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HomeMy Public PortalAbout2019_tcmin1022COUNCIL MEETING October 22, 2019 Council Chambers, 25 West Market Street, 7:00 p.m. Mayor Burk presiding. Council Members Present: Ron Campbell, Thomas Dunn (arrived at 7:28 p.m.), Suzanne Fox, Vice Mayor Marty Martinez, Neil Steinberg, Joshua Thiel, and Mayor Kelly Burk. Council Members Absent: None. Staff Present: Town Manager Kaj Dentler, Town Attorney Barbara Notar, Director of Public Works Renee LaFollette, Leesburg Police Chief Greg Brown, Economic Development Director Russell Seymour, Information Technology Director Jakub Jedrzejczak, Information Technology Deputy Director John Callahan, Leesburg Police Captain Dave Smith, Leesburg Police Lieutenant Doug Shaw, Deputy Director of Planning & Zoning Brian Boucher, Senior Planning Project Manager Scott Parker, Capital Projects Manager Terry Yates, Senior Engineer Karin Franklin, Urban Forrester Tyler Wright and Clerk of Council Eileen Boeing. AGENDA ITEMS 1. CALL TO ORDER 2. INVOCATION was given by Gladys Burke. 3. SALUTE TO THE FLAG was led by Vice Mayor Martinez. 4. ROLL CALL a. Electronic Participation for Council Member Steinberg MOTION2019-196 On a motion by Council Member Thiel, seconded by Council Member Campbell, the following was proposed: To allow Council Member Steinberg to electronically participate in the October 22, 2019, Council Meeting. The motion was approved by the following vote: Aye: Campbell, Fox, Vice Mayor Martinez, Thiel and Mayor Burk Nay: None Vote: 5-0-1-1 (Dunn absent and Steinberg abstain) 5. MINUTES a. None. 6. ADOPTING THE MEETING AGENDA Vice Mayor Martinez requested that section 14. Public Hearings, be moved forward on the agenda to immediately following section 11. Petitioners. There were no objections by Council. 1 I Page COUNCIL MEETING October 22, 2019 On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the meeting agenda was moved for approval with Section 14. Public Hearings to be moved forward in the agenda to immediately follow Section 11. Petitioners. The motion was approved by the following vote: Aye: Campbell, Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk Nay: None Vote: 6-0-1 (Dunn absent) 7. CERTIFICATES OF RECOGNITION a. None. 8. PRESENTATION OF PROCLAMATIONS APPROVED AT THE 10/15/2019 REGULAR MEETING a. Proclamation: Veterans Day Mr. Ray Delpesche, Commander of VFW Post 1177 accepted the proclamation and made a few remarks. b. Proclamation: Diwali Mr. Mehtab Singh Kahlon, Mr. Vikas Gupta, Mr. Ajay Sharma, and Mr. Anand Bhandari with 5 Tara Indian Restaurant in the Village at Leesburg accepted the proclamation and made a few remarks. 9. PRESENTATIONS a. None. 10. REGIONAL COMMISSION REPORTS 11. PETITIONERS The Petitioners section was opened at 7:12 p.m. Dave Culbert, 40834 Graydon Manor Lane. Spoke to Council and apologized to Council Member Steinberg who was listening remotely because he mentioned at the last meeting where Mr. Steinberg was present that they had not reached out to the Town on behalf of Graydon Manor to share what they were doing and to provide information. He said that he would take the blame for this is respect to Council Member Steinberg and did want to extend to him an offer and to any and all Council Members who would like to come up to Graydon Manor to see what they are planning to do. Mr. Culbert said for the record that they have previously extended an offer to Mayor Burk that refused to meet with them and to Vice Mayor Martinez who was gracious enough to meet with them at Town Hall. Mr. Culbert said that he recognizes that they still may have some disagreements but he appreciated his willingness to meet with them. He said he has not met with the other Council Members except he did have a meeting at one time with Council Member Fox on an unrelated matter regarding a potential project up at Graydon Manor. He said that it is his understanding that his client may have met with various members of Council but that is it. Mr. Culbert said the invitation is open. 2 I Page COUNCIL MEETING October 22, 2019 Mr. Culbert said his next item was a summary of what he referenced last time and in part that Ms. Notar had mentioned at the meeting before which is to remind you who is in charge of the Town of Leesburg. He said it is not one Council Member or the Mayor but is the full Council who makes those decisions and that is an important distinction. He said by reference the United States Department of Justice does not belong to the President, it does not serve at the President's whim nor should it act as his personal device to accomplish personal goals. He said the Town of Leesburg Depax ttiient of Utilities does not serve only the Mayor. Mr. Culbert said it is not her personal Utility Department to achieve whatever objectives the Mayor may have. He said the Town Council sets the standards and goals and the Town Council establishes the rules. He said this is not government by one but government by the Council. Mr. Culbert provided Council with a handout that he considers homework so the next time he comes that they may be able to address these items. One item included in the attachment is either an email or a text message from Mayor Burk to whom he believes is to Supervisor Umstattd with a simple question — Can the Town stop sewer to Graydon Manor? Mr. Culbert said the message was sent in December 2017. He said the next item is an email that he submitted at the last meeting but bears being read into the record. He said it is addressed to an individual that he read: "The Graydon Manor property is neither within the Joint Land Management Area nor the Town's water and sewer service area; however, the aforementioned deed conveys the sewer main and easement area states that the easement is perpetual and runs with the land and is a contract between the Town and the property owner to provide sewer service to the parcel. If the proposed development subdivides, the parcel will extend sanitary sewer. Town Council approval is required. So we cannot stop the sewer to Graydon Manor." The Petitioners section was closed at 7:19 p.m. 14. PUBLIC HEARING a. TLSE-2019-0003 Wee Garden Daycare — Special Exception Application The public hearing was opened at 7:19 p.m. Mr. Scott Parker advised Council that he had just learned that that the Public Hearing was not advertised correctly as the applicant failed to provide a signed affidavit that the adjacent property owners had been notified. Mr. Parker said that he and the applicant discussed this in the hallway and that the applicants is aware that the Public Hearing could not proceed. Ms. Notar advised Council that a new Public Hearing is required and will need to be advertised. The public hearing was closed at 7:22 p.m. b. Noise Ordinance Amendments to Extend Time for Amplified Sound at Night The public hearing was opened at 7:22 p.m. 3 1 Page COUNCIL MEETING October 22, 2019 Ms. Notar gave a presentation on the options available to change the noise ordinance. She was joined by Capt. David Smith and Lt. Doug Shaw with the Leesburg Police Department (LPD) who worked with Ms. Notar on the Ordinance along with Deputy Parks and Recreation Director Kate Trask and Deputy Town Attorney Christina Newton. Key Points: • Ms. Notar reviewed the statutory ways to measure noise: o Plainly Audible • Staff recommendation is to stay with this measure o Decibel -Based • Not recommended by LPD because it would require purchasing equipment, training on equipment, and certification of equipment and is more difficult to defend in court; must testify as to certification, accuracy, etc. o Some municipalities use both • Ms. Notar reviewed the noise complaints that were received by LPD from August 1, 2018 through September 1, 2019, and noted that the majority were for residential units (506 calls) v. (49 calls) for commercial establishments. • No criminal complaints because the policy is to talk to the person/entity first and typically they lower the sound. • Economic Development Commission submitted a letter asking the Town Council to consider amending the current Noise Ordinance for sound amplifying equipment to 10:00 p.m. as it would create a more business - friendly environment and have a positive economic impact on the local business community. • Parks and Rec, Leesburg Police Department and Town Attorney's Office have discussed and read all of the emails that were submitted and looked at other jurisdictions to try to give Council some balanced options to consider. • Ms. Notar said Leesburg is unique because there are bars and restaurants adjacent to residences. • Parks & Rec recommends that an amended permit section be retained to allow flexibility to issue permits for excessive sound outside of the time limits. Ms. Notar said that is really for the morning activities like bike races and foot races that happen before 8:00 a.m. and they would like a permit on occasion for special events. Ms. Notar said that would not apply to a commercial establishment that wants a later time period. • Ms. Notar said that there are two options in the staff report but changed her opinion and is advising only one option for Council consideration. She said if they want to pass an amendment and extend the time period for sound, then Council should only change the permit section of the Ordinance. • When Council initially initiated the change that the extension of the time period at night was easy. They could just change the time period for the. 4 I Page COUNCIL MEETING October 22, 2019 She said then there was a request by the Town Manager's Office and the Parks and Rec Department to make the Ordinance so that you don't need a permit and you can have amplified sound outside and you don't need a permit. Ms. Notar said that staff spent hours trying to rewrite the Ordinance and that it is difficult because it is a criminal Ordinance. Ms. Notar said that as a result of feedback received they went through the Ordinance again and there are too many unintended consequences from the Ordinance they drafted. Ms. Notar said that if Council wants to extend the time after Council hears from the public and after the public hearing closes, that Council should choose Option 1. • Ms. Notar said that the Leesburg Police Department (LPD) recommended retaining the permit section. She said in the Ordinance there are specific prohibitions and then there are exceptions, for instance church bells or emergency vehicles, and then there's a permit for amplified sound. LPD says it is easier for them to enforce and gives the person who holds the permit notice. She said it allows LPD to know when amplified sound is occurring. Ms. Notar said the disadvantages of the permit, which can be discussed if Council makes a decision to continue to have her work on the Ordinance, is that the Town Manager's Office spends a lot of time issuing these permits and is a hurdle for the businesses because they have to come in every weekend and get a permit. • Ms. Notar said a speaker last time noted that there are other things in the Ordinance that are allowed until 10:00 p.m. which include yelling, shouting, and singing, which are prohibited after 10:00 p.m. She said she provided these examples to show that 10:00 p.m. is in the Ordinance and is a common period of time for nighttime. Ms. Notar said that the Ordinance she drafted has 10:00 p.m. only for Fridays and Saturdays. She added that the Town Code is not set in stone. She said this is the logical step to have weekends go to 10:00 p.m. and stay at 8:00 p.m. for the weekdays. Ms. Notar said that this was staff's attempt to write the Ordinance the same way it would be if you didn't have a permit and it does not work. • Ms. Notar said she does not recommend it but if Council wants to get rid of the permit, she will re -advertise and work on it again. She warned Council that they tried to do this several years ago and it took seven meetings and there was a presentation in the Rose Garden. She said the process would take a long time. She said the way to fix it is to change the permit. • Maps were provided to Council to show the range of sound. She said those do not apply if Council retains the permit but the maps will be very helpful if Council decides to rework the Noise Ordinance. Ms. Notar said that the Ordinance would have to be completely reworked. 5 I Page COUNCIL MEETING October 22, 2019 Public Speakers: Andrew Herndon, Royal Street SE. Spoke to Council against extending the Noise Ordinance. He said normally at this time they would be reading and trying to go to bed. If there is music playing at MacDowell's they are usually pretty good about stopping on time but occasionally go over a little but whenever that's the case it makes it harder to go to bed. He noted that living next to a bar can get old and sometimes can interfere with watching television. Mr. Herndon asked Council to keep this in mind when they are making a decision. Mr. Herndon's son Heath spoke about the impacts of the noise and said he could not go to bed when he is supposed to at 8:30 p.m. Mr. Herndon said he sent an email previously to Council when it was karaoke night and while they are usually pretty good about it, he would prefer it not be extended. Julie Bolthouse, 410 Madison Court SE. Spoke to Council about music she hears from First Fridays outside and from within her home with windows and doors shut until 9:00 p.m. She said she is not opposed to First Friday and enjoys First Friday but wants to make it clear that she is impacted by the noise as it is now. She said she has heard MacDowell's on several occasions in the evenings. She said that there is a weird echo through their neighborhood and it is strange how the sound carries into her neighborhood. Ms. Bolthouse said she has a five-year old and a three-year old who go to bed at 8:00 p.m. and the music has made bedtime a challenge on those days. Her son has ADHD and any kind of sound makes it hard for him to go to sleep. She has used blackout curtains and strict bedtime routines to help him sleep regularly but it is very difficult when the music is playing outside the window and he can hear it. Ms. Bolthouse has never called the Police with noise complaints so she is not one of the 12 complaints against MacDowells or any of the other ones. She said she also enjoys First Fridays and chalks up some of it to living in close proximity to downtown. She said she regrets her decision not to complain because as it stands, the lack of complaints has indicated to Council that an extension of the period of time for outdoor amplified music and the elimination of permits may be a good idea. She not only worries about the existing venues but also is concerned about Virginia Village's application which is currently being considered next to her neighborhood. She said the application includes a possible beer garden and with music and entertainment. She asked the applicant at a community meeting if this would go on into the evening and he said it would. She said this matters to the residents of Harrison Street, Madison Court and King Street as many of the homes are within 100 feet of the property line. She said this includes the Madison House which is an assisted living apartment complex for the elderly. Ms. Bolthouse said they will potentially have to deal with music into the late hours of the night even though their homes have been there for decades. She said if she understands the Ordinance it seems that the residents may even be dealing with it past 10:00 p.m. if they are within the 100' setback. She said she doesn't know what happens at 2:00 a.m. and whether it's ok for them to be impacting the residents if they are within 100'. She said she is within walking distance to a 6 I Page COUNCIL MEETING October 22, 2019 dozen breweries and bars. She said she did not move to Leesburg for that and has watched them be built around her. Ms. Bolthouse said that the life that has come to downtown Leesburg is nice and is supportive and she enjoys the gift shops, the restaurants, the entertainment, the occasional beer but it is not fair to push out long-established neighborhoods and residents. She understands mixed use is difficult. She has a Master's in Urban Affairs and Planning so she understands that there is a balance that has to be achieved. She said for that reason she asked Council to retain the current Noise Ordinance standards or develop standards that address these concerns. She seconded what staff has said that the first option at least alleviates some of her concerns about the 100' setback. David Groy, 16 Wirt Street. Spoke to Council about the Town Code paraphrasing that excessive sound and vibration or serious hazard to public health, welfare and quality of life and the people of Leesburg and other businesses have a right to and should be ensured an environment free from excessive sound and vibration. He said with this in mind he asked that Council not diminish the strength of the Noise Ordinance. He said as a resident he is in favor of economic development, the vibrancy of downtown and outside music but that music should be confined to the venues that provide it. Dr. Groy said all of the venues that play outside music have small outside areas. He said they should be able to provide music for their patrons and was in favor of this but it should not be plainly audible to businesses or residents that are choosing not to be at their venue. He said it is important to note that the last time Council tried to make changes to the Ordinance, one of the Council Members heard from all of the businesses downtown that did not want this. They did it quietly because they didn't want to get out into the public with this information. Dr. Groy said that the last time there was a push to diminish the Noise Ordinance, there was a comment by one of the Council Members who is no longer on Council that said if you don't have more amplified outside music the restaurants will fail. He said obviously that has not been the case because they are flourishing and they have done so without changing the Noise Ordinance. Something else Dr. Groy asked Council to consider is with all of the mixed -use developments that are coming to be down by the bike trail and in the center of Town behind the old Loudoun Times Mirror, that there are going to be many more families that are going to be residents of the community. Dr. Groy said that already this Noise Ordinance is presently working for businesses and residents and while it will be a benefit for a few restaurants it is going to continue to have a lot more unhappy citizens and increase the discord within the community. He said that he believes the Police are going to be spending a lot more time following up on complaints. Dr. Groy said he went to the Ida Lee Planning Workshop and that it was a wonderful event. He noted that there they talked about the growing trend that people want to live and work and recreate in their communities. He said this underscores that the growth that is coming to Leesburg that they maintain the ambience of downtown. He said that is what is bringing people to Leesburg. Dr. Groy said the restaurants downtown are flourishing with the current Noise Ordinance is effect. He does not think this discussion should be about economic development 7 1 Page COUNCIL MEETING October 22, 2019 but more for the quality of life for a lovely family -friendly Town. He said if Council feels like it has to make changes and he hopes they don't, that he asks that they don't vote on it tonight. Dr. Groy said he has been asked to be on a focus group for the Town Plan and the staff is doing a wonderful job and have brought in some consultants who are really sharp people. The whole idea is to get input from the community and noted he hosted an on -the -table event in his home and had 12 citizens there and he will be hosting another one in the coming week. Dr. Groy said there are others that are doing the same thing to get information from the community to develop a Town Plan that will be a guideline for decisions the Council makes. He said he didn't think passing something like this prior to having this come to completion is a wise thing to do. He said he feels like he would be wasting his time. Dr. Groy noted that what the Town is doing is a wonderful effort to put together the Town Plan to get everyone's input and he thanks them for that. Dr. Groy said he hopes Council does not change the Ordinance at all. John Burnham, 114 Slack Lane NE. Spoke to Council and said that it is important that residents address this issue. He said the downtown area in the historic district has changed quite a bit and he thinks it is important that they accommodate that change in a balanced and forward -thinking manner. He said he thinks it is great that it has become livelier. He said he enjoys a lot of the live music and understands that there are people that are being negatively impacted by it and that a lot of it depends on exactly where you live. Mr. Burnham said he lives very close by and especially on First Fridays but other times too that he hears the music when he walks his dog but he does not hear it when he is inside his house. He said it is actually nice to hear when he is walking. Mr. Burnham said that there are two things he was confused about regarding what was being proposed. One was increasing the hours in the morning from 10:30 a.m. to 8:00 a.m. He was not aware that a breakfast jam didn't involve strawberries but rather amplified music. Now he understands that it is a special event provision and that makes sense. The item he was most perplexed by is something that applies to the whole Town and they are talking about specific areas where people want to have this ability to have amplified music for extended time periods in the evening. Mr. Burnham said there are some places where that works and some places where it doesn't and some places where it affects the neighbors negatively and some places where it doesn't. He said that needs to be taken into account for whatever permit process is used or however they intend to zone it so that it doesn't create the bleedover into the quiet residential areas and not in other areas. He said he does not want to have neighbors partying until 10:00 p.m. or midnight every weekend. Mr. Burnham said that if you have neighborhoods where this is the scenario and quiet areas that are adjacent to that by buffers. He noted that on King Street it is buffered by this building from going over into the neighborhoods. He said there are natural and artificial buffers that make it more manageable if it is kept within a certain area. Mr. Burnham suggested that Council choose that approach. That way the businesses in that area who have built this model doing this can continue to be successful. If the amplified music is shut down the at 8:00 8 I Page COUNCIL MEETING October 22, 2019 p.m. it is really going to inhibit the vibrancy of the downtown area. He supports changing it 10:00 p.m. but also supports a permitting process that staff has and others have that will give more leverage and also gives people who have to be educated about what they are allowed to do and what they are not allowed to do. He supports doing it within a certain jurisdiction and not just Town wide. Mr. Burnham said if that the jurisdiction is crafted well and thoughtfully it will alleviate a lot of the bleedover issues. He said he thinks the reason that MacDowell's gets called on a lot is because it is open to an entire residential area. He said many of the other areas are closed in and are buffered by tall buildings and it doesn't bleed over. He thinks this needs to be taken into account in the zoning or however they decide to define this district or in the way they issue permits. Mr. Burnham thinks that this needs to be written into the Ordinance so people know what the situation is and what needs to occur sooner rather than later because there is a lot of residential construction going on downtown and people deserve to know what they are moving into and marketed appropriately. Alex Schoof, S. King Street. Spoke to Council as a resident of the historic district. He said he and his wife moved here a few years ago and love the Town and how much it has grown and how much it is changing. He said anytime they have relatives come from out of Town they tour them around Leesburg. They brag on the Town and try to convince people to move here and be closer to them. Mr. Schoof said they go out in the evenings and listen to live music and then they go home and close their door and he takes their six month old upstairs into his bedroom and they can still hear music. He said he had a really amazing moment a few weeks ago where he could actually sing along to the lyrics of a song that was being played downtown. Mr. Schoof said that he did not mean that he could hum along. He said he could hear actual syllables and noted that he lives five or six blocks from the establishment that was playing this music. He said he is very much in support of downtown growing and evolving and attracting new people and younger crowds and becoming a more vibrant place where more people can love Leesburg the way the rest of them all do but that it has to be balanced with quality of life for people who actually live there. Mr. Schoof said that the proposed change to the Ordinance as written doesn't make good enough trade- offs. He said he thinks that the Town needs to balance wanting to balance growth downtown with having good quality of life for the people who are living here. He said he did not want to push more work on the Town Attorney but he thinks that there are other ways that they could write the Ordinance that takes that balance better into account. He said the thing that is different from a public policy perspective is that you don't want to make a Noise Ordinance that is so restrictive that somebody having a loud house party or somebody who is watching a movie too loud gets kicked out of their apartment because that would be the wrong end of the spectrum and the wrong thing to do. He said with the growth that Leesburg is having and the new developments that are coming in that they cannot just hope that this problem isn't going to get worse. Mr. Schoof said hope is not a strategy and thinks that there needs to be some more thought and work around this to figure out the way to align incentives and to have a 9 1 Page COUNCIL MEETING October 22, 2019 permissive per se Noise Ordinance that allows people to not be come down hard on if they slightly violate it but at the same time address repeat offenders, especially businesses, where being a repeat offender is part of the cost of doing business for them. He said they really need to craft that into an Ordinance that protects the people that live here. Peter Cunningham, 11 Wirt Street SW. Spoke to Council in support of the nightlife and moved downtown from outside of Town about a year and half ago. He said they are empty nesters and do not have young children. He said at 11 Wirt Street they are not directly impacted by the music and noise so he has a different perspective than some of the other folks. Mr. Cunningham said his life is not going to change whether the Ordinance gets extended or not. If it gets passed there is a good chance that 9:55 p.m. on a Friday night you will see he and his wife out enjoying one of these live venues. He spoke more broadly on the subject that this is a wonderful Town in the midst of a really exciting growth period. He hopes that as a Town they don't earn the reputation of saying no. He hopes they earn the reputation on things like this that are reversible that Council earn the reputation of let's give it a shot and let's see what happens. Mr. Cunningham stated that if it doesn't work out it can be fixed. This is not something that is permanent. He hopes they adopt this type of attitude with everything so they encourage not just the economic development but the creative folks that come here so they don't go elsewhere. Roger Zurn, Crescent Place. Spoke to Council in favor of the proposed changes until 10:00 p.m. on Fridays and Saturdays only. Sunday through Thursday deserve to remain at 8:00 p.m. He said he spoke one other time on this topic but wanted to notate again that the Town is spending almost $800K on economic development. Mr. Zurn said the bulk of that is to revitalize the downtown area. He said they have seen over the last four -five months the vitality that has come back to downtown Leesburg and this is only the next step in that it costs no money to do this but encourages people to return to the Town. He added that it gives residents the opportunity to experience the nightlife that Leesburg has and certainly encourages new visitors to come and when they do they spend their money here and leave. Mr. Zurn said that this is ultimately what the Town probably wants and is why economic development is put into place. He added that certainly residents deserve the quiet of their home and 10:00 p.m. is a good compromise. Nobody is going to accuse Council of turning Leesburg into Motown or Rock City. He said it is simply a realization that there is certain compromise in terms of giving the Town some livability. He said 8:00 p.m. is puritanical and 10:00 p.m. is realistic. Anything beyond that is unrealistic. Linda Ifert, 205 Royal Street. Spoke to Council about her home on Royal Street. She said she bought her house in 1995 as a first time homeowner when MacDowells was a kitchen remodeling and design business. She said she knows that the Town has changed and has developed a nightlife that people enjoy. She said she enjoys it a lot of the time too. She said she likes to be able to walk into 10 I Page COUNCIL MEETING October 22, 2019 Town, eat at the many restaurant choices and enjoy the music that is available at many locations. Ms. Ifert said she should also be able to enjoy being at her own home where she wants to relax, entertain guests, have friends over, some of whom are musicians that would like to play instruments themselves. She would also like the opportunity to be able to play music that she wants to hear when she wants to. Ms. Ifert said that when live music is playing next door, the volumes are so high and the bass tones so intense that she can feel the vibrations inside her home. She said she cannot sit on her side porch to have a phone conversation because she cannot hear. She said if the hours are extended she will not have the freedom to enjoy her residence. She also thinks the sound should not begin before 10:30 a.m. unless there is a special event. Mornings are specials times that she enjoys a cup of coffee on her porch while listening to the birds sing. She said she does not think they should open the door to allow amplified music earlier in the morning. Ms. Ifert said knowing that her property is no more than 50' from the source of the music, she is dumbfounded to think that 100' would be proposed as the recommended distance for measurement. She would have to endure unbearable volumes of music and sound and there would be nothing that she could do about it. She said this is how she is interpreting the proposal and recommendation as it is written. Ms. Ifert said if it is different than that, she would be happy to know that. She said it needs to stay at 50' and noting that this is the distance to her property line. She said it is also very important to approve equipment that is tolerable and that is why a registration process should remain in place. She added that the location of the stage and equipment such as sub - woofers can greatly impact how sound travels, is heard and felt. Ms. Ifert said that she has already mentioned in other comments to Town Council that the time limits should stay at 8:00 p.m. especially if the volume can't be at a reasonable level for residents to have any quality of life or peace at their own house. She said she has been a good neighbor and tried to compromise and not complain and in order to get along and not cause problems has not called the Police. She sees now that this was probably a mistake because not calling there is no record of the times she has had to endure music when she didn't want to hear it and the volumes have invaded her life and home. She added that it has been quite an adjustment over the years and bought and moved in when there was a business next door that was open during day business hours. She said she had no idea how car door slams would annoy her until she heard them constantly from within her home until 2:00 a.m. She feels that she has been very tolerant and adaptable to the changes right next door to her rather than being driven out of this lovely quaint Town of Leesburg that she loves and loves being a part of. She said she is retiring in just over a year and wants to enjoy her home. She had plans of doing renovations and upgrades to her property and home and is now unsure if she should even spend the time or money to do so if she cannot enjoy it. She asked Council to consider her rights as a resident as well as the rights of all residents of the Town of Leesburg to enjoy the privacy and quality of life they all deserve to have on their properties and in their homes. Economic development should not be at the expense of the residents and implored Council to keep the current Noise Ordinance in place as it is. 11 I Page COUNCIL MEETING October 22, 2019 Mike Hansen, 120 Oliver Court, Purcellville. Spoke to Council against changes to the Noise Ordinance. He told Council that he is not a resident of Leesburg but lives in Purcellville. He said he has an engineering degree, is a musician and a friend of Ms. Ifert. He said she asked him to speak on her behalf. He said he first met Ms. Ifert on a cool rainy Monday in May at a Kentucky Derby Party. He noted her house is right behind MacDowells on Royal Street and there was no music playing. He thought it was a great location and very close to all of the businesses in Town. He said it is really quite a nice home with a beautifully landscaped backyard and a nice patio. He said fast forward to about four months later, he was there playing music for a dinner party and couldn't play on a Sunday evening until after the music next door ceased. Mr. Hanson said it was just too loud and overpowering. He said he plays acoustic music. He said at that point in time he began to realize that there was a problem with that property because as a homeowner himself, he would never want to own that property because he is a musician who has been playing music over 45 years and he would not be able to do that in his own backyard at any time while the music was playing next door. Mr. Hanson said Ms. Ifert informed him that there was a proposal before the Town Council to extend the hours of performance and the noise level standards going from 50' to 100'. As a musician, he thought that was absurd because the noise as it is now is overpowering on many occasions at her house. He said he thinks it is noteworthy to note that when Ms. Ifert and her friends go to MacDowells as paying customers they hear music there and they are paying for that music. When Ms. Ifert leaves that domain and goes next door to her house, that same music becomes noise pollution in her yard and she should not have to put up with that. He said he realizes that businesses would like to extend the hours of live music in this community as an amenity for their customers and to promote business, but in so doing they are impinging upon the rights of the homeowner who live next door to them. Mr. Hanson asked the Town Council to consider the repercussion of changing the current zoning laws, which in his opinion are already too lenient. He said when he has attended various locations in Town, including MacDowells and others, as a musician himself, he thought the music was too loud. He said as a customer he knew it was too loud because he couldn't stay there and had to leave. He did not think it's fair that businesses should be able to extend the hours of operation at the expense of the consumer who owns the homes that they are paying the tax base to support those businesses. He added that any homeowner in Leesburg with a house located near a live music venue should be able to enjoy the privacy and comfort of their yard without having to compete with noise pollution from a business that seeks to increase its sales while impinging upon the rights of residents. He said homeowners provide tax revenue to the Town for the purpose of protecting and ensuring their quality of life. To him it seems that the homeowners should be able to count on the Council to protect and preserve their quality of life. Mr. Hanson said as it stands now, there is an adversarial relationship being created and the residents are the ones who are are going to pay the price. He said all good business people realize that the business operates at a risk for the purpose of 12 I Page COUNCIL MEETING October 22, 2019 making a profit but the homeowners are the ones who are assuming the risk because they are giving up domestic tranquility and reduced marketability of their property. Steve Skemp, 202 Harrison Street. Spoke to Council is support of changing the Noise Ordinance. He said he works with MacDowells and noted that he spoke to Council several weeks ago. He reiterated some of his points he raised the last time he was here. He said it's been recognized by a number of speakers at the meeting and at other meetings that the character of Leesburg is definitely changing and in his opinion changing for the good. He said the downtown business district is emerging and thriving and significantly contributes to the tax base but these gains are not guaranteed. Mr. Skemp said a lot of these initiatives and efforts for what had been happening downtown has come at the initiative of private business and the Town itself can go ahead to help shepherd and protect this growth and to align the code to match up with the reality of what is happening here in Town. He said it's been pointed out there are no other local municipalities in the region that have as restrictive an Ordinance as Leesburg does at 8:00 p.m. He said he believed the County is 11:00 p.m. and other municipalities in the area with a core business district are usually around 10:00 p.m. He said he knows it is hard to reach a balance between commercial and residential interests. He said it is interesting to note on the presentation by the Town Attorney that the majority of noise complaints are coming from outlying residential areas and not coming from the business district itself and seems like that won't change no matter what happens with this ordinance in the bedroom communities. Mr. Skemp said that there are certain aspects of the Ordinance that can be considered again. He noted it doesn't necessarily have to be a Town - wide thing, but it can be changes made to reflect what is happening within a certain area, whether it's a historic district boundaries or possibly stay within Catoctin Circle to reflect the expansion of the downtown to what is going to be happening in the next couple years to Virginia Village and the planned development there. Mr. Skemp said a lot of it may be common sense where they had played before for later periods of time but just seems like this past year there were a number of complaints right after 8:00 p.m. when a number of residents and visitor alike had a look of incredulousness on their faces when they had to pull the plug at 8:00 p.m. If this is a great emerging business district then why would there be an Ordinance that would be fighting against that growth opportunity. He added in terms of the time of the year, that they are most interested in playing music outside during the summer months and in years like this when they have heat that is pretty excessive and not even cooling off until 7:00 p.m. or 8:00 p.m. that by the time they have to finish music is when they start to see the real congregation of people starting to come out and enjoy the nightlife that downtown Leesburg has to offer. Mr. Skemp said not to get into the politics of global warming but he said he was not so sure that the trend is going to be working the other direction any time soon for the next few years. In that respect, understanding that right now they are just talking about Friday and Saturday at 10:00 p.m. that there are other important nights they have for 13 I Page COUNCIL MEETING October 22, 2019 business on Wednesday's and Thursday's. He asked Council to consider between Memorial Day and Labor Day that they consider going to 9:00 p.m. on these days. He said just when the kids are out of school and people really are on summer vacation and during the middle of the heat may be something Council wants to consider. He said that Council has heard from a number of residents that are giving their concerns but he understands at the same time that they have not heard from the residents that have not arrived yet. He said that he would surmise that all of these new residents coming to Town, whether its Crescent Place or King Street Station or the new development off of Market Street, that these are residents who come to Town with a live, work, play attitude that is becoming so popular and it's going to attract a thriving and younger workforce that is going to sustain the community for the long haul. Phil Fust, 310 E. Market Street. Spoke to Council as a representative of Loudoun Brewing Company. Mr. Fust noted that he spoke at the last Council meeting. He said he has listened to what everyone has had to say and appreciates especially the people who live near where the music is loudest. He said he also appreciates that Loudoun Brewing was not on the list with any complaints. He repeated what he said the week before in that 8:00 p.m. just seems to be a little too early. He said when he was raising my kids who are now adults that they were going to bed at 8:00 p.m. when they were 8 years old. He said if you live in the commercial district and live near a venue where there's music that they maybe need to consider how you were going to deal with it when they purchased their home or how they are going to deal that now that you own your home. He said he could not make those decisions for them but does think that Council should extend it to Friday and Saturday to 10:00 p.m. He added that he was going to reach and ask for 11:00 p.m. and Council would come back to 10:00 p.m. so Council would feel like it won. Mr. Fust said 10:00 p.m. seems to be reasonable. He said he agrees with Ms. Notar about the officers walking up with decibel meters and a tape measure saying this is 100' or 50'. He noted that if people complain, the first thing he ask is can we just turn it down and the officer usually says if you just turn it down you can continue until the time. He said they do have a permit and continue to follow whatever the rules are. He hadn't heard the idea of between the holidays but thought it sounded pretty cool because that is obviously when they would have outside music as well. He concluded by asking Council to go to 10:00 p.m. Teri Simond, 404 S. King Street. Spoke to Council against changes to the Noise Ordinance. She said amending the noise ordinance to extend the nighttime period for amplified sound past 8:00 p.m. will only further decrease the quality of life for residents who live in the downtown area. She said because of the terrain in Town, sound carries really, really well. She noted she lives on South King Street, south of the bike path. She said as a result they are subjected to concert -level volumes, south of the bike path, five nights a week from at least one venue that regularly schedules outdoor music. She added that occasionally two are playing at the same time and are not playing the same music. Ms. 14 I Page COUNCIL MEETING October 22, 2019 Simond said that this is really bad. She said the Leesburg Police Department receives numerous complaints multiple times a week of music going past 8:00 p.m. She said she is one of those complainants because she does not want to hear the music in her house with the windows closed and the air-conditioning blowing. She said she understands that businesses desire for outdoor music to bring in more business have shown themselves to have no concern for the rights of the residents in the affected areas. She said she and her neighbors are subjected to loud amplified music for four hours a night five nights a week and unlike the patrons of the bars that they cannot leave when they are tired of the entertainment. She said they are there for the duration and there is no escaping the music even inside with the windows closed. Ms. Simond said many of these residents live in old houses that don't have the sound proofing that newer homes have. Additionally, she said they are restricted due to being in the historic district from alterations that may dampen some of the noise when they are indoors. She added that presumably the Town sees some value in having an historic district and yet Council is considering a proposal that could further erode the value and quality of life in the area. She said that as more bars open or expand in Town there is the potential for more outdoor amplified music and a further increased level of noise. Ms. Simond said as an aside that there doesn't seem to be a process in place when Police respond as there appears to be no consequences. She suggested that the existing Ordinance be amended to include a provision that would both levy a find and prevent the business from obtaining a sound amplification permit for a significant period of time once they have been found to be in noncompliance with the existing Ordinance. She stated that as you know and as Dr. Groy mentioned, at certain levels, noise can be detrimental to health, welfare, safety and quality of life of the inhabitants of Town and in the public interest noise should be restricted. She added that it is therefore the policy of the Town to reduce and eliminate where possible, excessive noise and related adverse conditions in the community and prevent unnecessary, excessive, harmful and annoying noises from all sources subject to its Police power. She said she hopes that the Council will take into account the quality of life of Town inhabitants and not amend the Noise Ordinance to extend the amplification hours. She said the only amendment needed is one that will enforce the current Ordinance. Richard Koochagian, 212 Loudoun Street SW. Spoke to Council about issues he has with changing the Ordinance. He said where he lives, he does get at least sound from two of the noted locations, the firehouse and the Thomas Birkby House and on occasion recently Delirium where they are starting to use amplified music on their side porch. He said that in and of itself isn't necessarily the issue. He said he is one of those who tries to get along and so he has not called but as others have mentioned maybe he should have. Mr. Koochagian said that the thing with both of those venues, at least the primary ones particularly the firehouse, is that they are not used every Friday or Saturday. He said Thomas Birkby some times of the year but overall that as a resident he appreciates the business aspects of it being able to bring these venues downtown and is why he has not called. He noted that when you have other venues on the other side of 15 I Page COUNCIL MEETING October 22, 2019 Town that have been represented here are really trying to do it and he understands why they are trying to do it but they are trying to have music throughout the whole week or particularly on the weekends, that there is no rest for the residents. They are getting it every night and on the weekends. If the Ordinance was extended throughout the whole week they can't escape it. He said that is a problem. Additionally, most of what is being talked about, is in the context of the existing businesses that are the source of the music. He said there is nothing that is limiting who is going to open up a bar or a venue so today it could be Delirium and MacDowells Pizza Kitchen and next week it could be somewhere else in Town, so you are going to have a lot of this as the Town grows and it's only going get more and more conflicting. He added that with the development coming downtown, particularly with the Times Mirror property and the Courthouse as well as what is going on on South Street, you are getting taller buildings and those taller buildings are going to reflect the sound in ways that we don't understand at this point. He said he can stand up on Liberty Street and hear MacDowells Pizza Kitchen because of the acoustics of where they are. He said it's not their fault they are playing their music but because of the terrain and the topography of the Town and then you are going to add buildings that the noise or the music is going to get louder and you are going to have more people downtown. Mr. Koochagian said he is not clear on the wisdom or the reality of a 50' buffer, a 100' buffer, or a 200' buffer. He said he has never known music to stop at a buffer at all and asked if they can show him how it is done great but he can walk on Liberty Street and hear MacDowells Pizza Kitchen on the other side of Town. He asked who is going to call or who is going to stop that music. He asked if the residents would have to call every time. He was not sure if there are other ways to do it but a sound buffer that is just a tape measure measurement doesn't seem to be realistic. He said what he is almost reading in the proposed Ordinance is if as a resident he thinks it's too loud as a resident, he's going to have to call and the Police are going to have to work it out which doesn't seem to be fair to them. He thinks 8:00 p.m. may be a little bit early but 10:00 p.m. is late and maybe there is something in between. He said he knows he likes to sit out on his front porch in the summer and when he hears the Birkby House or the fire station or others, he will have to turn up his music to be able to hear his own. He added that it is not just audible but the bass and subwoofers and that is more annoying of having them beating the bass where you don't hear the music but you get the vibration. He said he was not in favor of this at least at this point in time. He thinks one of the things he noticed that Ms. Notar mentioned was that she talked to the police and Parks and Rec and staff and what he didn't see in there was citizen engagement. He added that what Dr. Groy mentioned is that there are some steps going on now and he said he would at least wait until there is citizen input through that process to inform this decision. He did not think it is reasonable to say that the Economic Development Commission, noting that they used the word believes, extending the time will do something good. He said he believes it won't. 16 I Page COUNCIL MEETING October 22, 2019 Ryan Benton, Burrows Court NE. Spoke to Council as a resident of Exeter. He said that he is also a musician and that since the beginning of 2013, like the gentleman earlier, he is a government contractor engineer by day and like many others, a musician by night and on the weekends. He said his musical endeavors are supported by folks who he knows are not purposefully making their neighbors mad. He believed that is true throughout. Mr. Benton has noticed that in Leesburg that this ship has sailed. He said that economic development that had been encouraged here and that there are as many breweries in a two - block radius as an Irish village. He said that is going to encourage night life and that ship has sailed. He said they are already there and you can't take it back. He said that these folks are going to want to entertain people with live music or through another amplified thing like live sports such as the Nats playing on TVs outside on a nice night. He said given all of these economic developments that it seems like 10:00 p.m. on weekends is not unreasonable. He said maybe there is a compromise. Mr. Benton said there are a lot of people who are having problems with it but who they are not hearing from is all of the folks who are coming to Leesburg including from out of Town because now it's become a destination, just like old -town Alexandria or Frederick, Maryland have become a destination where people go to the restaurants and people go to hear live music. He said the proof of that and the encouragement of that by the Town has been closing the streets on First Fridays. He said it is a festival -like atmosphere with lots of music but he really wishes all of those thousands of people were here at the meeting to talk about what a great event it was and how it was great for the businesses and the Town. He added that it is getting more people to move to Leesburg because it's become such a destination for entertainment and for restaurants, for breweries and has become more metropolitan. Mr. Benton said he hopes there is a reasonable compromise. He added that he has noticed as a musician that the Noise Ordinance as it is now is very inconsistently enforced. He gave MacDowell Brew Kitchen as an example and noted that the Police will be there right at 8:00 p.m. and will listen to a few tunes before they ask you to shut it down because they are enjoying it but at Kings Court Tavern, that they will go to almost midnight with no repercussions whatsoever because nobody is calling on them and that it is just a matter of fairness. He said it just seems to be inconsistently enforced. He said he knows it seems to be impractical to use a decibel meter to remedy this situation but as a musician who uses a sound system that he is happy to turn it down if asked and go within the bounds of what the business and the neighborhoods need. He added that he thinks a decibel meter is good because there needs to be a way to prove what is loud. He noted it isn't just about amplified music or live music but can also be about other events that cause noise, like a sporting event where people are sitting outside watching a Nats game. He said when there is a complaint and no scientific evidence that it is loud within a certain number of feet, you can have conversation level talking seen as a complaint. He asked if the Town is going to discourage people at a downtown business from being outside and talking. He thinks there is some sort of reasonable compromise and thinks that the fact that the Town has already 17 I Page COUNCIL MEETING October 22, 2019 III 11111111111111 learned so much toward a vibrant downtown area lets you know what compromises need to be made because they can't reserve that. Brad Pierce, 905 Catoctin Circle NE. Spoke to Council and noted that the loudest thing near him is the Tuscarora High School. He said he can hear the announcements and the warm-up music for all the football and soccer games but does not get all would up about it. He did say that he is a musician and plays music downtown too just as Mr. Benton does. He said he has had to look at four sad faced people at 8:00 p.m. and go hey we are outside and we have to stop playing. Their reaction is what kind of Town is this and how come there is not more vitality here. He said he has seen it from both sides. He said he has lived in Leesburg for 33 years and has finally seen Leesburg sort of build a core business downtown. He said he always thought the Noise Ordinance wasn't quite in keeping with other jurisdictions. Mr. Pierce said he is in favor of extending the 8:00 p.m. time to 10:00 p.m. and thinks it is very important. He said he has seen the effects of having to close the music down and people leaving and the business lost. He said he would like to keep the downtown vibrant. Council Comments: Council Member Dunn asked for clarification noting that they had heard a number of different things from the citizens that right now they have amplified outdoors until 8:00 p.m. and asked if indoors was also until 8:00 p.m. Ms. Notar said that under the current Ordinance any amplified music needs a permit. She said it doesn't even say indoors or outdoors but they enforce it that it is for outdoors. She said that for amplified music they are only talking about outdoor music and they can have it until 8:00 p.m. Mr. Dunn said amplified music is allowed indoors but that would fall under the clearly audible code. Ms. Notar said that was correct and that it would fall under Section 3 of the Ordinance. She said it would be it would be a violation if it is in such a manner as to permit sound to be heard across a residential real property boundary or through partitions common to two dwelling units within a building or 2) that in such a manner as to be plainly audible of a distance of 50' or more from the building in which it is located. She added that number three says or when the sound is plainly audible at a distance of 50' or more from its source. Mr. Dunn asked if that was only for amplified music or would that also apply to acoustic. She said that would be acoustic as well. Mr. Dunn said that it would be understandable that outdoors that clearly audible would be much easier to hear than if the music was inside. Ms. Notar said that was correct. Mr. Dunn confirmed that as long as it was inside that the music could go past 8:00 p.m. as long as it wasn't clearly audible regardless of amplified or not. Ms. Notar said that was correct. Mr. Dunn confirmed that what they are talking about is allowing a time extension which is what the recommendation would be and not getting involved with the indoor or outdoor. Ms. Notar said that was correct but noted that the permit is really for outdoor amplified sound. She said indoor amplified music would fall under section A. She added that the Ordinance is 18 I Page COUNCIL MEETING October 22, 2019 not written perfectly but if an indoor venue like Tally Ho has amplified music they don't get a permit. It is for the outdoor music is when business owners come and get permits. Mr. Dunn asked if he would be correct in assuming that technically outdoor music permitted by a decibel level could still be on but a clearly audible indoor music could be shut down. He clarified that if music was being played indoors and outdoors and if the clearly audible indoor music where a permit was only issued for the outdoors, then the indoors music could technically be shut down. Ms. Notar said that indoor music can be shut down under number 3 if it is plainly audible at a distance of 50' or more from the building in which it is located. He said that he believed he and Vice Mayor Martinez are the only two left standing from the discussion on this a few years ago. Mayor Burk interjected that she was there as well. Mr. Dunn said that there were discussions for almost two years that went on. One of the things that he had suggested but that they didn't do but may be an option now is that they do go with a decibel system and that it is music that is sustained for certain period of time. He said it is very tough regardless of what they decide and that he does not like where citizens have to be enforcers in helping the Police which means they have to call up but that it is a system that is in consideration for everybody and that it is manageable and fairly enforced. He said he also believes that it should be an Ordinance that affects not just the downtown but other parts of Town. Mr. Dunn said that he believes they do a lot for the downtown businesses. He said they do more for downtown businesses than any other part of Town. He said there are other businesses that if they knew they weren't getting as much as downtown businesses were getting they would be asking for more things. He said that he thinks there should be an Ordinance that is fair for the entire Town. He said the thing that he has seen is that the music should be there to serve the patrons and not there to serve as audible advertising. He said that if it is there to be loud enough to draw people to the business then he thinks that is where it imposes too much of a business' will on other citizens. He said he can say he does not live downtown and probably needs to get down to downtown more than he does but knows that after leaving a Planning Commission meeting one night that he came out the back entrance to the parking garage and was wondering where the parade was. He said he didn't realize they were having a parade that late at night. Mr. Dunn said that it wasn't a parade but instead may have been a karaoke machine over at Delirium. He said he rolled down his window because he knew this issue was coming up and with his car window open could still hear the music as far as Tuscarora Mill. Mr. Dunn said to him that it was a little loud. He said there was only one person sitting outside at the tables and Mr. Karaoke was singing away and he could hear him all the way down the street. Mr. Dunn said he thinks this is where the line needs to be drawn and that whatever Council decides is when service to patrons turns into audible advertising. He said there are all kinds of things they do to help businesses out and but thinks being so loud to say we are here is not necessarily where the Town wants to be. He is interested in hearing 19 I Page COUNCIL MEETING October 22, 2019 from the rest of Council and the questions they have but he is concerned about turning it up and if that is where they really want to be. Council Member Campbell said he appreciated all the comments and emails and private conversations he's had on this. He said they are in the middle of a Town process and are looking at the type of Town that they have become and the vision of the Town that they are going to be in the future. He said Council has already made some changes to this landscape adding more residents and adding more services and looking at the types of businesses that want to be here and what they bring that they don't have a complete picture of what all that means and all the impacts. He said to sit and say they have the wisdom to play with people's lives because that is what they are doing whether it is the investments they have made in their business, their homes, their families and their futures would be folly for Council to say that. Mr. Campbell said at the same time they have to have a process to have a path forward and it is not the wisdom of a decibel meter but it is a wisdom of a culture and a community that they really want to take a look at. He said he is not going to talk about the policy. He said he is in favor of how they make wise decisions about how they grow and it is not just based on 10:00 p.m. or 8:00 p.m. Mr. Campbell said sound doesn't stop at 8:00 p.m. and neither does life nor does it begin at 8:00 p.m. He asked how the Town is building something that maybe different in the historic community versus something outside of the historic community. Mr. Campbell said they thought they had a little bit of wisdom when they made a ruling about food trucks. He said somehow the rest of the community could have as many food trucks they wanted but the downtown is going to be preserved and protected. Mr. Campbell said to him that isn't a business decision but a protection issue. He asked do they want to protect downtown, the residents who are downtown, the businesses downtown and for everyone else it just doesn't matter. He asked if they were going to be situational. He said a policy can't do that and they have to make a judgement based on a lot of impact and input from the community. He said to him this goes beyond this Public Hearing and he would say that they have a lot more information to gather particularly from the Town Comprehensive Plan process to really look at what they are trying to create and what they are trying to do. He asked if they are trying to preserve some fun and good times and the businesses, the community and the value of living here and the investments that everybody has made. Mr. Campbell said absolutely and it makes sense to distinguish between indoor and outdoor music and makes sense whether you have seasonal outdoor music. He said that is just because of climate and conditions that no one is going to look at it. He also said it makes sense to have permits and it makes sense where they don't have permits. Mr. Campbell said there is no absolute that he thinks has been presented that says right now that they have all the wisdom that they need to gather to make a decision. He said there is no doubt in his mind that there's going to be an impact to the residential community no matter what they do. He said there is no doubt there is going to be an impact on the business community. Mr. Campbell said none of 20 I Page COUNCIL MEETING October 22, 2019 them are forecasters of what those impacts may or may not mean. He said there are things that can be done and he has asked this Council to consider at various times why do they have to go all in and why they can't move slowly and deliberately. He said that could be golf carts in the streets and asked why Council can't try things and do projects and why can't they do projects or pilots or test and then modify as they need to as they grow. He said the comments that were made about the growth that is going to happen downtown and business and structures and people that he anticipates that they will be back looking again at noise and traffic. He said businesses even have a capacity of what they can serve. He said it makes sense to look at this and they are going to have to make some decisions that will come down to votes but to him it is not going to be about what is popular or what is political but rather it be about rationality and what makes sense. He said there is some more input that needs to be gathered. He said there is some more responsibility that they may ask upon the Town's Police Department but need to be sure that is what they want the Police Department to do. He said they are fortunate to live in a community where they are not chasing mothers down the street on a regular basis but they still don't want their very valuable and well trained Police Department chasing down noise complaints. If that is what they are bringing to Leesburg on the weekends and the community that they are trying to serve then they may want to think about how they decide to use the Police Department. Council Member Fox asked if the Town Ordinance were to change if it would be a Town wide Ordinance or if it was only for downtown. Ms. Notar said the Ordinance is written for the entire Town. Ms. Fox asked if it was lawful to pick and choose certain areas. Ms. Notar said it would be if the Council wanted to change the Ordinance to divide from commercial to residential areas then it would be lawful. Ms. Fox asked what if commercial and residential overlap. Ms. Notar said that is usually done through boundaries or decibels. She said the last time they went through this about five years ago they had a hybrid that used both decibels and boundaries. She said they think they wrote it to the point where if it was a commercial establishment but went over a residential boundary that they were in violation or that the decibel had to be a certain level so that it could go over the boundary but it was at a lower decibel than really loud. She said that is why they had the presentation in the Rose Garden so that Council could see what those decibels were. Ms. Fox said regarding the 100' expansion that some speakers were not quite clear about it and asked Ms. Notar to clarify this. Ms. Notar said that is part of the Ordinance that she is not advising Council to pass because there are unintended consequences and problems with the 100'. She said it was an attempt to make the Ordinance reasonable because right now it is 50' even with amplified music. She said those graphs show Council how far 50' goes but it may be what Council wants to continue with. She indicated that the 100' was larger than the 50' but felt it didn't impact many more homes. Ms. Fox said that there are parcels of interest noted on the map. She said she didn't see places like Delirium, Side Bar, Loudoun Brewing, 21 I Page COUNCIL MEETING October 22, 2019 King's Court Tavern, and Black Walnut. Ms. Notar she only picked the entities where there were complaints. She said those depicted were the top complaint getters so that Council could see them but noted that they did not list every commercial establishment in the Town. She said they could but did not do it for these purposes. Ms. Fox said that the reason she brings that up is because there is a lot more going on downtown than what is being shown and Mr. Koochagian alluded to Delirium and so did Mr. Dunn. Ms. Notar said to remember that the Town is complaint driven. Ms. Fox said she is going back and forth on so many items and noted that there are so many things that are supposed to be cut off at 10:00 p.m. She noted she lives near a high school too and listen to the games and the announcements and the bands and everything and that is reasonable. She said she moved close to a high school and expected that. What she said she did not expect is that she lived in a neighborhood where there was a wedding venue that was in a neighboring area but was in the County. She said they were subject to County restrictions and she lived in the Town. Ms. Fox thought that the music was right in her backyard. She said sometimes you don't know how the music is going to affect any one place. She added that it could be coming down a hill, blocked by a building. She said you just don't know and that they are not in control of that. Ms. Fox said if they made some sort of revision and extended the hours she wouldn't want it to go to holidays. She said she is not in favor of decibel but is in favor of plainly audible so people could complain if they need to. She said the 100' requirement should be nixed. Ms. Fox said that there should be enforcement and there should be consequences. She said in her opinion they never enforce it. Ms. Fox said the Town Plan process was not something she thought about and thinks it is wise to incorporate this and is something that needs citizen input as well. She said she would be happy to incorporate this type of issue into the Town Plan process and that is where she stands. Council Member Steinberg said this is a very interesting discussion and said that what he suspects is going happen is that they will be forwarding this to a future Work Session as there are still too many questions that need to be answered both in the initial formation of the revision of the Ordinance and the lack of answers to certain questions. Mr. Steinberg asked Ms. Notar about the permitting process and why it is on a per event basis versus a six month versus an annual. Ms. Notar said that she can't answer that. She said it is how the Ordinance was written and she was not involved with it. She said she believes the Ordinance was taken from Blacksburg and that it is a time period and the permit holder asks for the days that they need it. Mr. Steinberg said it seems to him that the permitting process is as much about the permit holder understanding what their obligations are on an ongoing basis as it is in actually acquiring the permit. He asked if it should become a less often occurrence, then everybody comes out to a good because not only is there less staff time, but the business owner also has to spend less time acquiring permits. Mr. Steinberg said as long as they understand that they understand what their obligations are that it is certainly a possibility. He said the surging 22 I Page COUNCIL MEETING October 22, 2019 success of the downtown of the last couple of years is absolutely a testament to the ingenuity and entrepreneurship of the business owners. He also pointed out that this is a very important quality of life issue for the residents. He said where he takes issue with anything that the petitioners said and he doesn't like to do this is to offer that in many cases the residents were here before the businesses. He said it is not a case of someone moving in next door to an airport and suddenly wondering where the planes came from. He said this is an instance of someone buying a house 20-25 years ago and now they are dealing with a situation that is well outside of their control. He believes it is very important that the Council look at this and see how they might better deal with it. Mr. Steinberg said some of the responsibility has to fall on the business owners. He said if the Town does not want the Police Department to have to be dealing with this on an ongoing basis with their meters, then he offers that part of that responsibility can become part of the business. He said he has a little bit of a background in theater and sound and knows that when bands set up in different venues that the sound levels can be radically different. He said he also knows that outdoor venues sometimes create the greatest challenge in terms of quality of sound because sound travels. Mr. Steinberg asked the musicians if someone gets a complaint and then the levels can be turned down, then why can't the levels start at a lower point to begin with. He said it occurs to him that you can go on the Internet and buy a decibel meter for about $100. He said this is necessarily where they would go but what if the business owners themselves could take basic readings at their property lines prior to the band getting going full swing. He added that if the bands could take into consideration that bass notes do travel much further and deeper and they go through buildings instead of reflecting off of them that maybe the bass player and the bass drum gets muffled and the bass player toned down a little bit so that the overall levels come down. This is so the residents have an easier time of it. Mr. Steinberg said everybody recognizes that Leesburg is a changing demographic. He said over the next couple of years he is sure that this whole process is going to play out and some people may absolutely move on and businesses may flourish and thrive and they will settle this whole thing out. He said that he would suggest that they move this to a future business meeting with more input from residents and perhaps something that involves business owners and the musicians alike to have an understanding of what their needs are along with the residents will probably be a good way to go. He said this is how he would opt to move forward. Vice Mayor Martinez said that this was discussed a while back but that Council needs to really understand what they did in the past and what they are doing today. He said that in the past there was a move from citizen plainly audible where the citizen had a voice in whether or not the sound was too loud to decibel meters. He said the problem with that is it takes the citizen out of the equation and if the businesses were within a certain decibel they would continue on and the residents had no input on the impact of that sound. Mr. Martinez said Council kept it plainly audible and he fought for keeping it plainly audible so that the residents could have input. He said that 23 I Page COUNCIL MEETING October 22, 2019 input is for the residents to call the Police Department. Mr. Martinez says that everyone talks about if they want the Police to be doing that kind of thing. He said of course not but if it is part of the Town and how things are done then that's part of their job for community and working with citizens and businesses in trying to find a good solution at that particular point in time. He said over those five years everyone will agree that the downtown has really grown and what he finds ironic is that when he got on Council 2002 that one of the biggest complaints was that they didn't have enough walking traffic or venues for people to come in and have a restaurant or a couple of beers. He said now they have breweries all over the place and all kinds of other things and now some people are upset because we have too many people. He said there has to be a balance of progress and satisfying the citizens. Mr. Martinez said he agreed with Mr. Steinberg that he has a feeling that this will be moved forward and what he would like to do is ask the Town Attorney and staff to look at a trial period where maybe what the Town can do is maybe next spring and summer have a trial period and see how this works with the plainly audible which gives the citizens a chance that if they have an issue with the sound they can contact the Police and the Police can put this on the metrics and stats and at the end of the trial period they can have a point of reference for citizens input and businesses in trying to find a way to work together. Mr. Martinez said the problem with enforcement is that they can sit there and do things and give a business a ticket but what kind of penalties can they impose to make businesses understand that they are serious. He said those are things that also need to be discussed. Mr. Martinez said that he is looking at the sound ranges of 50', 100', and 200' and asked what is really feasible in some of these neighborhoods. He asked if they will really have the ability to restrict the ranges in certain localities. He said he knows MacDowells is by a lot of different residences. He asked if they could do that where it won't impact the residences past 50'. He reiterated that these are questions that need to have answers. One of the reasons he is ok with going to a Work Session to get these questions answered is that they are pretty much at the end of the outdoor season. He said that Council has time to work this through because he is personally in favor of the 10:00 p.m. on weekends. He does know that they have to listen to the citizens and get their input and work with the businesses and get their input and try to find a happy medium that will work for everybody and that a trial period with some of the range restrictions might be an alternative. He said when they talk about decibel meters that the problem is that is in an instrument that has to be calibrated. He said the Police may have a calibrated decibel meter. A citizen may not have one or a business may not and they are all different. He asked which one they go by. He said that he knows that they are not going to give the Town Police a decibel meter unless it is in the Ordinance. He says now they have two different competing people with those kind of instruments. He said they do have a unique mix of residents and new businesses. He said if they want the Town to grow they are going to have to work together and there has to be some give and take between the residents and the businesses 24 1 Page COUNCIL MEETING October 22, 2019 and what they can do. He is out of time but will talk to staff about a few more things. Mr. Martinez thanked everyone for being here and hopes that they can come up with some solutions. Council Member Thiel thanked everyone for coming out to voice their opinions. He thanked the Town Attorney and Town staff that have worked tirelessly on this issue. Mr. Thiel said that everyone is here because they love Leesburg. He said the way they go about this is going to affect either businesses or homes. He said they need to be careful and do their due diligence. He said it sounds like they may be pushing this to a Work Session. Mr. Thiel said that there is no denying that they have changed economically as a Town and that the downtown has drastically changed in the last five years from an antique/boutique to an economic nightlife environment. He said that is in part to a lot of local businesses and bars that have provided that. He said it is his job to hear from the residents but also from the businesses. Mr. Thiel asked because they are talking about a small number of businesses if there is a chance that they could extend the permits instead of having the businesses coming in every weekend if there would be a possibility to buy a permit for two weeks or a month at a time. Ms. Notar said that was possible and noted that there is no fee for the permit. Mr. Thiel noted that it looks like they are getting rid of the 100' sound range. Ms. Notar said that was correct and should not be considered. Mr. Thiel asked if currently someone plays until 8:00 p.m. and then they have an acoustic band where music can still travel if that was permitted within the 50' radius. Ms. Notar said for 50' that was correct and falls under a different portion of the Ordinance that she read earlier regarding musical instruments where they are in violation if they are in such a manner that they can permit sound to be heard across a residential real property boundary or through partitions common to two dwelling units within a building or in such a manner to be plainly audible at a distance of 50' or more from the building in which it is located or 3) where the sound is plainly audible at a distance of 50' or more from its source. Mr. Thiel asked the Police Depaittiient how when they come up to a bar that is clearly violating the Ordinance how they determine the 50' perimeter. He asked if they use tape measures. Lt. Shaw said generally the officers don't use tape measures although all of the officers do carry tape measures in their vehicles. He said 50' is an easy distance as it is approximately 21/2 car lengths. He said they usually don't have to get to the point where they are measuring. He said for the most part the reason why there has not been people who have been charged with this Ordinance is that when they go to the businesses, they cooperate with the Police. They note that they got a call from a house down the street that the music is pretty loud and ask them to turn it down and they have had cooperation. He said if it does get to a point where they do have to go back a second time, usually they turn it off and haven't gotten to the point where they have actually had to cite people. Mr. Thiel said that there were 49 complaints and asked if those were from the Leesburg PD. Lt. Shaw said that those were pulled from their data. Mr. Thiel asked if that was for a year or if it was since January 1. Lt. Shaw said he used data from August 2018 to 25 I Page COUNCIL MEETING October 22, 2019 approximately September 1, 2019. He said that happened to be a year back from when they first started discussing it. Mr. Thiel asked why the Leesburg Police was against using the decibel device. Lt. Shaw said it was for the same reasons Ms. Notar described. He said they would have to have calibrated equipment and they would have to maintain the equipment to ensure it is calibrated. He added that it becomes a challenge in Court just like with a breath machine with a DUI. He said that is the first thing an attorney is going to challenge is if the machine is calibrated and if they were trained to operate it properly. He said that you also get into a position where a private citizen or business owner can purchase their own equipment and then you have a challenging reading. Mr. Thiel said it muddies the water and agrees. Mr. Thiel said he does agree with some of his colleagues that repeat offenders should have some sort of punishment whether they work that out in a future meeting. He said he is in favor of pushing back the Noise Ordinance to 10:00 p.m. and noted that they are changing so much as a Town that it is actually hindering a bunch of the businesses. He said even Town staff has mentioned and the Economic Development Commission that it could have a positive impact on the Town and generate multiple avenues of revenue growth. He said that is something to look forward to. Mr. Thiel asked what the County Noise Ordinance is currently. Ms. Notar said that they have a combination of decibel level and plainly audible in different districts. She said Chief Brown worked on the Loudoun County Ordinance. Chief Brown said that when he was with the County this issue was a thorn for him. He said he wrote the law enforcement side of the Ordinance when he was with Loudoun County and they are separated. He said there was a commercial, fixed data centers, and barking dogs which is actually a separate Ordinance and loud music that is not decibel driven. He said he was highly against decibel driven for the reasons that Lt. Shaw stated. On the zoning side for data centers, commercial industry they use decibel rating and that is a zoning function there and barking dogs and regular complaints, car exhaust, engines racing, is the enforcement side on the law side. Mayor Burk asked if she remembers correctly when she was on the Board of Supervisors was that it was 11:00 p.m. Chief Brown said it has been a while but also believes it was for 11:00 p.m. Mr. Thiel said he would like to push this to a Work Session as it seems most of his colleagues would agree to iron out some of the details of juggling the balance between helping the businesses and not hindering local residences that are affected by the Noise Ordinance. Mr. Thiel said he was in favor of the Special Events change. Mayor Burk thanked everyone for coming out to speak. She said this is one of the more difficult issues that Council deals with. She said they want to be fair to all concerned. She said she certainly is a huge supporter of the businesses and feels very strongly that they have made such an investment in the Town and that they really appreciate it. Mayor Burk said she is also very appreciative of the residents who have also made an investments in their homes in the Town. She said she thinks there is a compromise that they can come up with. She said she doesn't think that they are ready yet and that they 26 I Page COUNCIL MEETING October 22, 2019 need to have an additional meeting on this so that they can get some additional information. Mayor Burk said she was not sure what they were going to do tonight so she had prepared some amendments to offer that they can talk about at the meeting but one of them was the enforcement aspect of it. She said that if they have an issue that is constant they have to solve the problem with education and with the ability to follow-up on it. She said that is something that she will be bringing up to the meeting if they should do that. Mayor Burk said she thinks there is a big difference between acoustic music that is much less penetrating then amplifying music and that is one of the things they need to work with in regards to how to make it work. She said that she lives behind the Safeway and she can hear music on certain nights and afternoons and has entertainment in her backyard. She said she is quite a distance away yet can still hear it especially from MacDowells. She said she understands the issue and the complaints and where they are driven from and the impact and that it is not their choice. She said that there are things that can be done to work with the businesses to make them happy and get the residents to a level of peace that they would expect at this point. The public hearing was closed at 9:06 p.m. MOTION On a motion by Council Member Thiel, seconded by Mayor Burk, the following was proposed: To move discussion of this item to a future Work Session to discuss further options. Council Comments: Mayor Burk asked when the meetings for the Town Plan will be over. Mr. Boucher said that he was not certain but that this would be something that would be important in the Town Plan. Council Member Thiel asked if the meetings would be over before the end of the year. Mr. Boucher said that there are meetings that are set up to occur before then so he said that he imagines it will be a component of this. Mayor Burk asked that this be tied into the motion. Vice Mayor Martinez asked if this needed to be done through a motion. Ms. Notar said that is usually what is done if the Council wants to move it to the next meeting or direct staff to do other things like wanting it to be a part of the Town Plan. Mr. Martinez asked for an amendment to the motion that when it does happen that it all be prepared for the next outdoor season which would be April if they can make sure to work on it before then. Mayor Burk certainly said that was the intent and why they asked for it to be in the Town Plan. 27 I Page COUNCIL MEETING October 22, 2019 MOTION2019-197 On a motion by Council Member Thiel, seconded by Mayor Burk, the following was proposed: To move discussion of this item to a future Work Session to discuss further options and to tie it to the Town Plan update which should be included by April 2020. The motion was approved by the following vote: Aye: Campbell, Dunn, Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk Nay: None Vote: 7-0 c. TLOA-2019-0004; Amendments to Article 3 of the Zoning Ordinance to Address State Proffer Law Changes; TLTA-2019-0001; Amendments to the Town Plan to Address State Proffer Law Changes The public hearing was opened at 9:08 p.m. Mr. Brian Boucher gave a brief presentation on the proposed amendments. Key Points: • Council initiated amendments to the Town Plan on April 9, 2019, to undo restrictions put in place in 2017 to deal with changes at the State level in regard to proffer legislation. He said this year they made changes that are prompting this proposed action. • The intent is to take out all of the things put in about restricting residential proffers in 2017. • The draft Ordinance and Resolution are aimed to change this. • Mr. Boucher recapped that the Planning Commission had seen this item the previous Thursday and held a public hearing. The Planning Commission voted 4-0-3 to recommend approval of these amendments. • Mr. Boucher provided a quick history that in 2016, the General Assembly added a new section dealing with proffers —proffers for residential rezonings. The intent was to protect developers against local government who abuse the rezoning process to get more proffers than are justified by a residential rezoning. He said with the changes of 2016 dealing with residential rezoning, the Town had major concerns with it and shared those with most jurisdictions in Virginia. One of the changes that was concerning of the new law said a locality cannot accept or request any unreasonable proffer. Mr. Boucher said that if an unreasonable proffer was suggested by the developer and the Town accepted it, that it could later be called an unreasonable proffer and the Town could get sued for that. He said they also changed the definition 28 I Page COUNCIL MEETING October 22, 2019 of what was a reasonable proffer. He said back in 2016 they usually proffer reasonable conditions during a rezoning. He said now the Ordinance is much more specific. Mr. Boucher said the third thing they did is that there was an old legal presumption that when Council acted on something, on a legislative application, that it was acting reasonably. He said the presumption of reasonableness was with Council. He said this actually changed it and if someone challenged a proffer as unreasonable, that now the presumption was that the Town had acted incorrectly and had to show by clear and convincing evidence that the Town had actually acted correctly and there was no unreasonable proffer involved. He said there were new remedies added that if a developer should sue and win that they could get fees back and the cost of their lawyer back. Mr. Boucher said on top of that they could get their rezoning and the unreasonable proffer could be struck out. So there would be nothing for that proffer. He said it was pretty concerning. • Reasonable conditions existed before 2016, then in 2016, a proffer whether on site or off site was deemed reasonable only if it mitigates an impact that is specifically attributable to a new residential development or use. He said even more stringent was that off site and cash proffers for public facilities like transportation, public safety, schools and parks must meet the specifically attributable requirement plus the development must create a need or identifiable portion of a need for one or more public facilities improvements in excess of existing public facility capacity at the time of the rezoning. • Mr. Boucher said this was a very stringent standard of what the Town has to prove and limits what the Town can ask for during an analysis of a proposed residential rezoning. He said it is fairly restrictive. • Mr. Boucher said the good news is that it had an escape clause in the 2016 legislation for exempt areas. He said is does not apply to any area that is considered an approved small area comprehensive plan and that is defined in State Code and the other one is it doesn't apply to existing residential rezoning filed for or approved before July 1, 2016 and that is most of the Town. • In response the Town did three things: amend the Zoning Ordinance to prohibit proffers for residential areas outside of the exempt areas. The reasoning is that if they have to follow this standard they don't want to do it because the Town doesn't want to get sued because they think someone suggested a proffer that they later found unreasonable. He said the Town protected itself by doing that. The two other items were to exempt the Crescent Design District and make it a small area comprehensive plan. Mr. Boucher said they did that in July of 2017. They did the Ordinance improvements in July 2017 and the third thing was to amend the Town Plan to exempt the primary remaining tracts of land attractive to residential rezoning through the Eastern Gateway District Small Area Plan. He said in other words, make that a small 29 I Page COUNCIL MEETING October 22, 2019 area plan and if you do this it means that this is exempt and like 2016 never happened for negotiating proffers. Mr. Boucher said the Town has not yet completed the Eastern Gateway District Small Area Plan. • In 2019, everyone was talking about the proffers because there had been some stagnation and there were not as many residential rezonings getting approved in Virginia. He said they got together and compromised and quoting from one of the sponsors of the Bill that the law stopped every locality across the Commonwealth from communications. Mr. Boucher said he meant between developers and residential rezonings. • The Bill that was adopted does not completely overhaul the 2016 law, but it does make several important changes. He said he told Council that it had language about accepting or requesting that really stifled their ability to negotiate with people because if somebody accidentally said the Town would like you to proffer this and then it is deemed to be unreasonable and doesn't meet the definition again they could challenge a denial of a rezoning. Mr. Boucher said they got rid of this which is a major change. He added that they kept the new proffer standard for what is a reasonable proffer for a residential rezoning. He said they also kept the legal presumption if they are challenged then the Town has to prove it is innocent. He said they also kept the remedies available to developers that they get fees and potentially cost but the good change and the thing that they got rid of was that before they couldn't talk about proffers because it was dangerous and now the Town can. Mr. Boucher said that now they can actually tell them to give the Town something that is really unreasonable and they cannot use that to sue to Town. Mr. Boucher said the only thing now is that the Town has to require an unreasonable proffer that if the Town turns down a rezoning because they didn't give the proffer to the Town that doesn't meet that 2016 standard that is what they have to prove. Another good thing is if the developer offers the Town that under the State Code would be unreasonable but signs the proffer and gives it to the Town, they cannot come back to the Town later and say it is an unreasonable proffer. If signed and submitted it is de facto reasonable. He said that is a big change because before the Town could accept a proffer the developer could come up with a proffer and offer it and then come back and say that they thought about it and now think that it is unreasonable and I want it back. Mr. Boucher said that is a major change. • Mr. Boucher said that the other good thing is that the escape clause is still there. He said if you can get something like a small area comprehensive plan it will be exempt. Mr. Boucher said in doing all of that that there is really only one major concern that staff has and perhaps the reason this was delayed in coming to Council. Mr. Boucher said he put all of this together in June but realized in looking at it that the Town had not met the third tenant that was worked on in 30 I Page COUNCIL MEETING October 22, 2019 2017 and that was that the Town put the Eastern Gateway into a small area plan and that they could negotiate residential proffers there like 2016 never happened. He said staff was cautious and felt we did not want to be subject to the unreasonable proffer standard of 2016 but we wanted to be able to negotiate like they have for other residential rezonings there. Mr. Boucher said what that means is that Council has a resolution for the Town Plan that can be approved but in the actual Ordinance staff recommend that it be given a future date. He said it can be some time in the near future so that the Council has an opportunity to adopt the Eastern Gateway District Small Area Plan because if Council does that, any residential rezoning that would come in there, noting that there are some large development companies that own land there, that when they come in staff can negotiate using the reasonable condition standard pre-2016 and not the unreasonable proffer standard directly attributable plus x must demonstrate it will create excess capacity in public facilities. Council Comments Council Member Campbell said the part that he thinks is attractive is that the Town has to justify what it asks for. If the Town is asking for lights or transportation, road improvements, whatever, the Town has to justify it and that the Town can't just ask for it based on a formula. He asked Mr. Boucher if they would have to talk about real impact and that impact has to be measured. Mr. Boucher said it is much more restrictive and that the Town has always had a reasonable nexus to the proffers the Town was asking for. What the legislation is saying is that it is not good enough it can't be reasonable nexus. That is needs to be something that needs to be more precise and will take more staff time and more expertise in cases and it limits the things the Town can ask for. He revisited the school capital facilities. Mr. Boucher said previously they have had a rezoning that is going to create 200 students. He said the Town could say this was adopted and this is how much per apartment and townhouse and the Town recommends you contribute that amount to defray the cost. He said that is luckily in an area that is exempt, but an area that is not exempt, the Town can't just say here it is. They have to ask the schools about the schools that would be serving these 200 students, what capacity does the school have. The developer could claim that capacity exists and doesn't have to pay a dime for these school students. He said the only thing he would have to pay for is the amount that they can show that is above excess capacity, which is what developers do desire. Mr. Campbell said he was not arguing with the standard either way because it is reasonable that they should pay for excess and not just for what the Town desires but the part with the Eastern Gateway District Small Area Plan asked if the Town was really gaining anything for it to be exempt. Mr. Boucher said this also goes to transportation proffers and they have many times through successful proffer negotiations gotten developers to give a whole road section and that would be building roads and getting a certain density but it's not a clear formula but is a 31 I Page COUNCIL MEETING October 22, 2019 negotiating tactic. Sometimes they get the developer to say they will do it. Mr. Boucher said that now if the Town wants a developer to do a road that road they are going to have come to up with a formula they don't have to assess the direct impact the amount of traffic that the developer is creating so that they get a percentage or a much smaller amount that the Town can ask for. Mr. Campbell asked why that was not reasonable. He said what got municipalities in trouble for was a lot of things were asked for unreasonably. He was not saying that Leesburg did this but that there were situations that did. Mr. Campbell said he was not worried how much more Leesburg can ask for but that they don't ask excessively so that they don't have to think about running afoul of any law. Mr. Boucher said that if the Town is exempt they are back to a different standard and one that was used for years. Mr. Boucher said it is a fairness and a reasonableness test. He said the concern before 2016 and it still exists if you are not exempt, is that as a Town if they use the State standard for what we are going to ask them for, that the Town needs to demonstrate excess capacity and developers will end up paying less in proffers. He said that was the intent of this. Mr. Boucher added that from his own personal standpoint, he has lived here a long time and sees things a little more philosophically and he has seen rezoning where he thought the Town got a spectacular proffer package and he has seen others where he's thought wow they made their money on the Town of Leesburg. He said if it was him he would rather go with the standard that requires less from the Town and let it be more of a negotiation. Mr. Campbell thanked Mr. Boucher and said he was going to push him and if the Town didn't get what is deserved it was his fault. Mr. Boucher said he felt that ways at times. Mr. Campbell said to encapsulate what the recommendation is, is that if Council passed this change that Council make it take effect on January 1. Mr. Boucher said that he put that in as a date because he was not sure how soon the Town could get the Eastern Gateway approved. He asked if the two processes are going to be tied together and they can exempt the Eastern Gateway District Small Area Plan until they have one. Mr. Boucher said that was one of the tenets that Council adopted back in 2017 and noted that this is what the Town did with the Crescent District and that they were able to get it for 200 school children and the Town said that they would like the developer to voluntarily contribute that amount to us. Mr. Boucher said that if a rezoning application was submitted today with a residential component then they could not do that. They would have to ask for something less. Council Member Steinberg said he was satisfied with Mr. Boucher's presentation and did not have any real questions and can fully support the staff recommendation. Mr. Steinberg apologized but he was with his family in California and would need to leave the meeting at this time. He thanked Council for allowing him to electronically participate. Mayor Burk wished Mr. Steinberg's sister a happy birthday. Council Member Steinberg left the meeting at 9:25 p.m. 32 I Page COUNCIL MEETING October 22, 2019 Council Member Dunn asked about reasonable proffers and the ability to take legal action for unreasonable proffers and the remedies for the developer getting costs. Mr. Dunn said all of those were things in existence prior to 2016. He said it may not have been written in Richmond law but the Town could not demand unreasonable proffers. Mr. Dunn said that if they did, the Town ran the likelihood of being sued. Mr. Boucher said that the standard became much tougher in 2016. Mr. Dunn said they wrote it out but it was a standard that would have to be enacted upon by the applicant. He said it wasn't the State that came in and said they were going to be suing them. It was the applicant that would have had to make the determination that the proffer was unreasonable and therefore I am going to sue you and I am going to sue you for the cost of doing the suit. Mr. Dunn said that could all have happened before the proffer law. Mr. Boucher said what is different now is the developers odd of winning now are much better now because before it was a reasonableness test. Now it is an excess capacity test for the public facilities and parks and public safety, transportation and schools. He said it is more defined so it is easier for them to sue because they have a tougher standard and a more defined standard that the Town has to meet. He said the remedies are now codified. Mr. Boucher said before that Mr. Dunn is right that in a case when it wasn't fairly debatable perhaps that they could get those things. Mr. Boucher said what is happening is basically saying that if they win one of these things the court could say what you will get potentially even the cost for prosecuting the suit. The concern about that in 2016 and the concern Mr. Boucher says he still has now is that it does have a little bit of a chilling effect on how you negotiate with proffers. He said it was kind of saying keep it more reasonable than you have in the past certainly but because so many localities acted like Leesburg, and Stafford was another locality that said they were not going to negotiate, on residential rezonings which promoted this change. He said the change took out the most egregious thing included was that they could accept a proffer that was suggested by a developer that was determined under the formula and the Town could be sued and lose. He said that can no longer happen but noted that the formula is still there and the definition of what is an unreasonable residential rezonings remains. Mr. Boucher noted that this only applies to residential rezonings. He said that they do have a standard in the Code that when you are talking to developers be careful even though they can't require an unreasonable proffer. Good news is that if a developer signs a proffer and submits it and it is unreasonable that the Town can accept it. Mr. Boucher said staff thinks the smartest thing to do is from a staff standpoint is the goal to make the Eastern Gateway not have any of the supply to their proffer negotiations with residential developers there. He said that is why they would say try to do what Council was hoping to do back in 2017 which is try and get the Eastern Gateway exempt and the rest is academic. Mr. Dunn said the word Mr. Boucher used was that they would have to be more accurate in their numbers. He asked why being inaccurate would be a good thing. He said that Mr. Boucher said that the Town would get more and Mr. Dunn said he 33 I Page COUNCIL MEETING October 22, 2019 was not sure that was a good thing either. Mr. Dunn said there is no guarantee that the Eastern Gateway would be done by January 1 and if everything Mr. Boucher is saying is so beneficial to the Town then they should actually be looking at what other areas need to be made small areas. Mr. Dunn said they should make small areas everywhere. He said when it comes down to it the Town is able to negotiate proffers, they have to be accurate with what they are estimating to an applicant and they can't be unreasonable. He said those were all things that existed in 2016 and after the law was created in 2017 and after the State repealed most of the law. Mr. Dunn said staff had no discussion when there were Work Sessions on it and there was no discussion about this eleventh hour explanation as to why they need to keep going with the old plan and East Market Street is hanging in the balance because he really doesn't think it is. He thinks it is because they need to be able to negotiate proffers and be accurate in their work in both situations and can't be unreasonable because if they were they would have been sued. Mr. Dunn said he does not see any reason other than staff wanting to go down a particular path that he does not think that they need to go down. Mr. Dunn said in fact, one of the things that Council has asked for specifically for is stronger design standards and staff came back and dragged it out. He said that Council was asked by a head staff member to put this off again yet it is one of the things that Council really wanted to see done. Mr. Dunn said that Council is saying it wants this repealed and instead of it being repealed it gets extended and it seems like it is being extended because it is what staff's will is and not the will of the people which Council is representing and staff is the servant. Mr. Dunn said he really didn't see how they were doing much different in how they are going to be in by repealing it that they are going to be putting themselves in tremendous jeopardy. Mr. Dunn said that if they were they should not even be discussing this that they should be discussing what areas of Town where Council needs to make small area plans and not repeal the legislation at all and go under the old system of not being able to negotiate proffers unless it is under the old system. Mr. Dunn said the old system that was created got the job done and got the State to turn over the legislation which was bad and it did that. Mr. Boucher said it only did portions of it. Mr. Dunn said that now he would like to repeal this and move on and start negotiating proffers. He added that this isn't the only one and that there were other properties involved. Council Member Fox said that the proffer law was changed July 1 and that staff is asking Council to implement the changes on January 1. She said that she was trying to understand that gap and why staff would want that. Mr. Boucher said the changes that occurred in 2016 did change the way the Town negotiates proffers. He said it is not exactly the same as it was before 2016 but if it wasn't for localities like Leesburg, who put restrictions in on residential properties that forced the change. He said when they changed the law in 2019 they did not change everything. He said that back in 2017 what they knew is the Town does not have to deal at all with the 2016 legislation for residential rezoning if the Town uses that escape clause if the areas of the 34 I Page COUNCIL MEETING October 22, 2019 Town are exempt. He said they can be like this never happened and that the Town can negotiate as it was before 2016. Ms. Fox asked if what they are trying to do is wait until the Eastern Gateway District passed. She said that has been going on for years. Mr. Boucher said that is his understanding but that it's at the Planning Commission for re -certification on the phasing issue and then is going to come back to Council. He said if there are other issues that they are unknown to him. He added that in his professional opinion, and that is a considerable number of years, that the reason this legislation was created was to lessen the ability of localities to negotiate residential rezoning proffers. He said they improved it but they haven't done everything. Mr. Boucher said it is true and that it is up to Council if staff should be more precise and ask for less on the proffers that it is up to Council. It is Council's prerogative. Mr. Boucher said staff is advising that it would be wiser to wait and not be subject to the 2016 legislation at all. He said that it was said that there has been no real change in unreasonable proffers and that they had it back in 2016. He said they did but there was a difference and a reason localities reacted to that change in the State law. He said the change wasn't done to codify what already existed. He said he thinks it was done to send a message to localities that when they are negotiating residential proffers you are not going to get as much. Ms. Fox asked what applications are before Council that they may be missing out on proffer negotiations. Mr. Boucher said that there is one that has been applied and it is the Westpark rezoning. He said it is a rezoning that has come in and because the Town has a restriction on proffers they could not proffer anything and could not proffer anything until this was changed. He said that from a staff standpoint, it is a residential rezoning so the standard they use would have to be much more precise and limited on what the Town would ask for for proffers for public facilities because that is what the law said back then. The Town has to show this is a direct attributable need plus it has to be shown that it is above excess capacity of the schools and the police and everything you already have. Vice Mayor Martinez said that he understands why they did what they did and why they are doing what they are doing and he really has no questions. Mr. Martinez told Mr. Boucher that he appreciates his comments. Council Member Thiel asked what would happen if Council did repeal and go back to 2016 Ordinance and not just not follow this. Mr. Boucher said that because the 2016 law is there, if a residential rezoning comes in that has a residential component, as long as it is not exempt, that staff would have to use the standard that is in the State Code for residential rezoning that comes in after July 1, 2016. He said if Council repealed this then that is the standard that staff would use. He said that what staff is trying to point out is if there are some areas of Town where we didn't complete what we were trying to do in 2017, which was exempt them from this law at all because back in the day we had a standard that was more locality friendly and that is why developers wanted to get it changed. Mr. Boucher said that if they exempt the Eastern Gateway then this is the law they get to use when negotiating proffers. If not they would be using this standard which is much 35 I Page COUNCIL MEETING October 22, 2019 more defined and again if somebody challenges the Town, the burden is against the Town and somebody claims that you did it because you had unreasonable proffers, that the burden of proof is on Town and always run the risk of having to pay for everything. Those rules are codified. He said he did not think it wise as staff to run the risk for that unless the Town is trying to get rezonings submitted sooner in which that case it would be alright. He said a developer could always agree to an unreasonable proffer and can sign it. Mr. Boucher said that if someone is really willing to work with the Town then they don't have to worry about any of this but if someone isn't it is a different standard that they would have to use and they were hoping not to have to use that standard. Mr. Thiel asked Mr. Boucher if the Town is trying to get the Eastern Gateway exempt from this. Mr. Boucher said that was correct. He said it was started in 2016 so it's taken a quite a while. Mr. Boucher said that they were trying to do that as a Town so that this legislation would not apply to it. He said that would only leave a few other places in Town where they really couldn't exempt where they are going to have to live with the 2016 law. He said there are some places in Town where they cannot exempt. He said the Westpark area is one of them. He said there are a few other properties in Town like above Ida Lee there is some residential area. Mayor Burk said she didn't have any questions and thought that the presentation was very clear and understandable. Public Speakers: Julie Bolthouse, Piedmont Environmental Council. Spoke to Council as a representative for the Piedmont Environmental Council. She said she works in Fauquier County and has dealt a lot with this amendment. She read from an Op Ed that she wrote just to give you an idea of what she thinks this amendment means: The amendment did nothing to mitigate one of the primary concerns which is that localities will be left paying for needed capital improvements. The proffer amendment only allows a locality to collect proffers when the projected impact goes beyond the existing capacity of the infrastructure. The County cannot include past approvals that have not been built or the need to replace aging infrastructure when determining the existing capacity. So how can this play out in the real world. She said first developers will likely avoid developing in districts that are at or over capacity. In districts with available capacity numerous development proposals where increased density could be approved going well beyond the existing capacity of the schools in that area. However, those developers will not contribute any funds to offset their development. So imagine there are 20 seats available in a school district and five developers come in at once with separate proposals with 19 students projected in each of their proposals. None of them would trigger the capacity for that school. In other words, 19 plus 19 plus 19 plus 19 plus 19 equals 19 in this world and that is not reasonable. The problem with that reasonable is that it is not reasonable. It is just a silly phrase lawyers use to make it sound like it's reasonable but it's not. Once the development is built and the schools are beyond capacity and facing aging infrastructure issues, the County will be under significant public pressure to fix the problem. They will have no choice but to burden all taxpayers to do so and if another school is built and has 36 I Page COUNCIL MEETING October 22, 2019 available capacity then the cycle starts again. She said that was from an Op Ed that she wrote and wanted to point out that the Town staff is completely right and if Council is representing the residents and the taxpayers that she wants Council to get the best deal they can. She said she works with developers every single day. She said they are good people but want to make a profit just like anyone else and Council is negotiating on their behalf. She asked Council to please be strong and negotiate well on their behalf. The public hearing was closed at 9:42 p.m. MOTION On a motion by Council Member Dunn, seconded by Council Member Campbell, the following was proposed: To move forward with the repeal of TLOA 2019-0004 & TLTA 2019-0001 effective immediately. Mr. Boucher noted that there is a draft Ordinance in the agenda packet and noted that the effective date listed as January 1, 2020. If Council desires a different start date then it should be noted. Mr. Dunn said he wanted to make it effective immediately. Mayor Burk asked what effect this would that have on the Eastern Gateway. Mr. Boucher said it would mean that if Council approves this and if a developer came in in the Eastern Gateway with a residential rezoning today, staff would have to use the 2016 legislation. The Eastern Gateway would not be exempt. He said they have not gone back to pre-2016 there if this goes into effect immediately. Council Comments: Council Member Dunn said this should take effect immediately and they don't have any assurance that the Eastern Gateway is going to be done by January 1. He said that there are proffers that could be discussed with the Westpark that they can't because Council self-imposed this and there's nothing in the way Council operated pre-2016 and thinks that staff has done a good job in how they have negotiated items for the Town. Mr. Dunn said he thinks that the law that Richmond created did not say you could not negotiate proffers. He said it did not say that you could not negotiate good and reasonable proffers or that you had to be more detailed than you were in the past. Mr. Dunn said that all it says is that you cannot be unreasonable and that nobody goes into business in an unreasonable fashion. He said he thinks moving forward it allows the Town to get back into the proffer negotiation business like they were prior to 2016 and that there is a public need out there for it. He said just to stop it for the Eastern Gateway is shortsighted and he thinks that there are still items that they would like to see from staff such as the design standards that was being pushed to come forward faster that they can use in other areas. Mr. Dunn said he felt it would be more beneficial to move forward on this to allow the Town to go back into the 37 I Page COUNCIL MEETING October 22, 2019 proffer negotiation business especially since this was requested by Council much earlier in the year and now it is being requested by staff to put off until the end of the year. He said if this is so beneficial to the Town they should not even be discussing this and discussing where else they can be doing small area plans and just take the map and create small area plans throughout if this is going to be a much better way of negotiating. Mr. Dunn said that he believes that both are the same but it was the will of Council to repeal this and that is the direction they should go. Council Member Campbell said he seconded this because he does believe it is important that Council has conversation about these issues. He said he believes it was short-sighted but not short-sighted in responding to the action that was taken to amend how they work with proffers. He said it is short-sighted to believe that it didn't have a chilling effect. He said it did have an effect on developments and what it is that the Town thought it needed and what the developers could also add. Mr. Campbell said some course correction every now and then is helpful. He added that he did think that they did take into consideration the small area plans and looked at the ones they did want to protect and preserve at the time and did that. Mr. Campbell said they did not say they needed to make the whole Town a small area plan to continue business as usual. He said that he believed Council had that proper consideration and that they had the proper conversation. He noted that it doesn't always come down to the right results that people want to see because they don't get four votes but did note that they did have those considerations and now the consideration of what they need to do with the Eastern Gateway Small Area Plan to immediately enact the Ordinance would be wrong because that would be shortsighted in terms of the Town's future and if all the conversation about the Eastern Gateway District Gateway is correct about economic development and what it should do to not include that area would be extremely shortsighted for Council to make that decision. Mr. Campbell said he believed it unreasonable to immediately enact this particular legislation and motion as it is. He noted that even though he seconded it, he would not be supporting it as is unless it at least extends to January 1 to give the opportunity to capture the Eastern District Small Area Plan. Council Member Fox asked about the small area plan for the Eastern Gateway District. She asked why they would revert to the 2016 if in fact the Town came to some sort of resolution why one would affect the other. She clarified her question by saying right now the Town does not have the small area plan so it would be subject to the pre-2016 but if it did become a small area it wouldn't be subject to 2016. She said it could happen but hasn't happened yet and the Town doesn't know if it is going to. Ms. Fox asked why the Town is limiting itself. Mr. Boucher said that it is a matter of perspective. He said he did not believe the Town is limiting itself. He said if the desire is to get residential rezonings in soon and to negotiate if the stricter standard created in 2016 then that's the Council's prerogative. He said that staff was of the position that the Council was still in the position it was back in 2017 that the Town wanted to put the Eastern Gateway in a small area plan so they would be in a better position to negotiate proffers with residential developers. Mr. Boucher said that is what it 38 I Page COUNCIL MEETING October 22, 2019 boils down to. Ms. Fox said that it seems like six of one and half a dozen of the other to her. She said that either way the Town is going to be able to negotiate proffers if it becomes a small area plan the Town will have that opportunity and if it doesn't, they will have that opportunity. She said to her that she thinks it is a win win. Mr. Boucher said the difference is which law you have to follow. Vice Mayor Martinez said he agreed with Council Member Campbell that this needs to be brought into effect in January and not immediately. Council Member Thiel asked if there is anything stopping the Town if this is passed tonight from making the Eastern Gateway exempt later. Mr. Boucher said that it could be done later but the question is that if a rezoning comes in before it is made exempt, which law they would have to follow in regard to proffers. He said it is his understanding that if someone comes in before it is made exempt then they get the law that is in effect at the time it comes in which means that they have more stringent standards that they would be using when negotiating for public facilities proffers. Mr. Thiel said he would like to start making proffers as soon as possible. He noted that the Eastern Gateway is a big project as everyone knows so he wants to make sure it is done correctly and done right. Mayor Burk said she is concerned about the Eastern Gateway and wants to make sure that the Town can get the best that they can out of it from it and the way to do that is to give the Town time to finalize it and get it in. She said that part of the reason that it is being held up is the design standards that they are trying to create. She said let's get it done and make sure it is place so that it will apply to it and they can work to get the best for the residents. Mayor Burk noted she was in favor of the January date. Mayor Burk noted that the motion was to accept the new wording with the exception of a date. She said the date would be immediate. Mr. Dunn confirmed with Mayor Burk and Council Member Campbell that the original motion included that this would be immediate. Mr. Campbell made a friendly amendment to make it effective on January 1, 2020. Mr. Dunn did not accept the friendly amendment. MOTION On a motion by Council Member Campbell, seconded by Vice Mayor Martinez, the following was proposed: To move forward with the repeal of TLOA 2019-0004 & TLTA 2019-0001 with an effective date of January 1, 2020. Council Comments: Council Member Thiel asked hypothetically if it would be possible to ask for an exemption of the Eastern Gateway if that would be possible and still enact the Ordinance today but hold off on the Eastern Gateway. Mr. Dunn said that would be akin to spot zoning and it doesn't go over too well. Mr. Boucher asked 39 I Page COUNCIL MEETING October 22, 2019 if what he was suggesting was make it applicable in other areas but not in the defined Eastern Gateway area. Mr. Thiel said that was what he was asking. Ms. Notar said no that she did not think so. She said the small area plan that is exempt in the Ordinance has specific criteria. She said the gateway district is a confined area that could be exempt. Ms. Notar said that it has to be enacted in the Zoning Ordinance for Council to avoid implications for even the new statute. Mr. Thiel asked if they can enact the Ordinance everywhere else except the Eastern Gateway. Ms. Notar said no that it must be defined small areas. Council Member Dunn said that right now Council does not know when the Eastern Gateway will be approved. He asked what Council could negotiate today for proffers in that area if the application were to come in the next day. Mr. Boucher said if there was a residential component they would not be able to negotiate proffers. Mr. Dunn said that is the risk that there is if this is put off until January. He said that applicant could rush to get this done and there is not a single proffer the Town could accept because the Town is living under the old guidelines. Mr. Boucher said that they would have to mitigate any negative impacts that they are creating. He said they don't accept residential proffers but that means that they would have to mitigate all of their impacts on site and that is what the Council would use to deny them. He said that was one of the reasons for restricting proffers because then the developer has to mitigate all of his impacts even the public ones onsite. Mr. Boucher said it was really done to discourage residential rezonings. Mr. Dunn said he was not trying to debate Mr. Boucher but that starts to smell of unreasonable. He said that is smells of proffer negotiations that force proffers that they cannot do and that is why he says it is so important to move forward on accepting Council's ability to negotiate proffers immediately. Mr. Dunn said that staff never brought this forward for a reason to not do this when it was first discussed. He said it is only being brought up now and believes that the reason is to try and influence other properties like Westpark that they could be negotiating proffers and thinks that this may free that up because they can't do anything there either. Mr. Dunn said that he highly ask Council to consider giving them the ability to negotiate proffers because the application could come in and it would come in under the tent with no ability to negotiate proffers today. Council Member Campbell said that they are not running on a fear basis and if anyone was going to rush then they would have already rushed over the last 18 months if they wanted to get something in if they wanted to eliminate their ability to actually proffer something the Town thought was of value. Mr. Campbell said that what he is proposing is two months and that it is up to Council to look at the timeline of what is in front of them. He said the Eastern District Gateway Plan has been in front of Council for a while and they have mitigated some of the concerns and that it is back in front of the Planning Commission. He said that they need to look at the schedule of how they bring it forward. Mr. Campbell said he does not think they are at an at risk situation to accept any application that does come before them if it did before January 1 as it will be in a decision making capacity before January 1 in terms of any approval. He said the opportunity to mitigate any concerns Council has with the applicant 40 I Page COUNCIL MEETING October 22, 2019 has always been a part of Council's process or at least asking reasonable questions. Mr. Campbell said he did not think Council needs to operate as if something unreasonable is going to happen where the Council is going to be held hostage as a Council and have to make a decision based on anything Council puts before it. He said that is not a reasonable concern. Council Member Fox said that they should have changed the legislation back on July 1 and should have been lock step with Richmond for the whole time and supports doing this immediately. Council Member Thiel asked if there has been any discussion with the applicant or the developer of the Eastern Gateway Plan about this Ordinance change. Mr. Boucher said he has had one brief discussion on this and his impression is that they would like the Council to repeal this so that they can operate under the 2016 proffer standard. He said that was the impression he got that they would like Council to repeal. The motion failed by the following vote: Aye: Campbell, Vice Mayor Martinez, Mayor Burk Nay: Dunn, Fox, Thiel Vote: 3-3-1 (Steinberg absent) Mayor Burk called for a vote on the original motion by Council Member Dunn. MOTION On a motion by Council Member Dunn, seconded by Council Member Campbell, the following was proposed: To move forward with the repeal of TLOA & TLTA 2019-0001 effective immediately. Council Comment: Council Member Dunn said that it has been said that Council should not be dealing with this on a fear basis but thinks that this is what staff has brought this to Council for. He said that Council should fear the change ahead of them and yet the issue is that without passing this they will be dealing with no proffers and then when the Eastern Gateway isn't passed by January or Council feels now that it is forced to have to accept whatever terms come before them to get the Eastern Gateway passed so that it can be fit underneath the old proffer regulation that Council is limiting itself tremendously by not being able to negotiate proffers prior to January 1. He said there is the possibility that they are going to hear from staff that since it didn't get done by January 1 that they need to get this extended again. Mr. Dunn said that they are going to hear that if they don't get this done in time, that they need to hurry up and get it done on time and that is going to force them to make decisions on the Eastern Gateway District that are not in Council's best interest. Mr. Dunn said that they have already tried to get design standards done and that Council can't get those out of staff. He said to 41 I Page COUNCIL MEETING October 22, 2019 him that it is a bigger issue that staff is choosing to do something that they want to do and not something that Council has a desire to do. Mr. Dunn said that there was a vote that got this to a point that they would consider repealing and staff has now come up with an eleventh hour explanation to try and sell the idea of not being able to do that. He said the biggest risk the Town has is not being able to negotiate proffers here or anywhere else in Town should an application come in and there is another application where they could be negotiating proffers and that is on Westpark. Mr. Dunn gave an example where there have been some instances where staff stands before Council where Council is asking for certain things and staff is saying no you don't. Mr. Dunn added that a few weeks previous at the Planning Commission, the Planning Commission was asking for the same things that Council was asking for when it comes to design standards in this area. He said he heard the Chair and the other staffer repeatedly tell the Planning Commission no that they did not want it. Mr. Dunn said that indeed they do want it and it went back and forth. He said the Chair of the Commission asked if anyone was listening to her. Mr. Dunn said yes they do want this and said it is discouraging when Council sets certain policies for staff to follow and staff decides and whoever they can convince to go otherwise to go against the policies of Council. Mr. Dunn said that is the discouraging part. Mr. Boucher asked if he could respond and said that he read the minutes of when this was initiated. When it was brought up that the language was going to change, while he was not present, the Town Attorney responded that she did not have any problems with it but that they would try to bring it forward. She said she did not believe it would happen on July 1 but that they would get the process going. She said that staff had not analyzed it yet and there could be some issues that come up. Mr. Boucher said what happened is that he was going to bring it forward to the Planning Commission in June and wrote the staff report then. He realized in writing the report that staff had not done one of the three things that Council said it was going to do in 2017. He as staff said that since the third things was not done and in April it was thought that the Eastern Gateway District would be done by July but there were some issues that came up with design and transportation. Mr. Boucher said his decision was that there was nothing in the minutes that it has to be done immediately and Council Member Dunn did say he would like to have it done by July 1. Mr. Boucher said that in doing that analysis that they had not completed the tenants of 2017 and his decision was not bring it forward until the Eastern Gateway District gets approved. He said later Council said bring it forward and staff did. Mr. Boucher said staff is giving Council its advice and Council has the vote and can do what it wants. Mr. Boucher said the best advice was don't do it now at this time but it is up to Council and they have the vote and are the people's representatives. The motion failed by the following vote: Aye: Dunn, Fox, Thiel Nay: Campbell, Vice Mayor Martinez, Mayor Burk Vote: 3-3-1 (Steinberg absent) 42 I Page COUNCIL MEETING October 22, 2019 MOTION2019-198 On a motion by Vice Mayor Martinez, seconded by Council Member Campbell, the following was proposed: To defer this item for a vote to the next Regular Council Meeting. Council Comments: Council Member Dunn said that he thinks they have already heard from the absent Council Member that he is in favor of staffs position. Mr. Dunn said that technically staff is recommending no change until January 1. He said there is no need to discuss this until closer to January 1. He said all that January 1 is setting a date when it will be automatically repealed but at this point they are still going under the old rules. He said he was unsure what there was to discuss and that they are in the no proffer business in Leesburg. Mr. Dunn asked for a point of inquiry of what the schedule is like for the next meeting and asked if this was for the Regular Business meeting or the Work Session. Mr. Martinez said it didn't matter what the schedule is for the next meeting. He said if Council wants it on the next agenda it will go on the next agenda. Mayor Burk confirmed that was correct. Mr. Dunn asked for another point of inquiry and reiterated that the wanted to know what was on the next Council agenda. Mr. Martinez said that was irrelevant to the motion on hand adding that it does not matter what is on the agenda if Council decides to move it to the next meeting regardless of what is on there now. Mr. Dunn said that was true but if there is already a large agenda, he may vote to go with the motion if they don't have a large schedule. Mr. Martinez said it doesn't matter if it is a long or a short agenda as he is attending for the duration to get business done. Mayor Burk asked Mr. Dentler for a list of items at the next Council Meeting. Mr. Dentler said the next regular session is November 12 and they have four Public Hearings scheduled, one is an award of an office lease which is not significant and they do have the Wee Garden Daycare which can be that night depending upon if they can meet all of the legal requirements. The motion was approved by the following vote: Aye: Campbell, Fox, Vice Mayor Martinez, Thiel and Mayor Burk Nay: Dunn Vote: 5-1-1 (Steinberg absent) 12. APPROVAL OF THE CONSENT AGENDA MOTION2019-199 On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the following consent agenda was proposed: 43 I Page COUNCIL MEETING October 22, 2019 a. Use of Tree Bank Mitigation Funding for Installation of Trees on Homeowner Association Properties RESOLUTION2019-160 Appropriation of Tree Bank Mitigation Funding to the Greenway Farms and Stratford Homeowner Associations Planting Projects b. Emergency Communications Center RESOLUTION2019-161 Authorizing the Town Manager to Immediately Proceed with Upgrading the Call Handling Equipment for the Emergency Communications Center at the Leesburg Police Station with an Appropriation from the Fiscal Year 2019 Unassigned Fund Balance The Consent Agenda was approved by the following vote: Aye: Campbell, Dunn, Fox, Vice Mayor Martinez, Thiel and Mayor Burk Nay: None Vote: 6-0-1 (Steinberg absent) 13. RESOLUTIONS /ORDINANCES / MOTIONS a. Evergreen Mill Road Widening Project Design Change Order MOTION2019-200 On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the following was proposed: RESOLUTION2019-162 Evergreen Mill Road Widening Project Change Order No. 2 for Design and Engineering Services The motion was approved by the following vote: Aye: Campbell, Dunn, Fox, Vice Mayor Martinez, Thiel and Mayor Burk Nay: None Vote: 6-0-1 (Steinberg absent) b. Business, Professional and Occupational License Tax MOTION On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the following was proposed: RESOLUTION Initiating Amendments to the Business, Professional and Occupational License Tax Provisions of the Town Code to bring them into Compliance 44 1 Page COUNCIL MEETING October 22, 2019 with State Code Requirements Applicable to Localities with Populations greater than Fifty -Thousand Council Comments: Council Member Campbell said that it seems like a simple request but that his understanding that even moving from a $20 fee to a $30 fee that they are still at a financial deficit situation. Ms. Haley said that was correct. Mr. Campbell asked why they would do that and why not do whatever the amount is that will make the Town not to be in a deficit situation. Ms. Haley said that this was to comply with State Code and is mandated by the State so Council is being asked to consider changing the State Code to be in compliance. She said that change is resulting in a negative revenue impact. Mr. Campbell asked if the State tells the Town what fee to set. Ms. Haley said the State set the fee level at a maximum and that the Town's current fee level is below that. Mr. Campbell asked if the maximum is $30. Ms. Haley said the maximum is $50 and that the Town's current rate is $20 and that Council is being asked to consider an increase to $30. Mr. Campbell said his question is why the Town is not considering $40 or $50. Ms. Haley said that if Council would like to consider other alternatives that is an option. Vice Mayor Martinez said that if Mr. Campbell was trying to make a friendly amendment to $50 he would go along with it. Mr. Campbell said that he is trying to understand the math first because it does not seem like the Town is in business to run a deficit offering business licenses. He said there is a theoretical problem with that in his mind. Ms. Haley said it is a license tax and is based upon the population so it is really impacting businesses with gross receipts between $50,000 and $100,000. Ms. Haley said they looked at other jurisdiction and tried to get an idea of what they are charging and that is where the $30 recommendation came from. She said that if Council is wanting to change it to increase it up to the limit of $50 it can do so. Mr. Campbell said he was looking at cost recovery and not subsidizing an area where the Town should at least be recovering the cost of issuing business licenses. Ms. Haley said she understood. Mr. Case said there is nothing preventing Council from setting this fee anywhere up to $50. He said Council could set it in the under $100,000 range anywhere it wants to set it. Mr. Case said they are splitting the difference and trying to recover half the loss due to the statutory change. Mr. Campbell said due to statutory change the Town finds itself in a financial deficit situation trying to do some cost recovery. He asked if it is possible to have a step motion where they do one increase this year and another the following. Mr. Campbell said philosophically as a Town they don't want to be subsidizing business licenses. He said that there is nothing not business about that concept. Mr. Campbell asked what an appropriate fee would be. He asked if it should be $40, $45 or if the Town will still be at a deficit if it is at $50. Mr. Campbell said he would like scenarios of possibilities rather than being stuck on $30 right now. He added that $30 may be the right step if it is a two-step process. Ms. Haley said they would have to go back and do additional analysis to look at what going up to $50 might yield. She said they did not look at that. She said as Mr. Case noted that they were trying to come up with a reasonable increase to help mitigate some of the 45 I Page COUNCIL MEETING October 22, 2019 fees. Mr. Campbell said he did not think it was a huge amount of money but does not think that taxpayers should be subsidizing businesses as a philosophy. Mr. Campbell said he would like for Council to wait on this item until they get that number so that they can reasonably say that he does not think $50 is out of the range of any business to have a license in Town. Mayor Burk asked Mr. Campbell if he was making a friendly amendment to ask Mr. Martinez and Mr. Thiel to defer this item until staff can provide additional information. Mr. Campbell said that was correct and that he would ask for a friendly amendment to defer because he is not sure the Town needs to do this at $30. The amendment was not accepted by Mr. Martinez. Council Member Fox confirmed that the staff was saying that the Town was running at a deficit and that it costs the Town more than $20 to produce a business license. Ms. Haley said that at the current rate for the flat fee, moving the threshold up from $50,000 will create a revenue shortfall of $25,000. Ms. Fox said that she would probably not support this. She said businesses pay all kinds of taxes and BPOL is one of them and that she thinks this is punitive to businesses. Council Member Thiel asked staff if they knew what they could charge to make up the deficit. Ms. Haley said that the Town can go up to $50 for the flat fee. She said staff would have to go back and analyze. Mr. Case said that $40 is going to generate approximately the differential to get you there. He said that it is not precise but with $40 would be close to revenue neutral. Mr. Thiel made a friendly amendment to bump up the amount of the license rate from $30 to $40 to make up the difference. Mr. Martinez accepted the amendment. The motion was amended to change the fee to $40. MOTION2019-201 On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the following was proposed: RESOLUTION2019-163 Initiating Amendments to the Business, Professional and Occupational License Tax Provisions of the Town Code to bring them into Compliance with State Code Requirements Applicable to Localities with Populations greater than Fifty -Thousand with a fee of $40 The motion was approved by the following vote: Aye: Campbell, Vice Mayor Martinez, Thiel and Mayor Burk Nay: Dunn, Fox Vote: 4-2-1 (Steinberg absent) 46 I Page COUNCIL MEETING October 22, 2019 c. National American Indian Heritage Month Proclamation (Sponsors: Mayor Burk and Council Member Thiel) MOTION2019-202 On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the following was proposed: I move to approve the National American Indian Heritage Month Proclamation to be presented at the November 12, 2019, Council Meeting. Council Comments: Council Member Thiel said his grandmother was born on an Indian reservation in Oklahoma so he is very proud to see his hometown represent the Native American culture in people. The motion was approved by the following vote: Aye: Campbell, Fox, Vice Mayor Martinez, Thiel and Mayor Burk Nay: None Vote: 5-0-1-1 (Steinberg absent, Dunn abstain) d. Diabetes Awareness Month Proclamation (Sponsors: Mayor Burk and Council Member Thiel) MOTION2019-203 On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the following was proposed: I move to approve the Diabetes Awareness Month Proclamation to be presented at the November 12, 2019, Council Meeting. Council Comment: Mayor Burk disclosed that the Anderson girls were in attendance at the meeting tonight to accept it because she had given them the wrong dates. She apologized to the twins publically and hopes that they will be back on November 12. The motion was approved by the following vote: Aye.• Campbell, Fox, Vice Mayor Martinez, Thiel and Mayor Burk Nay: None Vote: 5-0-1-1 (Steinberg absent, Dunn abstain) 15. UNFINISHED BUSINESS a. None. 16. NEW BUSINESS a. None. 47 I Page COUNCIL MEETING October 22, 2019 17. COUNCIL DISCLOSURES AND COMMENTS / ADDITIONS TO FUTURE MEETINGS Council Member Dunn asked if the Town was pursuing a parallel path in Annexation along with the BLA. He said that he thinks there were a number of Council Members that are of the understanding that this is what the Town is doing and was surprised to hear that they are not. Ms. Notar said they are not. Mr. Dunn said that this is something that he would like to discuss at a future Work Session. Ms. Notar said that when she means no, she means that an Annexation action has not been filed. It was the consensus of Council to have a future Work Session discussion on a parallel path of the BLA along with Annexation. (Fox, Campbell, Dunn, Thiel) Mr. Dentler noted that there was enough support to have this discussion but that it was staff's recommendation to hold that discussion in a Closed Session versus and open session for legal reasons. Mr. Dunn said that his request was clear that it was at a Work Session and that it warrants it. Mr. Dunn noted that in an earlier discussion staff decided to take their will over those of the citizens, especially the Council that represents them, and noted other examples where this has happened such as the H-2 Guidelines that were requested as a priority five years ago and never happened. Mr. Dunn said that there were changes that staff decided to make to the Starbucks pitched roof that was one of the guidelines and staff decided they would not go with a pitched roof because it would not fit in with the other area yet there are other pitched roofs all around where that is. Mr. Dunn said that he mentioned at the current meeting as far as direction for staff to move forward with Annexation but nothing was done. He said that Council asked for design standards by the end of the year so that they can be used in other areas and that staff did not want to do that and in fact they have been putting up a fight about design standards for the longest time and frankly he has no assurances whether they will ever see that. Mr. Dunn said that they asked for stricter design standards in the small area plan and that Council was told that they don't want to do that and to give the flexibility to the applicant. Mr. Dunn said that they want to have more stringent design standards and staff is saying no. He said as he has already mentioned that the Planning Commission was also asking for stricter design standards and they were repeatedly being denied by staff. Mr. Dunn said that this is not just the action tonight to overturn the will of Council and come up with an eleventh hour excuse about more stringent guidelines that they have to go by. He said that is just another example of staff deciding that they are going to do what they want to do and the will and the policies set forth by Council be damned. Council Member Campbell said he had no disclosures and said he thought it was a bittersweet moment with Mr. Mike Carroll about an hour before his closing. He said businesses and people move on and retire but this one was 48 1 Page COUNCIL MEETING October 22, 2019 certainly bittersweet. He wished him and his wife JoAnne and their family well. Mr. Campbell said that he attended the wake of Mr. Bill Turgeon, husband of Mrs. Jill Turgeon. He said they continue to pray for the family and friends. Mr. Campbell said they recognized the second anniversary of Solo Pizza. He recognized Indigenous Peoples Day and noted he had a frightening experience at Shocktober. He said it was his first time as a participant and probably won't go again but will certainly continue to be supportive. Mr. Campbell spoke about staff and accountability and think it is important and does believe and said many times about trusting staff but also believes that somehow staff has to find a way to engage better. He said that it may be up to Council to take the time to meet with staff and it may be on staff's part of not trying to second guess what Council wants and what Council needs and what they can tolerate. Mr. Campbell said that is part of the process and to him isn't reflective of whether or not there's trust or any level of integrity but sometimes it comes into question because of the timeliness of information and all of the information and all the full disclosures should happen and nothing should be help back. Mr. Campbell said at that point, they can reasonably talk about it and reasonably decide how they can move forward. He said that sometimes it does feel like information is not flowing as quickly as it could or should. Mr. Campbell said he knows sometimes things get missed and there's a lot of work that is going on so he is not going to make the assumption that somehow and sometimes it does go through his mind and he does make the assumption that something is being deliberately being withheld and it shouldn't be. He said he thinks he mentioned earlier that all of the agendas are about the Town and that individual agendas have no place. He said if there are individual agendas then he thinks they should be fully disclosed so that they can support or protect whatever it is that they think they want to accomplish. He said staff can't do it alone and Council can't do it alone and there is going to have to be some open areas of communication differently as they move forward. The issues are becoming more complex and they cannot be solved in one Work Session or in one Business Meeting and come to a vote and reasonably think they got it right. Mr. Campbell said there is a process and it was clearly demonstrated tonight looking at the Noise Ordinance. He said no matter how many years it has been worked on, there is a reason why it has been a number of years it has been worked on. It is either an attempt to get it right but you can't postpone it by voting no. He added that moving it forward doesn't always mean completeness as well. Mr. Campbell said that even going to a simple $20 BPOL fee that it isn't necessarily about the fee but what it means in having the information is really the real impact. He said he won't get into whether they are overtaxing but the reality is for him is that the Town should not pay for a license fee for the business and if the State imposed it and they always say they don't support any legislation that has these unfunded mandates. He asked if the State is doing things then how do they keep abreast of these laws because they are not inconsequential if they cost the Town money. Mr. Campbell asked that if it happens July 1, how they can get those considerations sooner. He said that he knows everyone is working hard and certainly thanks the staff for what they do. Mr. Campbell said this is not an 49 I Page COUNCIL MEETING October 22, 2019 adversarial relationship but that it has to be a little more open as they move forward. Vice Mayor Martinez said that he disagrees with the comment about staff and knows that they are doing their best and giving Council what they can but said that Council has to remember that there are seven Council Members with different visions and perceptions of what should be going on and what should not be going on and this should be taken into consideration when staff is making a presentation to Council. He added that they are trying to accommodate seven individuals. Mr. Martinez noted that Mr. Mikaeel Martinez Jaka received his Eagle Scout award and he congratulated him for achieving this. Council Member Thiel said disclosed he met with Mr. Larry Beerman regarding the Westpark property. He also said Let's Go Nats! 18. MAYOR DISCLOSURES AND COMMENTS / ADDITIONS TO FUTURE MEETINGS Mayor Burk thanked the Douglass Alumni Association for inviting her to their tea and said it was a lovely event. Mayor Burk judged the Monster Mash at the Village at Leesburg and said it was a very interesting event to see all of the kids dressed up. She congratulated Catoctin Elementary noting that they were recognized by the National PTA as being a school of excellence. Mayor Burk thanked the Board of Supervisors for making the motion to accept the BLA between the Town and the County and noted that is where the process is going. She said that is really where the Town wants to be at this point. Mayor Burk said she did the VDOT ribbon cutting and thanked Ms. Amy Bobchek and Mr. Ari Bagdasarian for hosting the Benefits Concert that was held and noted they did a great job. Mayor Burk thanked the Police for participating. Mayor Burk said in regard to staff that she has never had any problems dealing with them and if she has questions they are ready to answer them and will spend hours explaining and helping her understand. She said she has no issues and noted that the staff that they have at the Town is a group of people that are very dedicated. She said as Mr. Martinez indicated that unfortunately they have to deal with seven individuals that have a different view so it is not always easy and Council needs to make sure that they are communicating with staff and getting the questions answered before the meetings and during the meetings. 19. TOWN MANAGER COMMENTS a. None. 20. CLOSED SESSION a. None. 50 I Page COUNCIL MEETING October 22, 2019 21. Adjournment On a motion by Vice Mayor Martinez, seconded by Council Member Dunn, the meeting was adjourned at 10:32 p.m. 3_,_,-/( Kelly : rk, ayor Town of Leesburg ATTEST: (effiZe:&e21.? Clerk of Council 2019 tcmin1021 51 I Page