Board of Appeals continues Kohl’s Lexington Park buffer‑yard variance after debate over fence, safety and planning review

The St. Mary’s County Board of Appeals on April 22 continued VAP‑07‑130‑003, a variance application filed by LV Retail Land LLC for the Lexington Village shopping center (site of Kohl’s), to the board’s May 27 meeting so county staff can determine whether changes to the approved 50‑foot B buffer require Planning Commission review.

Staff, speaking through planning staff member Yvonne, told the board the application would modify the buffer‑yard requirement in section 63.4 of the county comprehensive zoning ordinance. Under schedule 50.4 the existing retail use is treated as high intensity because the store exceeds 20,000 square feet, producing a required B buffer (normally 75 feet, reducible to 50 feet when a six‑foot berm or fence is installed). The approved site plan presumed a 50‑foot buffer plus a solid visual barrier; staff recommended denial, finding no practical difficulty inherent in the land that would justify eliminating the solid visual barrier.

The applicant’s representatives said the fence and berm combination, together with a more than 10‑foot grade drop from Maryland Route 235 to the back of the shopping center, produced an unintended complete visual concealment of retail buildings and parking. Craig Cohen of CRG Development said the effect was “an oversight on our behalf” and argued a less opaque, lower fence would improve visibility for prospective tenants, reduce after‑hours concealment, and lessen a potential driver distraction caused by motorists craning to see into the center.

Attorney Christopher Longmore (agent/ counsel for the property) presented legal arguments that the property’s grade and layout created a practical difficulty and cited prior Board of Appeals minutes (Toyota of Southern Maryland matter) as analogous precedent. Longmore also said the applicant had promptly contacted staff after the fence was installed and was willing to work with the department on revisions and replacement plantings.

Board members and county counsel questioned the procedure: whether a variance granted by the Board of Appeals would also require a site plan amendment before the Planning Commission or whether staff could treat proposed changes as a minor modification. Land use staff (Mr. Balazs) told the board the department must decide whether the change is material to the Planning Commission’s concept/site plan approval; he did not make that determination at the hearing. Legal advisor George Sparling confirmed the board has jurisdiction to rule on the variance but noted practical next steps would depend on staff’s procedural determination.

Members voiced differing views about the aesthetic and safety tradeoffs. Some commissioners suggested alternative fence materials or thicker plantings as conditions; others emphasized that the site’s prominent location on Route 235 and Lexington Park Development District goals for streetscape and parking‑lot mitigation must be protected. The board did not resolve those details.

At the end of the hearing the board voted unanimously to continue VAP‑07‑130‑003 and the record to the May 27, 2010 Board of Appeals meeting so staff can determine whether Planning Commission review or an administrative site‑plan amendment is required and so the applicant and staff can attempt to refine the proposed mitigation and planting plan.

Votes at a glance: The board voted to continue VAP‑07‑130‑003 to 2010‑05‑27 (motion seconded; unanimous).