REVIEW AND ACTION

Waiver Request, 40 Court LLC – for a waiver from the requirement that transformers be located underground in order to construct an above-ground transformer in the I-1 Zone at 40 Southlawn Court.

Mr. Wasilak presented the staff report.  Mr. Wasilak stated that this is a Waiver Request from the Zoning Ordinance requirement that transformers must be located below-ground.  The subject property is part of a larger parcel located off Southlawn Lane.  There are currently several ownership lots on this property, which is covered by a single use permit and allows various uses on this site.  This parcel is formerly known as the Ward Property.  Mr. Wasilak stated that, a recent use permit amendment that was approved, provided for development of the final parcel on the site for an indoor recreation facility.  In conjunction with this use permit approval, a request has been submitted to install a transformer above-ground on the property screened by a wood fence structure.  Mr. Wasilak stated that, as is tradition, staff has not made a recommendation on this request in lieu of the applicants making their case with the Commission.     

Dave Freishtat, Attorney with Shulman, Rogers, Gandal, Pordy & Ecker, PA, presented the applicant’s request.  Mr. Freishtat stated that the applicant, 40 Court, LLC is the developer of the proposed building on Lot 1F, Southlawn Industrial Park.  He explained that the actual use would be Champions Field House, which is primarily for women who play field hockey, volleyball and some gymnastics.  He provided an aerial of the site pointing out the four existing buildings on the site.  Mr. Freishtat informed the Commission that all of the buildings on the site, with the exception of the Ice Rink, have above-ground transformers.  He noted that there are five ownership lots on the site and pointed out the location where the transformers would be installed.  Mr. Freishstat also pointed out the location of existing transformers with enclosures on the site.  He further described the topography of the site that would conceal the proposed transformer from public view.  The applicant is proposing a five-foot tall board-on-board fence to screen the transformer similar to the fence that surrounds the transformer on the Ward property.   

Mr. Freishstat presented the reasons for the applicant’s request:  1) the sole tenant is Champions Field House who provides training primarily for women playing field hockey and volleyball; 2) the visibility of the transformer would be screened by a wood fence that would allow access for maintenance, but not increase the cost of installation and repair; 3) the property is surrounded by a DHL distribution facility across the street and the Red Gate Golf Course, which would be screened from the wood fence enclosure for the transformer by the building itself; 4) the area in the rear of the building is in forest conservation easement and the power lines do not run in that area.  This location is the only possible location for the transformer; 5) the below-grade transformer is more expensive to build, install and maintain.  Due to the below-grade location, the transformer must be water tight.  The installation must be in a special concrete structure, allowing for access and special circulation of air to avoid undue heat build-up.  Maintenance of the transformer is not only difficult, but is also hazardous.  All of this cost must be absorbed by a tenant, who can least afford the extra expense and whose participants come to the facility on a regular basis and would not be impressed by a below-grade transformer.     

Commissioner Ostell questioned the height of the masonry enclosure attached to the DHL building.  Mr. Freishtat replied that the enclosure is approximately six or seven feet tall, significantly taller than the transformer.  In response to Commissioner Ostell, Mr. Freishstat replied that all of the transformers on the site are about the same height, which is about four and a half or five feet. 

Allen Kronstadt, developer and owner of the site, said he was working with the tenant to get this sports facility, Champions Field House, into operation.  Mr. Kronstadt described the structure and the specialized sports activities for women’s leagues and other leagues as well.  He stated that there would be no need for a higher enclosure wall because of the shrubs and fence. 

The Commission discussed concerns regarding the location of the proposed transformer and whether there was a safer location to install the transformer, standards for finding good cause for an above-ground transformer as explained in the Zoning Ordinance, and vehicular safety issues on the site.

In response to Commissioner Hill, Mr. Kronstadt explained the design and public safety issue on the site.   Mr. Kronstadt said a metal fence would be installed to protect that whole area from traffic.       

Commissioner Hill questioned whether the transformer could be moved to the other side of the driveway because of the public safety issues.  Mr. Kronstadt replied that there is a gas easement in that location and moving the transformer to that side would be taking away spaces from the parking lot.  Mr. Freishstat stated that there is also a fire hydrant in that location.
  
Commissioner Tyner suggested that, having visited the site, there are cases where it does not make too much sense to go to extraordinary extremes.  He noted that when he went to the DHL site to find the outside transformer, he could not find it at first because of how it was screened.  All of the other transformers were above-ground, and that is one of the reasons to have an industrial zone in the City for these uses.  He feels the applicant has done the best they could.  Commissioner Johnson agreed.  

Commissioner Tyner moved, seconded by Commissioner Ostell, to approve the Waiver Requested by 40 Court LLC.  The motion passed on a vote of 5-0-1, with Commissioner Hill abstaining because he felt that the applicant did not provide adequate information for the Commission to judge the merits of other possibilities at this time.  Commissioner Britton was absent.

BRIEFING

Water Quality Ordinance – for a briefing on the new Water Quality Ordinance adopted by the Mayor and Council on July 16, 2007.

Mr. Wasilak stated that this is a series of two briefings and the first briefing is on the Water Quality Ordinance, which will be presented by Mark Charles, who is the City’s Chief of Environmental Management. 

 Mr. Charles presented the briefing.  He stated that this ordinance went before the Mayor and Council on March 19, 2007.  He said that this process began in February 2007 and concluded a week and a half ago.  Mr. Charles presented some photos of Rockville that were the motivation for going forward with this ordinance.  While it will protect water quality, it is not just related to the stream, it is the infrastructure as well.  Mr. Charles discussed the photos of sites in Rockville illustrating illicit dumping of commercial wastes into storm sewers and fats, oils and grease that have repeatedly blocked the sewer system.  He stated that the proposed ordinance intends to address protection of surface and groundwater within the City, prolonging the useful life of the City’s stormdrains and sanitary sewers, safeguarding the City employees working in the stormdrain system and sewers, charging property owners for littering, establishing inspection and field investigation protocols, spill prevention and notice of spills, and ensuring that the City remains in compliance with its Clean Water Act requirements, and implementation steps to conduct extensive public education and outreach effort focusing on the ordinance.     

Mr. Charles pointed out continuing concerns regarding runoff of chemicals from landscaping into streams and into the three major watersheds in the City, automotive maintenance and repair and cleaning of automotive shops, oil and grease from food service establishments and from auto shops, misuse of utility lines, manpower to implement the ordinance, enforcement responses and citations, and fertilizer runoff into City waterways.
Mr. Charles further explained that Rockville needs additional authority to fulfill its state and federal stormwater obligations under the Clean Water Act.  Failure to meet these requirements potentially subjects the City to civil penalties. 

Forest and Tree Preservation Ordinance – for a briefing on amendments to the City’s Forest and Tree Preservation Ordinance, adopted by the Mayor and Council on July 16, 2007.

Wayne Noll, City Forester presented the briefing.  He discussed the background and changes to the ordinance.  He stated that one of the purposes of this revision is water quality and having a healthy and thriving urban tree canopy in the City.  Mr. Noll stated that the goals of the ordinance are to encourage preservation and enhancement of Rockville’s urban forest.  The City is encouraging the planting of trees in non-forested areas and the ordinance establishes procedures and standards that require protection of trees during developments.  In addition, the ordinance establishes standards for planting trees and the City’s ordinance actually exceeds the State’s requirements.  The purpose for revising the ordinance was to strengthen the City’s ability to preserve existing trees and forests.  The language in the existing ordinance needed clarifying in order to strengthen the fact that the City can require a certain percentage of forests be preserved.  It would also strengthen the City’s ability to ensure that planting requirements are met on development sites as opposed to developing a site and then meeting planting requirements offsite or paying a fee.  It also establishes a minimum amount of tree planting that would be required on development sites known as minimum tree cover.  Other jurisdictions in the area have had the minimum tree cover requirement for some time, and staff felt it would be a good idea to include in the City’s ordinance.  The purpose of the revisions is: 1) to eliminate the option for developers to meet their planting requirements offsite; 2) to require eradication and control of exotic/invasive plants in forested areas; and 3) to incorporate changes the State made to the State Forest Conservation law into the City’s law.  Staff has just updated some definitions and clarified some of the language.

Mr. Noll stated that the changes would require the preservation of trees and forest to a level where reforestation or aforestation would not be necessary, or what is called “the Break-even point”.  The Break-even point is a point that the State law established and it means that when a site is completely forested, the Break-even point is that that point site can be cleared to a certain level, and there is no penalty for replanting trees.  The fee-in-lieu would come into effect when the developer of a site must plant trees because there are no trees on the site.  This is called Afforestation. 

The Commission discussed concerns regarding the changes, replacement of trees, maintenance plan for tree replacement, and preservation of smaller areas in the City, definition of specimen trees, invasive plants, and the impact of the revised ordinance on property owners’ use of their properties.   

COMMISSION ITEMS

New Business

Mr. Wasilak reported that there are some ongoing reforestation issues at the Fallsgrove development.  He stated that he wanted to bring this to the Commission for consideration of revoking approved applications.  Elise Cary, Assistant City Forester, explained the situation.  She explained that Fallsgrove Associates would be given an administrative penalty regarding reforestation because they have not met the condition of approval deadlines for achieving it.  Ms. Cary stated that during a recent meeting last week, Fallsgrove Associates was given the punch list resulting from the City’s inspection.  She noted that there no good explanation was received.  Ms. Block added that the reforestation  involves requirements for the entire project, and Ms. Cary explained that it involves a property that would be deeded to the City.  There has been no trash removal, and there are invasive plants.  Commissioner Johnson stated that he hopes it all works out, but if they are still recalcitrant, and it is a condition of the use permit, the Commission should see it again.  Ms. Cary stated that a few more new applications are coming in, and staff will make sure a condition of approval will be imposed that forest conservation must comply with the ordinance. 

Chief of Planning Report

Mr. Wasilak reported that the Commission is scheduled to have one more meeting before the summer break, and which will be August 8.  Mr. Wasilak discussed the agenda for that meeting.  He noted that the next meeting would be September 12. 

Mr. Wasilak informed the Commission about upcoming items on the Mayor and Council agenda, which are the continuation of the potential revisiting of the Town Center Master Plan.  Monday night, July 30, will be a discussion of transportation impact.  The following Monday, August 6, there will be another discussion on what has been approved in the Town Center as well as the terms of development.  Mr. Wasilak explained that this will be the third in a series of discussions and there will probably be a subsequent discussion with the Mayor and Council in terms of direction as to whether there is going to be a revision to the Town Center Master Plan. 
The Commission discussed other upcoming applications.

Mr. Wasilak stated that he thought it would be useful to have a retreat or session with the Commissioners to revisit Commission responsibilities and any other topics that the Commission might want to cover.  Mr. Wasilak suggested scheduling the retreat after Labor Day.   

ADJOURN

After further discussion, the meeting adjourned at 9:21p.m.