held a public hearing on the matter on January 6, 2016. Findings of Fact Based upon the testimony given, all information and evidence presented, and upon a study of the specific property involved and the neighborhood in which it is located, the Board makes the following findings of fact: 1. The Applicant seeks to establish an 18 megawatt Solar Energy Generating System on 160 acres of a 172.29-acre Planned Industrial property. 2. The system will include approximately 50,000 photovoltaic panels and will generate electricity to service approximately 2,500 average homes. 3. The topography of the site makes it amenable to use for solar energy generation. 1 A grid-tie solar facility consisting of multiple solar arrays whose primary purpose is to generate electricity for distribution and/or sale into the public utility grid and not for onsite consumption. Article 28A. 1
4. The unlighted SEGS will generate clean electricity for 25 years or more. 5. The land will be returned to its original condition at the end of the project s life. 6. The panels will be mounted on a fixed-tilt racking system attached to driven piles; they will not exceed 12 in height. 7. Underground electric lines will connect the system to the grid. 8. The unmanned SEGS will be monitored remotely and will have quarterly site visits for maintenance and oversight purposes; traffic generation will be de minimis. 9. The SEGS is quiet, and it will not emit any dust, odor, pollutants, gas, smoke, fumes, thermal emissions, or vibrations. 10. The non-reflective nature of the panels will eliminate glare; the SEGS will have no adverse reflective effects on neighboring property uses or aircraft. 11. The system will not cause any disruptive electromagnetic interference with surrounding property uses or off-site telecommunications or surveillance systems. 12. The system will not create any health hazards to citizens residing or working nearby. 13. The system will be secured at its perimeter with a chain link fence 6 in height. 14. A vegetative screen will shield the system from view. 15. The proposed SEGS meets the design criteria set forth in Section 4.26.A of the Zoning Ordinance, as detailed on the Application for Special Exception for Operation of a Solar Energy Generating System (SEGS) in the Planned Industrial (PI) District, the relevant portion of which is adopted 2
and incorporated herein. 16. The SEGS will not have any impact on any stormwater runoff from the area on which it is installed. 17. The SEGS will undergo further review by multiple state and local agencies, including the Planning Commission and the Public Service Commission. 18. The SEGS conforms to the Comprehensive Plan as explained in a Memorandum dated January 5, 2016 to the Zoning Coordinator from the Director of Planning and Zoning. 19. The SEGS is compatible with the existing neighborhood. The neighborhood includes agricultural uses, scattered residential uses, and some industrial uses. The SEGS will not be discordant with these uses given its lack of emissions, its silent operation, and its immaterial traffic impact. 20. For the same reasons, and because the panels are non-reflective, the use will not be discordant with operations at Hagerstown Regional Airport. 21. There are no inherent adverse effects associated with the use that will be worse at the proposed site than at any other site in the zone. 22. Several area residents testified in favor of the proposal, noting that a solar array was a preferred use of the property when compared to other, more intensive uses to which it could be put. 23. Another resident testified against the use, saying that he preferred the property to remain in agricultural use. Rationale Solar Energy Generating Systems are regulated pursuant to Section 4.26 of the Zoning Ordinance. They are a delineated special exception use in the Planned Industrial district. 18.102(a). The Board has authority to 3
grant a special exception pursuant to Section 25.2(b) of the Zoning Ordinance for Washington County, Maryland. A special exception is defined as a grant of a specific use that would not be appropriate generally or without restriction; and shall be based upon a finding that the use conforms to the plan and is compatible with the existing neighborhood. Article 28A. This site is not in a Priority Preservation Area, a Rural Legacy Area, or in the Antietam overlay zone, all areas where a SEGS is prohibited. The use is a permissible special exception use of the property. Importantly, the SEGS will be removed at the end of the project s life, returning the land to a vacant state. This keeps the land in relative low intensity use for 25 years or more, even though other uses with far greater intensity are allowed in the Planned Industrial district. Given that the neighborhood includes agricultural uses, scattered residential uses, and varied industrial uses, the SEGS will not be incompatible with the existing neighborhood and the uses found therein. The proposed use does not conflict with the provisions of the Comprehensive Plan, as explained by the Planning Director. There was no demonstration that the grant of this special exception would thwart the orderly growth of the community or negatively affect traffic conditions and facilities. Once built, the unmanned SEGS will require only quarterly site visits, so traffic impact is immaterial. The inherent adverse effects attendant to solar energy generating systems are no greater at this location than they would be at any other location in the Planned Industrial district. The terrain is amenable to the use. A chain-link fence, as required by the Ordinance, will screen the system from trespass. Furthermore, a vegetative buffer will screen the system from view from adjacent property owners. The testimony conclusively demonstrated that the SEGS will not create odors, dust, gas, smoke, fumes, vibrations, glare, thermal emissions, or noise. Therefore, the SEGS will not have a negative effect upon the peaceful enjoyment of people in their homes. There was no showing that establishment of the use would have any impact on any historical sites or properties. Furthermore, 4
there was no probative evidence to demonstrate that the SEGS would have any detrimental impact on the environment, on the public health and welfare, or on telecommunications or surveillance systems. Considering all the evidence and testimony presented in this matter, there was no probative evidence showing that the SEGS would have any greater adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone. Schultz v. Pritts, 291 Md. 1, 15 (1981). As such, the grant of the special exception is appropriate and warranted by the testimony and evidence before us. Therefore, we GRANT the requested special exception by a vote of 4 0. Date Issued: February 5, 2016 BOARD OF APPEALS By: Hampton Wedlock, Vice Chair 5