Wednesday, Jan. 9, 2008

Landscaper in Ag Reserve one step closer to closing

Planning Board concerned with owner’s history of ignoring rules, Board of Appeals to meet Feb. 8

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A small landscaping contractor that has operated illegally in the county’s Agricultural Reserve for almost two years was dealt a serious blow by the county Planning Board, which recommended that its application to conduct business be denied.

Butler Landscaping Design of Culpeper, Va., has been operating out of a narrow 2.68-acre lot on Peach Tree Road in Dickerson without a special exception since April 2006, drawing the ire of neighbors and resulting in a protracted legal battle with the county.

County zoning staff provided a list of conditions that could mitigate the operation’s negative effects on the community, but the board unanimously voted against the exception in part because of the company’s history of disregarding county rules and procedures.

‘‘Resolving this with mitigation is likely to be a resounding failure,” Chairman Royce Hanson said at the Dec. 20 hearing. The Board of Appeals, using the Planning Board’s recommendation, is scheduled to hear the petition Feb. 8.

The operation, which is surrounded by residences, was deemed incompatible with the neighboring area because of the intensity of activity on the small lot, a lack of buffering and an absence of well and septic information, board members said.

The board was also taken aback by two aerial photographs taken about a year apart. They showed the site transformed from a green residential lot to an industrialized space covered with impervious surfaces and piles of materials.

Landscape contractors must receive a recommendation for a special exception from the Planning Board and approval from the Board of Appeals in order to operate in the Agricultural Reserve. Owner Melody Butler, who is not related to the Butler family that runs Butler’s Orchard in Germantown, applied for a special exception on July 30.

Butler purchased the property on April 4, 2006, after she was forced from a Darnestown lot for operating without a special exception permit, said her attorney, Sue Carter.

‘‘She’s tried to be a good neighbor, albeit there is a violation and we’re working that through the courts,” Carter said.

The county’s Department of Permitting Services served Butler with a notice of violation on April 27, 2006, informing her that she had 30 days to cease operations, according to DPS documents. Butler failed to comply and was issued a civil citation in June 2006. The Dickerson case moved to Montgomery County District Court, which issued an order of abatement in April 2007. Butler appealed the notice of violation in Montgomery County Circuit Court, and a trial is scheduled for March 20.

‘‘The applicant knew the rules, the applicant had previous experience with the rules,” said Commissioner Allison Bryant, adding that the rules were not followed. ‘‘In fact, I’m beginning to look at how you can restore some of that site.”

Unlike zoning staff, county community planners were opposed to granting a special exception under any circumstances due to ‘‘significant gaps in information” provided by Butler, according to the documents.

Her neighbors were also opposed to the application, as were local environmental activists concerned about the precedent an approval would send those looking to set up contracting companies in the reserve. A large concern was that Peach Tree Road and other nearby rustic roads would break down under the weight of the tractor-trailers that frequent the site.

Next-door neighbor Cora Weeks said she was concerned that plants at the site were at times continuously watered, even while it was raining. Residents are all on a well system and share a common aquifer, Weeks said. Other resident complaints included water running onto a neighbor’s property, noise from trucks and chainsaws, pungent mulch piles, heavy traffic and employees defecating outside.

‘‘This operation has been going on illegally for almost two years now,” neighbor Lynn Lipp told the Planning Board. ‘‘There was a cease-and-desist order that was not observed. I think if you approve this, you’re opening Pandora’s box.”