HomeMy Public PortalAbout2019_tcmin1112COUNCIL MEETING November 12, 2019
Council Chambers, 25 West Market Street, 7:00 p.m. Mayor Burk presiding.
Council Members Present: Ron Campbell (arrived at 7:07 p.m.), Thomas Dunn,
Suzanne Fox, Vice Mayor Marty Martinez, Neil Steinberg, Joshua Thiel (arrived at 7:19
p.m.), and Mayor Kelly Burk.
Council Members Absent: None.
Staff Present: Town Manager Kaj Dentler, Town Attorney Barbara Notar, Director of
Public Works Renee LaFollette, Economic Development Director Russell Seymour,
Information Technology Director Jakub Jedrzejczak, Director of Planning & Zoning
Susan Berry Hill, Director of Utilities Amy Wyks, Director of Plan Review William
Adman, Deputy Director of Planning & Zoning Brian Boucher, Deputy Director of
Utilities Patrick Moore, Senior Planning Project Manager Scott Parker, Senior Engineer
Anne Geiger, Senior Budget Analyst Cole Fazenbaker, and Clerk of Council Eileen
Boeing.
AGENDA ITEMS
1. CALL TO ORDER
2. INVOCATION was given by Council Member Steinberg.
3. SALUTE TO THE FLAG was led by Council Member Fox.
4. ROLL CALL Council Member Campbell arrived at 7:07 p.m. and Council
Member Thiel arrived at 7:19 p.m.
5. MINUTES
a. Regular Session Meeting Minutes of October 15, 2019
MOTION2019-206
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
minutes of the Regular Session of October 15, 2019, were approved by a vote of 5-0-2
(Campbell, Thiel absent).
b. Work Session Meeting Minutes of October 21, 2019
MOTION2019-207
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
minutes of the Work Session of October 21, 2019, were approved by a vote of 5-0-2
(Campbell, Thiel absent).
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COUNCIL MEETING November 12, 2019
c. Special Council Meeting of November 1, 2019
MOTION2019-208
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
minutes of the Special Meeting of November 1, 2019, were approved by a vote of 3-0-2-2
(Campbell and Thiel absent, Dunn and Fox abstain).
6. ADOPTING THE MEETING AGENDA
Council Member Dunn requested that section 17. Annexation Discussion be
removed from the agenda and moved to a Work Session.
MOTION
On a motion by Council Member Dunn, seconded by Council Member Fox, the following
was proposed:
To remove Section 17. Annexation Discussion from the agenda.
The motion failed by the following vote:
Aye: Dunn, Fox,
Nay: Vice Mayor Martinez, Steinberg and Mayor Burk
Vote: 2-3-2 (Campbell, Thiel absent)
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
meeting agenda was moved for approval.
The motion was approved by the following vote:
Aye: Vice Mayor Martinez, Steinberg and Mayor Burk
Nay: Dunn, Fox
Vote: 3-2-2 (Campbell, Thiel absent)
7. CERTIFICATES OF RECOGNITION
a. None.
8. PRESENTATION OF PROCLAMATIONS APPROVED AT THE
10/22/2019 REGULAR MEETING
a. Proclamation: National American Indian Heritage Month
Mr. Don Chapman accepted the proclamation and made a few remarks.
b. Proclamation: Diabetes Awareness Month
Miss Audrey Anderson and Miss Blair Anderson were unable to attend.
The Proclamations will be mailed to them.
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9. PRESENTATIONS
a. Town Plan Update Status Report on Public Engagement and Charrette
Mr. Matt Noonkester, President & Carolinas Office Leader, City
Explained, Inc., provided Council with an update on the multi -day, multi -event
Town Charrette and the Town Plan Update.
Council Comments:
Council Member Steinberg noted he had the opportunity to stop by and
have a conversation with Mr. Noonkester and they had a far reaching
conversation. Mr. Steinberg said it made it obvious the amount of work that was
performed and that there is still a lot of work to be done. He said they touched
on a number of topics and that Council will be discussing these in the very near
term prior to the end of the year including some at the current meeting. He said
it is a lot of work and thanked him for his efforts.
Council Member Campbell said that he knows this is a lot of work and
when it was first considered a while ago the question was why they would do a
comprehensive plan. He said he can appreciate that a comprehensive plan
requires a lot of comprehensive work but the Leesburg is a comprehensive
community with a very broad scope. Mr. Campbell said he liked the direction
that it is going and wanted to thank Mr. Noonkester. Mr. Campbell noted that
he has participated in some of the Planning exercises. He said he participated
more from an observer standpoint but thinks that it is important to note that the
public has been very engaged and he certainly appreciates the fact that they have
been willing to share all of their opinions. He said that the opinions are very
good to hear. He thanked Mr. Noonkester for the work that they are doing.
Mayor Burk thanked Mr. Noonkester and said she appreciated his efforts
and is looking forward to continuing the process.
10. REGIONAL COMMISSION REPORTS
a. None.
11. PETITIONERS
The Petitioners section was opened at 7:23 p.m.
Gary Rappaport, 8405 Greensboro Drive, McLean. Introduced himself to
Council as the Chief Executive Officer of the Rappaport Companies which is located at
8405 Greensboro Drive in McLean, Virginia. He said the Rappaport Companies has
over a 35 year history in the region and own or manage for themselves or others over 60
properties and over 1,750 tenants. Mr. Rappaport said that they are proud of their
history and reputation in the region and when given the opportunity to become the
majority owner of the retail portion of the Village at Leesburg they decided to invest
their time and money in this first class property. He said they believe in the vision of the
project and the unique position in the Town of Leesburg as a premier mixed -use
destination. He said they are long-term investors and take great pride in the retail
centers that they own and manage. Mr. Rappaport said they want to be a partner with
the Town of Leesburg in making the center a long-term success just as they have done
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for more than 20 years in the relationship they have had with the Town of Herndon with
the Worldgate Retail property. He said that he knows there have been some challenges
faced by the retail component of the Village and noted that they are committed to
building and stabilizing the retail with a combination of well -established retailers as well
as exciting new concepts. Mr. Rappaport said some of these new concepts such as
Chefscape have already been implemented with help from the Town and have received
very favorable reviews. He said they have already implemented a schedule of weekend
events to draw the community into the center and that they know many residents of the
Town enjoy. He said he was in attendance at the meeting to convey a simple message
and that is that the Rappaport Companies is serious about its investment in the Town
and its partnership with the Council and the residents Council represent. Mr. Rappaport
said that in order for the Village at Leesburg to continue thriving, they have identified
some Zoning hurdles that are limiting some of the types of retailers that can be brought
into the Village. He said that a member of his team is going to describe one such hurdle
and what they see as a simple fix in the form of a proposed Zoning text amendment that
they have identified after discussing the issue with staff. He said he believed there are
several other items that may need to be updated in the coming months in order to allow
the retail component of the Village to thrive. Mr. Rappaport said that they are
committed to working with Council to ensure the long-term use and health of this
mixed -use center. He thanked Council for their time.
Shane Murphy. 7900 Tysons One Place, Tyson's Corner. Spoke to Council as a
representative of Reed Smith LLP. He shared one of the exciting new concepts that Mr.
Rappaport alluded to earlier which is doggie daycare. He said these uses are becoming
much more popular and they are locating throughout the region. Mr. Murphy noted
that there is a separate Special Exception Application on Council's Public Hearing
agenda requesting the co -location of doggie daycare, Veterinary Services and an eating
establishment. Mr. Murphy said that they have an operator called Playful Pack that is
interested in leasing a space in Village at Leesburg. He said they are focused on doggie
daycare and they focus on specific neighborhoods. He noted that they are opening a
new facility the coming weekend in Fairfax Station so they do have local operations so
this would not be their first operation. Mr. Murphy said they have expressed an interest
in locating their next facility in the Village at Leesburg because of the need for these
kinds of facilities within mixed -use activity centers. He said many condominium
buildings and mixed -use buildings do have these facilities that are specific to the
particular development. He noted that there is one critical problem with the Village at
Leesburg which is that the use is not allowed under the current Zoning Ordinance. He
said if you look at the first page of the handout that he provided that it is split zoned
between B-4 and PRC. Mr. Murphy said the split zoning was necessary to achieve the
uses and densities that are permitted as part of the Village at Leesburg Zoning approvals.
He said if Playful Pack were to locate in the PRC portion of the property, the use would
be allowed subject to an amendment to the Villages approved zoning. He said that the
preferred location of Playful Pack is in the previous Swim Kids location which is in the
B-4 portion and does not allow kennels. Mr. Murphy said the desired location is very
well situation because it would permit an outdoor run area and would utilize a retail bay
that appeals to specialty retail establishments because it has a relatively large size. Mr.
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Murphy said recently the Town staff has proposed amending the Ordinance to allow
doggie daycare in certain districts including the B-4 district as a personal service use. He
said that while they are supportive of Town staff's proposal, Playful Pack and many
other operators offer overnight boarding for their clients and the Town staff's current
proposal would not permit this. Mr. Murphy said this is a critical component of Playful
Pack's business model. He said after discussing with Town staff, they are appearing
before Council to respectfully request that the Town Council initiate a separate text
amendment to initiate action to permit the existing kennel use which is separate from the
proposed doggie daycare use to operate in the B-4 district as it is not permitted currently.
He said this could be done by -right or by Special Exception depending on what the
Council's preference is. He said a Special Exception would give the Town control over
individual applications to ensure that they are integrated with the surrounding uses and
will not negatively impact the adjacent uses in regard to noise and visual impact. He
said the old Swim Kids facility is the perfect location for this and where they are hoping
to go. He said representatives from Playful Pack are in attendance at the meeting as this
is important to them. They are here to express their interest along with his interests in
making it a reality. Mayor Burk noted to Mr. Murphy that any Council Member can
bring this up at a later point in the meeting.
Doug and Linda MacLean, 303 Locust Knoll Drive, Leesburg. Spoke to Council
to respectfully request that the Town consider extending the sidewalk from the
intersection of Fairview Street and Old Waterford Road northward to the pedestrian
entrance of Morven Park. Mr. MacLean said hopefully it can be designed to provide
better accommodation for walkers, joggers, and people who have strollers who like to
get into Morven Park. He said that the area where the road narrows and turns, cars
come whizzing through and there is no place to walk. They asked for Council to
consider extending that sidewalk on the left-hand side of the road. He said they believe
it will be a worthwhile venture. Mrs. MacLean said that they are representing their Old
Waterford Knoll neighborhood which is 144 households. She said it is Locust Knoll,
Lakewood Way, Paddock Road and Old Riding Trail. Mrs. MacLean said she and her
husband moved to Leesburg from Boston about a year ago. She said they honestly feel
like they have died and landed in the Hallmark Channel. She said they love Leesburg.
It's beautiful and they have met so many nice people. Mrs. MacLean said that for the
safety of their neighbors and everyone else that gets the gift of Morven Park that they be
able to walk to it safely. She said the area is truly very dangerous. She noted the reason
they are speaking in support of this is that she and her husband almost got hit by a car
about four weeks prior and that the car came so close to them it frightened them. She
said they see it from Waterford that they are whizzing up this street. Mr. MacLean
showed Council a map and pictures of the area. Mrs. MacLean said that for the safety
of the citizens that it would be most important to address. She said she would leave
some facts about the roadway for Council to consider. She said one of her friends
actually fell there last winter and got a concussion because there are divots on that side
of the road. She said there are sidewalks on each side of the road all across Waterford
Knoll but for some reason on that side there are no sidewalks. She said they just need a
small extension that would make it safe for everyone. They hope that the Town will
consider this extension and that it could be part of the Capital Improvement Program.
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They would rather tell Council now so there is time to act rather than wait until
someone gets hurt. Mayor Burk asked Mr. Dentler if this is something that would be
brought up during the budget discussion. Mr. Dentler said that staff would talk to Mr.
and Mrs. MacLean in the hallway to get more information and that they can look into it
and provide a report back to Council for consideration. He noted that some of it is not
in the Town limits so they will need to figure that out as well.
Dave Culbert, Graydon Manor Lane. Spoke to Council and noted he was
continuing where he left off at the last meeting. He said when they last met he read that
Mayor Burk had written a constituent acknowledging that Graydon Manor had a
contract with the Town for the provision of sanitary sewer services and finished by
saying, "So we cannot stop the sewer from the project. Damn!" Mr. Culbert said he
was not at the meeting to suggest that Mayor Burk was biased or prejudiced against his
client or his project. He said he was kidding and said that of course she was. He said
that he assumed that she would always do the right thing and recuse herself from taking
a vote on the matter involving his client or his project given her obvious and palpable
dislike. Mr. Culbert said at least he assumed that for the purpose of this presentation.
He asked Council to examine what has happened as a consequence for the Mayor's bias
and how the Town has dealt with his client's rights in its review of his client's
application for confirmation of capacity and service. He said first comes gamesmanship.
Mr. Culbert said that somehow Leesburg wants to transform a traditional ministerial
matter and an administrative function into a legislative one. He said in other words
utilizing the existing sewer connection should be a plug and chug process if capacity
exists and it does. He said then the connection is approved but if the Town were to
acknowledge that then they would be compelled to acknowledge his client's application.
Mr. Culbert said that instead Town staff instead invites them to pursue a semi -legislative
request for the Council to deliberate and vote to extend sewer when they are not seeking
any extension. Mr. Culbert said that staff is pretending that they are. He said in reality
they are simply increasing their current usage. He said that this is staffs attempt to
change the rules because otherwise as the Mayor has pointed out that the Town cannot
stop the sewer from the project. Mr. Culbert asked Council to continue examining the
homework he left at the last meeting. He said that Council may or may not have
brought the copies that he passed out at the last meeting so he walked them through it.
Mr. Culbert said that staff had previously advised this Council that they were not sure
what the Town's sewer capacity was and could not say whether or not there was
sufficient capacity to serve Graydon Manor. Mr. Culbert asked if anyone believed that
staff was that incompetent. He said if not incompetent then what. He noted that in any
event they know the answer and it is apparent in the homework that was left during the
last chat he had with Council. Mr. Culbert said in reviewing Tab 02 of the homework,
that the Town has treatment capacity of 7.5M gallons/per day and as of last December
used approximately 4.5M gallons/per day. Mr. Culbert said the projected usage at
Graydon Manor is projected at 0.11M gallons/per day. He said that as the homework
shows, when they submitted the data, Ms. Wyks sent it back mere days later as she
clearly did not want to review it. He said it appears to be staff's position that Council
must first have to approve an extension. Mr. Culbert said that was not correct. He said
they were told that then that staff could tell them whether they have capacity to do what
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was approved. Mr. Culbert asked who thinks that makes sense and is this really how the
system works. He said they can go into detail next time as time is short but in any event
he said that they did not want to be told that they have not provided the necessary
information. He said that is not true and staff knows it. Mr. Culbert said after all who
else other than staff and the Mayor thinks that increasing your use of something is the
same thing as actually extending the physical infrastructure. He equated it to adding a
room to one's home then asking the Town to conduct a hearing to extend its public
utility system. Mr. Culbert said to the extent staff wants a vote, any vote to be taken
should be to direct staff to stop manipulating their presentation and to process and
confirm that the Town has ample capacity to continue to serve Graydon Manor and in
fact will serve Graydon Manor upon the approval of the plans by Loudoun County. Mr.
Culbert said if there is to be a vote then that shall be it unless the Mayor's vote is the
only one that counts.
The Petitioners section was closed at 7:39 p.m.
12. APPROVAL OF THE CONSENT AGENDA
Council Member Campbell asked for item 12. c. — Snow Removal Services
Contract Awards be removed from the Consent Agenda.
Council Member Fox asked for item 12. e. — South King Street Bridge over
Tuscarora Creek Bridge Repair Project Change Order No. 4 be removed from the
Consent Agenda.
MOTION2019-209
On a motion by Vice Mayor Martinez, seconded by Council Member Thiel, the following
Consent Agenda was proposed the following items removed: 12. c. — Snow Removal Services
Contract Awards and 12. e. — South King Street Bridge over Tuscarora Creek Bridge Repair
Project Change Order No. 4:
a. License Agreement between Town of Leesburg and Lumos Networks, Inc. for
Loudoun County Public Schools Facilities Connection
RESOLUTION2019-164
Authorizing the Town Manager to Execute a First Amendment to License
Agreement between the Town of Leesburg and Lumos Networks, Inc. for
Telecommunications Facilities in the Town's Rights -of -Way for Loudoun County
Public School Facilities
b. Public Art Exhibit by David Galen
RESOLUTION2019-165
Approval of a Public Art Exhibit at Town Hall by David Galen
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d. Appointment to the Planning Commission (Martinez)
RESOLUTION2019-166
Appointing Gigi Robinson to the Planning Commission
The Consent Agenda was approved by the following vote:
Aye: Campbell, Dunn, Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor
Burk
Nay: None
Vote: 7-0
c. Snow Removal Services Contract Awards
Council Comment:
Council Member Campbell noted he understands what is budgeted. He
asked if the Town is already anticipating a need for additional snow removal
services that they didn't already approve in the budget. Ms. LaFollette said that
was correct. She said that this is awarding the contracts so that the Town has
equipment on call for snow and ice removal services. She added that the
contracts that they award will be up to the budget that was approved in the Public
Works operating budget. Ms. LaFollette said that this assumed that the Town
would be able to afford one 24-hour event in the operating budget. She said
based on the prices that they received through the bids, they are not able to fully
cover one 24-hour event with the needed resources for the level of snow removal
that they have done for the past three years. Mr. Campbell said that was exactly
the clarification he was seeking because what is being proposed is one 12-hour
event. Ms. LaFollette said that was correct. Mr. Campbell asked if the Town has
a 14-hour event what would happen. Ms. LaFollette said she would be over
budget. Mr. Campbell said then Ms. LaFollette would have to come back before
Council for additional funds because the Town can't afford the service with what
it budgeted last spring and based on the bids that have come back for a 24-hour
event. Ms. LaFollette said that was correct. Mr. Campbell asked if there were
any 24-hour events last year. Ms. LaFollette said they had 13 events last year
and of those 13 events, 7 of them were over 24-hours. She added that there were
24- to 36-hour events and they had one that was a three-day event. She said that
is why staff came back to Council with a supplemental appropriation at the end
of the snow season and asked for approximately $600K. Mr. Campbell said the
likelihood of having no 24-hour events when the Town had seven last year is not
realistic. Ms. LaFollette said the odds were pretty slim. Mr. Campbell said that
what was being proposed is not a real plan to cover a snow emergency. He said it
is a stop gap as a process piece but that Council needs to do more. Mr. Campbell
said that at some point he would like to see this back before Council because
what they did at the end of last year was approve a supplemental allocation of not
$155K that was budgeted now but instead was over $600K. Ms. LaFollette said
that was correct. Mr. Campbell said they need to be more realistic rather than
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keep coming back for supplemental appropriations. He said that was not realistic
how they budget.
Council Member Thiel said he echoed Council Member Campbell's
remarks. He asked Ms. LaFollette what the process was for asking for funds last
year that is different for this year. He asked if there was any planning or
forecasting. Mr. Dentler said that there was and that the history on this item in
the budget is that it is not one line item. He said it is spread out through multiple
departments. He said that well over 10 years ago, the Town funded about eight
to 10 snow events per year. Mr. Dentler said that back in 2008-2011 the budget
got very tight and Council and the Town Manager at the time made the decision
to reduce the budget to about two to three snow events each year. He said that is
the practice that has been in place for the last eight plus years. He said the
theory is that some years they only have only a few storms and some years they
have more and they would have to go to a supplemental appropriation at the end
of the year. Mr. Dentler said that has allowed the budget to be approved at the
tax rate Council has passed in the past. He said that they understand that they
have not been funding enough money and this is a way for the budget to get
approved at the rate Council has requested over the years and is a deficiency in
the budget planning. Mr. Thiel asked if it is billed by hours or is billed by events.
Ms. LaFollette said it is actually billed by hours and is billed for idle time and for
push time. She said if the Town calls them in in anticipation of an event, they are
paid at 50% of their push rate. When they are in operation they are paid their full
hourly rate. Ms. LaFollette said they are tracked by GPS and the GPS hours are
compared to the invoices that are submitted so that they are paid actual hours.
Mr. Thiel said that was good to know.
Vice Mayor Martinez said in the future that the Town needs to start
putting realistic numbers in the budget and instead of one event, they need to
budget for at least two to four events and perhaps include a line item not to
exceed unless approved by the Council. He said he does know whether it is a
medium snow event or a heavy snow event, pushing the snow around is about
the same amount of time. Mr. Martinez said he would like for staff to inject a
little more realism into the budget. He said even though the reality is that there
will be a discussion at budget time, at least they can have an honest discussion
that they can all move forward on and lay the groundwork so that staff does not
have to keep coming back to Council.
Council Member Dunn asked if it was possible or would it be in violation
of public notice in increasing that amount at the current meeting. Mr. Dentler
said that the Town has to have the funds to do it. He said if Council is interested
in increasing that line item, staff would have to identify where that revenue is
coming from to pay for it. He confirmed with Ms. LaFollette that the amount last
year was $600K. Mr. Dentler said that to provide an order of magnitude, one
penny on the tax rate is equivalent to right around $800K. He said that it is
almost a penny on the tax rate which is pretty significant sized number. Mr.
Dentler said that if the majority of Council wants staff to do that, then staff can
go back and find options for Council to consider to fund it. He said that they
would have to find the revenue first. Mr. Dunn said that every year the Town
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seems to be budgeting in a surplus that tends to run in the million to a million
and a half dollar range. He didn't believe that was going to be the situation this
year because part of that is going to be taken up with the delayed funding on
personnel increases. He did add that this still does not equal the million and a
half dollars that the Town generally has in surplus. He said additionally while it
was not budgeted last year, the Town came up with the money to meet the need.
Mr. Dunn said it was there but asked where it came from. Mr. Dentler said that
the way the practice has been set up and the direction that has been provided in
the past is that it comes from the surplus at the end of the year banking on the
fact that there is a surplus. Mr. Dentler said that for the FY19 Undesignated
Fund Balance/Surplus that there will be none. He said that as noted in previous
discussions with Council that the Town has spent most of those funds if not all.
Mr. Dentler noted that there's even another item before Council on the current
agenda for a traffic study of $25K. He said in the past staff would recommend
using the Undesignated Fund Balance but this year there is no surplus this year as
the money has been spent. He noted that there is no fallout from FY19 when the
books are closed. Mr. Dentler said that the Town has been banking on using the
Undesignated Fund Balance and that funds will fall out but that is not really the
best sustainable method to use. Staff has been able to manage through this but in
order to fund the $600K upfront, Mr. Dentler said that they have to find the
revenue to do so and that he currently does not have that available unless Council
wants to raise fees or taxes or find another revenue source at this time or there
will be a reduction in other services. Mr. Dunn said he still thinks it is better to
show that the Town is budgeting for a need that has generally been there rather
than assume that they will get the funds through over budgeting or in this case
overtaxing. Mr. Dunn said he asked if a change could be made in the amount
requested at the current meeting or would Council be violating any public notices
because they have only made a notice of $103K. Ms. Notar said that this is
motion for a contract award. She said if Council wanted to make a
supplemental appropriation for more money for this budget, she believes it is a
motion that would need to be added to the agenda. She added that under
Council's Rules of Procedure that takes unanimous consent. Mr. Dunn said that
since the contract is not for $500K and that it is only for $100K than that would
be a whole different agenda item. Ms. Notar said that was correct.
MOTION
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
following was proposed:
RESOLUTION
Awarding the Fiscal Year 2020 Snow Removal Services Contracts to Multiple
Contractors in the Amount of $103,270
Council Comment:
Council Member Thiel asked that with the additional $103K if staff can
predict if it may come back to Council for $500K more. Ms. LaFollette said most
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definitely by the end of the snow season. She said that she can't predict what
kind of snow and ice storms they are going to get but the main things she needs to
do is presently is award these contracts so that these vendors are committed to the
Town for snow and ice removal and then she can deal with the additional
funding later. Mr. Thiel said that he believed that this is a funding issue that they
need to plan for instead of relying on past Council's taking back the events for
snow removal. He believes that the Town should prepare for this and to give
staff the resources to get the job done successfully.
Council Member Campbell said that the motion needs a friendly
amendment or there needs to be an additional motion. He said they have
identified a problem and awarding this contract does not solve the problem. Mr.
Campbell said that they can save it to a future Work Session item but he does
agree with the Town Manager that Council needs to problem solve financially
where these funds will be coming from. He said this is not a next year budget
issue but is a this year right now financial issue and that Council needs to find the
funds somehow. He said that is either going to have to be in some reduction
because he doesn't think there is enough will to increase taxes at this point in the
current fiscal year and they have the ability to adjust the budget and make
changes. He thinks it is irresponsible just to say that they are going to pass this
contract and agree that they need to do something to hold the services that they
need accountable but added that to pass this budget without an additional action
is irresponsible. Mr. Campbell proposed a friendly amendment as this contract is
awarded but if possible to add an additional action to do further research and
study to look at how the Town finances snow removal for the rest of the season.
He said otherwise he would propose it as a separate motion with the same issue.
Vice Mayor Martinez said he would agree to a friendly amendment but what he
would not have a problem with is asking staff to find the funds to further pay for
future snow removals that are not accounted for today. Mr. Dentler clarified that
Ms. LaFollette needs the contract award approved and he believed that Council
planned to approve it but that she does not spend the funds for the contractors
until the work is performed. He said there is no bill that currently needs to be
paid. Mr. Dentler said that if an event occurs tomorrow and she has to pay those
contractors, they manage within the cash flows of the budget of FY20 but at the
end of the year, the practice is to settle out at the end of the year with surplus
funds to cover those costs or other reductions are needed elsewhere to get to that
point. Mr. Dentler said that staff is managing the resources and Ms. LaFollette
will roll out the resources the Town needs and staff will manage the process
based on the total funding in the process. Mr. Dentler said that they don't have
the extra $600K sitting in a line item waiting for Ms. LaFollette to use it. Mr.
Martinez said he understood the point but that Council wants to make sure that
Ms. LaFollette doesn't have to come back time and time again to help pay for
snow events. He said Council wants to make sure the funds are earmarked so
that Council has the confidence that she does not need to keep doing that. Mr.
Dentler said in order to earmark the funds in advance the Town has to have a
specific revenue source identified whether that is an increase in fees, tax rates, or
whatever the source is or they have to identify where there needs to be a cut
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November 12, 2019
upfront so that they are now sitting in a line item waiting for Ms. LaFollette to
use. Mr. Martinez said the key word is research. He said he wants staff to come
back and let Council know what can and can't be done. Mr. Dentler said he will
do that but wanted Council to be aware that ultimately it is going to come down
to those two items. Staff will do the research so that there are options.
Council Member Dunn said that he fully understands what Mr. Dentler is
saying in that the funds are going to be there in the Undesignated Funds which
Mr. Dentler is saying are surplus funds. Mr. Dunn asked on the contract if the
provider of the service would be the same whether the Town spent $103,000 or if
the Town spent $500,000. Ms. LaFollette said that was correct. Mr. Dunn asked
if the contract already has provisions to increase the amount or does staff need to
come back and do new contracts. Mr. LaFollette said the contract has the ability
for staff to administratively increase the hours per vendor. Mr. Dunn said what
has been stated is that Council does not want staff to have to keep coming back
looking for the money because they haven't done that. He said that for years that
has been the system and that Ms. LaFollette has not had to come back to Council
looking for money in the middle of a snow knocking on Council Member's doors
saying I need money quick and I need a snow plow. It would have already been
provided. Mr. Dunn said for him the issue is more that if it is known that they are
going to spend $600K that the Town budget for it and if it is not used then it can
be a surplus that they use for other things at the end of the year rather than
knowing they are going to need the $600K and putting it into an Undesignated
Fund Balance and putting it into a mystery pool and having other things seem to
get lumped into it. Mr. Dunn said that he would rather know that they are
committing to the citizens of Leesburg that they know they are going to be taxing
them an additional surplus of over $1.5M on average per year and instead of
doing that it would just be $1M per year unknown surplus because they are
already designating a known expense of basically $500K if that is the number that
Council chooses to use. He said that there is not a whole lot of research that
needs to be done as being requested because he knows where the funds are
coming from. Mr. Dunn said that it is the revenue sources and they're unused at
the point to which they can be used for plowing services. Mr. Dunn said for him
he would rather see this be a budget issue that they are handling at budget time
and that it is not just $100K being in the budget but recognizing that it is a $500K
- $700K cost and that they don't count on having millions of dollars of surplus
that is then designated at the end of the year. Mr. Dunn said he was in support
of the motion to award the contract but that there is not a lot of research that has
to be done. He said it is a known fact that they need to be better on their
budgeting. Mr. Dentler offered a point of clarification noting that the Town does
not budget for an Undesignated Fund Balance until it actually occurs. He said
that they don't have a pot of money that they stick in that account in advance.
Mr. Dentler said it has to fall out either by expenditures not occurring or bills
coming in less than anticipated or revenues coming in higher. He said that is
where the money falls out and then at certain points of the year once those are
identified, Council can make decisions to use it. He said that is the difference
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COUNCIL MEETING November 12, 2019
between what Mr. Dunn said. He just wanted to be clear on this. Mr. Dentler
said he will follow exactly what Council is asking him to do.
MOTION2019-210
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
following was proposed:
RESOLUTION2019-167
Awarding the Fiscal Year 2020 Snow Removal Services Contracts to Multiple
Contractors in the Amount of $103,270 and to do additional research on the budget
impact to fund the rest of the snow season.
The motion was approved by the following vote:
Aye: Campbell, Dunn, Fox, Vice Mayor Martinez, Steinberg, Thiel
Nay: Mayor Burk
Vote: 6-1
e. South King Street Bridge over Tuscarora Creek Repair Project Change Order No. 4
Council Comment:
Council Member Fox asked about the project and noted from when it was
awarded last year to now the cost has grown by about 47%. She said that the
Town usually puts in a 20% contingency buffer for CIP project. Ms. Fox said
that as she looked at the fiscal impact there is not an additional appropriation
necessary. She asked where the other 27% funding was accounted for. Ms.
LaFollette said that they are taking that from the milling and paving program.
She said they can use that as a match to the Town's revenue sharing as it is
roadway improvement work. Ms. Fox said the reason she pulled it is that she
was not going to vote on consent to that and would be against this one and is the
reason she pulled it.
MOTION2019-211
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
following was proposed:
RESOLUTION2019-168
South King Street Bridge Over Tuscarora Creek Repair Project Change Order
No. 4 Approval
The motion was approved by the following vote:
Aye: Campbell, Dunn, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk
Nay: Fox
Vote: 6-1
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COUNCIL MEETING November 12, 2019
13. RESOLUTIONS /ORDINANCES / MOTIONS
a. Traffic Study - East Market Street Intersections with Plaza Street and Fort
Evans Road
MOTION2019-212
On a motion by Council Member Steinberg, seconded by Vice Mayor Martinez, the
following was proposed:
RESOLUTION2019-169
Traffic Study for East Market Street Intersections with Plaza Street and Fort Evans
Road
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
b. Small Business Saturday Proclamation (Sponsor: Mayor Burk)
MOTION2019-213
On a motion by Mayor Burk, seconded by Council Member Thiel, the following
was proposed:
I move to approve the Small Business Saturday Proclamation to be presented at the
November 26, 2019, Council Meeting.
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 abstain)
c. James Robert "Jimmy" Dorsey, Jr., Proclamation (Sponsor: Mayor Burk)
MOTION2019-214
On a motion by Mayor Burk, seconded by Council Member Thiel, the following
was proposed:
I move to approve the James Robert "Jimmy" Dorsey, Jr., Proclamation to be
presented at the November 26, 2019, Council Meeting.
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 abstain)
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COUNCIL MEETING November 12, 2019
d. Loudoun County High School Marching Raider Band for Winning the
National Championship Proclamation (Sponsor: Mayor Burk)
MOTION2019-215
On a motion by Mayor Burk, seconded by Council Member Fox, the following was
proposed:
I move to approve the Loudoun County High School Marching Raider Band for
Winning the National Championship Proclamation to be presented at the
December 10, 2019, Council Meeting.
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 abstain)
14. PUBLIC HEARING
a. TLSE-2019-0003 Wee Garden Daycare — Special Exception Application
The public hearing was opened at 8:05 p.m.
Mr. Scott Parker gave the Council a presentation on the Special Exception
application for expanding a daycare located at 1319 Tenaya Way.
Key Points:
• Application is for a family day home or family home -based daycare
for 6-12 children.
• The home is in the River Pointe Subdivision.
• No new buildings or improvements with the application.
• Family day homes are allowable by Special Exception in
residential zoning districts.
• The interior function of a home daycare center or a family day
home is administered by the State of Virginia.
• It is a single-family detached lot of .15 acres.
• There are two neighboring homes to the application, homes across
the street and an open space behind the house that functions for
stormwater management for the site.
• The Applicant provided a plot plan showing the ingress and egress
to the walkway to the daycare in the rear.
• Town Plan calls this low -density residential and is zoned Planned
Residential Neighborhood District.
• There are two sets of standards for a family day home with 12
specific use criteria under Zoning Ordinance 9.4.7.(C) and four
general approval criteria for Special Exceptions that Council is
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familiar with with all Special Exceptions under Zoning Ordinance
3.4.12.
• The Virginia Depaitiiient of Social Services (VDSS) regulates the
use of a home daycare of family day home for compliance of child
safety. Town staff checks the VDSS Web site for valid licensing
and problems as required of the Zoning Ordinance. Mr. Parker
said that there have been two minor issues in the past that have
been corrected. The license is valid and he has spoken to the
representative from VDSS and she has no problems with the
licensure of this daycare center and has positive things to say about
it.
• Mr. Parker reviewed the use section of Zoning Ordinance 9.4.7 and
noted the Applicant will update the Home Occupation for a Home
Right Day Use and all codes will be met.
• The Applicant has provided HOA documentation and that there
are no issues related to the Homeowners Association and they are
in full approval of the application.
• The lot complies at .15 acres and is 500 square feet over the
minimum size.
• Applicant has one employee and parking is provided.
• Children are dropped off in the driveway and arrival and departure
into the home and there are no street crossings necessary.
• Applicant has indicated that pick up and drop off times are
staggered.
• There will be no changes to the exterior of the home.
• The play area for the children has been provided at 900 square feet
as required and the applicant is providing 1,700 feet within the rear
yard.
• Applicant has a completely enclosed fence that is four feet in height
and is an aluminum picket fence and meets the criteria of being a
four foot fence for the enclosure.
• Mr. Parker noted there is play equipment in the rear yard but it
does not encroach on the setbacks.
• There is a pathway to the facility that is provided and staff has
observed it. It is concrete and pavers, is a decent grade and
provides adequate access to the daycare facility in the rear of this
home.
• Planning Commission had a public hearing on September 5 and
they recommended denial 4-2-1 and three members of the
community spoke in opposition to the application and two
members spoke in favor. The Commission cited in their denial the
potential impact of noise on concerned neighbors, excessive
number of children in a residential setting, numbers of children and
a resulting impact on neighborhood traffic and parking.
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COUNCIL MEETING November 12, 2019
• Town staff has not received any opposition for this application
coming forward to Council.
• Staff recommendation for Section 3.4.12 in the Zoning Ordinance
have been met.
• Staff finds that there is no adverse impact to the neighboring
properties and the use complies with zoning in the Town Plan and
does not hinder the development of nearby lands and the traffic
generation because the numbers do not create a problem.
• Conditions of approval for the Special Exception have been met:
Substantial conformance; No implied waivers; Recreational
fencing maintained in good repair; Maximum number of children
(12); No play equipment located within setbacks; Drop off and pick
up hours of operation: 7:00 a.m. to 6:00 p.m., Monday — Friday;
and a Termination of use clause.
• Staff recommends approval of TLSE-2019-0003, Wee Garden
Daycare, subject to the conditions of TLZO Section 9.4.7, Family
Day Homes and TLZO Section 3.4.12, Special Exception
Approval criteria, as well as other conditions of approval contained
in the September 5, 2019, PC Staff Report.
Council Comment:
Council Member Fox noted that Mr. Parker said the maximum
number of children is 12 but asked how many children were at the daycare
presently. Mr. Parker said he was unsure but noted that they are currently
allowed up to nine by -right. Mr. Parker said the Applicant indicated they
have eight. Ms. Fox said that Mr. Parker conveyed that the denial from
the Planning Commission was based on the impact of noise from the
neighbors. Mr. Parker said what he listed was from the Planning
Commission's Public Hearing. Ms. Fox asked if that was the only
concern they had. Ms. Fox confirmed with Mr. Parker that he said that
staff does not believe that there's any impact or adverse impact to the
neighboring property and that he was just talking about the physical
property and not neighbors. Mr. Parker said that from the uses and from
staff's analysis that they have not caused a problem in any of the
neighborhoods. The Town does not get complaints about these uses on a
regular basis. Ms. Fox asked if he meant for this particular daycare. Mr.
Parker clarified that he meant for all of the home -based daycares that he
has had. Ms. Fox said she gets that but also understands that each one is
different and that they are separate applications for a reason. She said she
has seen home -based daycares where the community rallies around home -
based daycares which is great but noted she is hearing these other
concerns as well. Mr. Parker said that staff did visit and did not observe
anything that would give him pause for concerns about an adverse impact
compared to other ones that they have approved in the past.
Council Member Campbell said that it is not unusual for Council
to do this and that they have had these applications before and studied the
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COUNCIL MEETING November 12, 2019
neighborhood impact and talked to neighbors who have been pro and con.
He said that the Town has tried to be reasonable and the impact whether it
is noise or traffic on any community and at the same time determining if it
is an allowable use. Mr. Campbell asked Mr. Parker if there was anything
uniquely different about this application as a use whether it is the
community or the neighborhood, the size of it, how traffic flows, the
width of the streets, the availability of parking, etc. He asked if there as
anything that would have caused the Planning Commission to say no if all
of these conditions were met by the Applicant if it was simply the
concerns but that the community is not uniquely different from most
communities where the Town has approved these applications. Mr.
Parker said he would have to characterize this application as not being
dramatically or systematically different from any of these that have been
provided. He added that in this particular case there are no residents
behind them. Mr. Parker said the last two that he has done there have
been adjacent neighbors to the rear where the applicant has spoken to the
neighbor and agreed to plant some trees of that nature to mitigate some
sightlines but noted this is the typical neighborhood that these have been
approved in and they actually have approved them on smaller lot sizes
with smaller houses. He said there is nothing unique about this. He said
this home is on a road and not a cul-de-sac and is a through wide street
with street parking. Mr. Parker said not diminishing the neighbors'
concerns from the Planning Commission but strictly from a zoning
perspective and the ongoing reviews of these on a regular basis there is
nothing unique or special that raises a concern for staff.
Council Member Steinberg asked who determines how many staff
are needed to monitor the children during the hours of operation. He
asked if this was a County function. Mr. Parker said that it is a State
function and depends on the age of the children. Mr. Steinberg asked for
clarification on what the current allowance is for the number of children
and asked if it was six children or six to nine. Mr. Parker said it was six to
nine children by -right and nine to 12 by Special Exception. Mr. Steinberg
said that when the number of children goes from nine to 12 the State does
not require any additional staffing. Mr. Parker said that it goes per child
and believes that they currently have enough staffing for their proposal
based on the age of the children but the State would let them know that.
Mr. Steinberg asked who determines the height of the fence which is
currently set at four feet. Mr. Parker said that is a State requirement that is
encapsulated in the Town's Zoning Ordinance. Mr. Steinberg said that
the only comment he has on that is that four feet seems to be short and
low for some kids that may be able to clamor over it. Mr. Steinberg asked
if there have been any serious complaints about parking along the streets
during winter months or anything like that. Mr. Parker said that he
checked with Zoning on a couple of different occasions and there have
been no complaints about parking or traffic on this street.
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COUNCIL MEETING November 12, 2019
Vice Mayor Martinez said that it is his understanding that the State
not only regulates the daycare itself as far as the infrastructure or the
structure of the daycare but also things like meals and what you have to
provide for the children that they are taking care of. He asked if he was
correct that there are a lot of State regulations they have to follow to make
sure they comply to run the daycare. Mr. Parker said that was correct and
even requirements for immunization record checks, contact record checks,
medicine checks, etc. Mr. Martinez said it is not like when he grew up
and you just went to a neighbor's house and that was it. He said it has to
be regulated and there are requirements for the number of kids per person
that are working there. He says he knows a lot about this because his
sister-in-law runs a home daycare in California. Mr. Martinez asked Mr.
Parker if he was correct where they have had applications like this in that
general area anyway. Mr. Parker said that was correct in that there have
been approximately three over the last five years. Mr. Martinez said this
is not anything new. Mr. Martinez confirmed that the Applicants hours
are 7:00 a.m. to 6:00 p.m. and asked what the age range is of the children.
The Applicant responded that the ages were one year to three and a half
years old. Mr. Martinez said that other than dealing with crying inside
the house, he does not expect a whole lot of noise on the outside so that
kind of impact does not concern him.
The Applicant Ms. Francis Jimenez and her husband Mr. Fredrick
Ackbari spoke to Council about their daycare and asked Council to approve their
application.
Key points:
• Mr. Ackbari said that during the Planning Commission meeting
denial that there were a lot of accusations that were made and he
felt as though they were not given the time to respond. One
example was where their next door neighbors, Mr. and Mrs.
Crockett, said that they had parked in their parking spot on the
street. He said he couldn't understand that and only realized after
the meeting that this occurred on a Saturday when Wee Garden is
closed. He recalled they had guests over and their guest had
parked on the street. He said Mr. Crockett came over to his home
and asked him to move the car. He said he asked his guest to move
his car but later on it occurred to him that it is a public street.
• Mr. Ackbari said that another issues brought up by the Crockett's
was that Mrs. Crockett had almost been hit by a car. He said as
she was pulling out of her driveway onto the street that the issue
should have been for her to watch out when she was backing out of
their driveway for oncoming traffic. He said a lot of these issues
were accepted at the Planning Commission.
• Mr. Ackbari said another issue that came up was the noise issue.
He said there is no noise. He noted that Council Member
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COUNCIL MEETING November 12, 2019
Steinberg asked about the height of the fence. Mr. Ackbari said
that that these are not children but rather toddlers and that there is
no way that they are able to climb the fence.
• Mr. Ackbari said in response to the noise, the children only come
out for an hour a day if the weather permits just like they would in
a normal school setting. He said if they thought there would be an
impact to the neighbors they would not do this. He said initially he
did not want his wife to do a daycare because he had the same
concerns the neighbors did. Mr. Ackbari said all of his fears were
irrational. He said even traffic is not an issue at all.
• The children are staggered when they come in over a period of
about an hour and a half.
• Mr. Ackbari said they sent the letter to five neighbors and not one
of them have voiced objection. He added that even the Crockett's
came to his house and apologized six times and said they were
sorry they came out in opposition. He noted that they were not at
the Council meeting to speak against it.
Council Comment:
Council Member Steinberg said he appreciated the Applicant's
presentation and point of view yet they always know that in situations like
this neighbors often times have different opinions. He noted that they
were providing a fairly positive application. Mr. Steinberg asked if he
works with the parents who come to drop off and pick up their children to
press upon them that there are other people on the street and they need to
be cognizant of that. Mr. Ackbari said that they do. He noted that one of
the parents who came by the house was driving a little bit quickly and that
he told them that if they keep driving like that, Francis will lose her
license. Mr. Ackbari said that someone mentioned about the oversight of
the State. He noted he was not part of the business and in fact it is his wife
who run the business but noted she has had accolades from a number of
people.
Public Speakers:
Matthew DelOrso, Belleview Drive. Spoke to Council in support of
the Special Exception Application and the proprietor Ms. Francis
Jimenez. He said he has lived in the River Pointe Community for six years
where the Wee Garden Daycare is located. He said his daughter was the
first ever client of Ms. Francis and has been with her since she was six
months old. He noted that like any parents who both work, he and his
wife were very anxious about the proposition of leaving her with a
complete stranger. Mr. DelOrso said over time they met with Ms. Francis
at length getting to know her and letting her get to know their daughter.
He said his situation was also complicated because his daughter was born
premature and had a condition where the infant's intestines are developed
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COUNCIL MEETING November 12, 2019
outside of the stomach in the amniotic fluid and required surgery to
correct. They had grave concerns for their daughter's short- and long-term
wellbeing and the quality of care that she would receive. He said Ms.
Francis far exceeded any expectations they had and now their daughter
who turned three the previous week is happy, healthy and thriving. Mr.
DelOrso said that he and his wife firmly believe that this is part due to the
extraordinary love and care Ms. Francis gave to their daughter at Wee
Garden Daycare. He said it is rare to find someone that you implicitly
trust with your children but outside of him and his wife there is no one
besides Ms. Francis that he would entrust his daughter to. Mr. DelOrso
said the world today is getting increasingly cold and daunting but Wee
Garden provides a place for children to learn and experience
unconditional love beyond their own home. He said that everyone desires
adults to mold children in society to be more tolerant, open and
independent and further everyone can appreciate a success story of
someone coming to America and working hard to achieve the American
dream. He said in Ms. Francis she is doing both by shaping young lives
for the better and giving them a firm foundation as they grow and develop
and also serves as an example for non -natural born US citizens that if you
have a passion you can pursue your dreams and make them a reality. Mr.
DelOrso said that a denial of Wee Garden's expansion denies more the
gift of Ms. Francis' special care to them and sends the message that the
voice of a small few outweighs the good for many. Mr. DelOrso said that
Council may hear from others that they oppose this Application due to
noise and traffic concerns both of which are easily dismissed. He said in
the three years that he has been with Wee Garden Daycare, and he has
dropped off and picked up his daughter most days, that there has never
been any traffic issues with neighbors or other parents. He said at most he
has encountered one other car and there has never been any issues at all.
Secondly he added there may be noise complaints. He noted that these
are toddlers and the complaint preposterous. Mr. DelOrso said as a
resident of River Pointe they live in the flight path of Dulles International
Airport and depending on the day the Leesburg Executive Airport also.
He said between the two there is a constant flow of air traffic at a much
higher decibel level than nine to 12 toddlers. He said the noise complaint
from the daycare is nonsensical and the bottom line is there is no good
reason to not expand the positive good in Leesburg by expanding the
small extension of Wee Garden Daycare.
Whitney McGrath, 1511 Shields Terrace NE. Spoke to Council in
support of the Special Exception Application. She said she is a parent that
has two boys enrolled in Ms. Francis' daycare. Ms. McGrath said she was
not sure if any Council Members have had to research daycare in the area
but as an overprotective parent who has spent endless hours of research,
visiting homes and walking through different centers that she could
reassure Council that unfortunately high -quality loving care that is
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COUNCIL MEETING November 12, 2019
affordable is extremely hard to come by in this area. Ms. McGrath said
that you can see in the pictures that Ms. Francis does have a large home
but what you cannot see is that the inside is immaculate and well -
maintained. She said what you also can't see in the pictures is the
basement of her home where she runs her program there are separate
rooms where the children sleep and separate rooms for where the children
have their programming and separate rooms for where the children eat.
She said what you also can't see is the amount of attention and care that
Ms. Francis and her assistant provide to each individual child in her
program. Ms. McGrath said when you walk through her program it is
evident how much care and consideration has been invested in her
program. She added as was previously mentioned that Ms. Francis has
1,700 square feet of outdoor play area and is fenced in in the backyard.
She says this reassures her and her husband that her boys are safe when
they are playing at her home. Ms. McGrath said she appreciates that the
boys get to go out every single day and get to burn energy before they get
to take them home after a long day. She said that Ms. Francis has offered
invaluable care to her family for almost two years. As a parent that has
previously struggled to find high quality care in the area, for Ms. Francis
not to be approved to be allowed to add an additional one, two or three
additional children into her program would be a disservice to the
community because the quality care offered in the program is hard to
come by in Leesburg.
Pawandeep Singh, 1321 Tenaya Way NE. Spoke to Council in
support of the Special Exception Application. He said he and his brother
were in attendance to support the Application. He noted he lives next
door to the Applicant. Mr. Singh said they do not have any noise
complaints. He noted in the morning around 7:00 a.m. is when the
parents come and drop off the kids and is the time when he leaves for
work. Mr. Singh said he has never had any trouble with traffic or any of
the other complaints he has heard. He said he and his brother as next
door neighbors have never had any troubles with the daycare and are in
favor of the application.
Jennifer and Tony Picardi, Tenaya Way. Spoke to Council against
the Special Exception Application. They noted that were two houses
down on the same side of the street as the Applicant. Mr. Picardi said this
is not an issue regarding whether they give good care. He said it sounds
like they really do and added that daycares are important to the
neighborhood. Mr. Picardi works from home and Mrs. Picardi said she is
home also. She said they have a unique perspective because they are there
all the time and they hear the noise. Mr. Picardi said that on nice days
there are older kids there and that they can't control three and four year
olds from screaming. He said they make a lot of noise. He said he has to
close his windows when he works. Mrs. Picardi said sometimes he is
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talking to the Department of Defense or someone really important and he
can't stop his conversation. Mr. Picardi said that the fence that they have
is an iron fence and it is not a soundproofing fence. He said you can see
in the picture how close the homes are. He said that he lives on .15 acre.
He added that he happens to be home and his neighbor next door works
night shifts as he works for United Airlines. He said he never came over
to him or Mr. Crockett to say they are opening up a daycare or expanding
a daycare. Mr. Picardi said that Mr. Ackbari told him a few weeks ago
that he did not want this to be antagonistic and wants to get along with
the neighbors. Mr. Picardi said he wants that too but noted that Mr.
Ackbari said he was intimidated by this and Mrs. Picardi said he was
going to put a camera on his house. Mr. Picardi said that he spoke with
the HOA leader in his neighborhood and that this is brought up in a lot of
neighborhoods that she works in. He said that if he was working all day
and left at 7:00 am and left his house and came home at 6:00 p.m. at night
it probably would affect him that much but it happens that he is home.
Mr. Picardi said that if you look at their street they don't have a lot of
traffic. He noted if you have 12 people dropping off that it more than
doubles the traffic in his neighborhood. Mr. Picardi said similar to traffic
is that you get there when you get there and you leave when you leave. He
said traffic around here is pretty bad so when you drop off you drop off
and he has had a couple of instances where he goes into work to visit a
customer and cars are speeding down the road to drop people off and then
they have to get to work. He said people are in a rush. He said there isn't
anything wrong with a daycare but he never expected to save up his life
savings to buy a single family house and have a daycare in the area. Mrs.
Picardi said she asked if her husband if he wanted to build a deck and he
said no because you can't sit on the deck. Mr. Picardi said the kids are not
out for one hour on a nice day. Mrs. Picardi said for a few months they
are bringing the kids inside but going back to the original hearing they
have had six or eight kids in the backyard and the noise level would be
very loud. She said once she was sitting on her couch in her family room
and heard a noise in the backyard around 1:00 p.m. in the afternoon and
there was a young child with one of the caretakers and walking along her
property in the backyard. She said she told her husband that she should
say something but he told her not to. She said they really don't want to
create problems but the kid came along the side and she asked if she could
help them and she said no. Mrs. Picardi said she told them that it was
private property. She said that they don't know what they are going to do
and with 12 kids and two daycare providers. She added that sometimes
Francis may be in the house and there may be eight kids outside with one
person. Mrs. Picardi said right now they are not doing that but they have
done that before and it is a lot. Mrs. Picardi said the speakers that spoke
in support are only dropping off and picking up their kids and of course
they want daycare but they don't really know what happens continuously
all day. She said it is a different environment. Mr. Picardi said that they
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also have had an issue with the kids there ringing their doorbell. Mrs.
Picardi said that they are also putting notes on their doorstep. Mrs.
Picardi said that the adults may not even be aware that their kids are
doing this because they are in the house. Mr. Picardi said from his
perspective it is impactful because he works from home and his wife is
home. He said it sounds like they give great care but he did not move into
the neighborhood because there is a daycare there and he can't open his
windows on a nice day. Mr. Picardi said it's hard to control screaming of
three and four year olds and there has been a lot of screaming. He said
there have been a lot of cases where it has gotten loud. He said that is his
biggest thing because he is able to work from home but not really.
The public hearing was closed at 8:39 p.m.
MOTION
On a motion by Vice Mayor Martinez, seconded by Council Member Campbell, the
following was proposed:
RESOLUTION
I move that special exception application TLSE 2019-0003, Wee Garden Daycare
be conditionally approved, subject to the conditions contained in the staff report
dated July 18, 2019 on the basis that the approval criteria of Zoning Ordinance
Sections 3.4.12 and 9.3.4 have been satisfied and that the proposal would serve the
public necessity, convenience, general welfare and good zoning practice.
Council Comment:
Vice Mayor Martinez addressed the concerns the neighbors had
and asked the Applicant to take their concerns into consideration and
really work to satisfy their concerns. Mr. Martinez said he knows what it
is like to work at home and having those kinds of issues. He said what he
also understands is what it is like to have a neighborhood daycare that you
can depend on and drop your children off and not have to drive through
traffic to pick them up.
Council Member Fox said she was unfamiliar with the conditions
of approval and asked Mr. Parker to remind her what those were. Mr.
Parker said that the conditions for approval are: substantial conformance;
no implied waivers; recreational fencing maintained in good repair;
maximum number of children (12); no play equipment located within
setbacks drop off and pick up; hours of operation: 7:00 am and 6:00 pm,
Monday — Friday; termination of use. Ms. Fox said that the operation
appears to be growing by a third and asked if that would require more
staffing. Mr. Parker said he did not know. He said that is a State function
and is based on the number and age of the children. Ms. Fox said that
there are neighbors that are concerned and she does takes that seriously.
Ms. Fox asked about the children's ages which are one and a half to three
years old. She said she did not understand how they could be ringing
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doorbells. Ms. Fox confirmed with the Applicant that the ages were one
and a half to three years old.
Council Member Campbell said in terms of by -right use in all of
the neighborhoods and all of them who move in anywhere, that home -
based businesses are part of the landscape. He said potentially there is
always the opportunity for a business or program to be in the
neighborhoods that they did not sign up for but that is the basis of the
community and the basis of the rights and freedoms that are granted. Mr.
Campbell said it is how they deal with them and how they work. He said
part of what they say about approval is that nothing is permanent. He
noted if there are problems and conditions that don't work the way they
are supposed to that there are rules and regulations that apply. Mr.
Campbell said at the same time Council can't deny by -right what people
have a right and responsibility to do for their lives as well. Managing that
in a community and how those decisions are managed are also about what
is in the best interest of the community as it grows. Mr. Campbell said
there are going to be many unique challenges, situations and opportunities
that they have to vote on up or down or one way or the other but they are
a community and this is how they grow. He said he was in favor of the
application and agrees with all of the conditions but at the same time there
is one important thing that has been said and that is that as a valued part
of the community, affordable and quality daycare is essential. Mr.
Campbell said how that is managed is that they are not really managing it.
It has been left to either private entrepreneurs or a few overpriced
facilities. He noted that this is something that is going to be faced by this
Council time and time again, year in and year out. He said this doesn't go
away and doesn't stop or diminish. Mr. Campbell said they will have to
address it but it is a fact of a good business practice for Council to consider
if there are extenuating circumstances and reasons for denial. He said that
he hasn't heard any.
Council Member Dunn said as Vice Mayor Martinez noted, when
he was younger there was not a whole lot of daycare. He said his father's
attitude was rather than having a stranger look after his kid, he would just
assume send him home by himself. Mr. Dunn said he was at the
Planning Commission meeting when this was discussed and he heard the
multiple neighbors. He said he understood why the Planning
Commission denied it. Mr. Dunn said that even the Planning Commission
said that they usually don't get people objecting to these applications. He
said he could understand full well the family members who have their
children at the daycare center and their support thereof. Mr. Dunn said
that it was a good point that was brought up that this is not an evaluation
of the quality of care that is being provided. He said daycare centers are
needed and that is why the State allows for up to nine children to be at the
daycare center on a by -right basis. He said that when they exceed that
number there are regulations by the Town that say that a Special
Exception is needed and is why the Applicant is at the Council Meeting
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and why they went to the Planning Commission. Mr. Dunn said that
while home -based businesses like the gentleman who spoke may be a
single entrepreneur or an additional employee and multiple people that
the daycare provider service to, that generally speaking, people move into
residential neighborhoods for the first priority that they want to live there.
He said generally is not the intention that a business goes in there but that
every house on every street has a right to open up a business at some
point. Mr. Dunn said that at some point they have to put limits on that.
He said that based on what he is hearing from Council so far is that the
Special Exception is going to pass. Mr. Dunn said he hopes that once it's
passed that the neighbors that have concerns are able to work with the
Applicant and that the Applicant will work with them on this. Mr. Dunn
said he lives right next to the footpath in his cul-de-sac. He said he loves
his neighbors but he hears their kids all the time and he works from home
too and it can sometimes be difficult. For that reason, he is going to vote
to deny. He said that he believes the Applicant is providing a good service
and that it will pass but for those that are opposed to it deserve a vote on
their side also. Mr. Dunn said he would vote to deny because this is why
this process exists. The service won't go away even if this Special
Exception doesn't pass and the service will be able to continue for the nine
children that are already in care.
Council Member Steinberg echoed the comments of Council
Member Campbell and noted that while he was not intending to lecture
anyone other than to say that it is crucially important that neighbors work
together in situations like this. He said it is far more incumbent for an
operator of a business to be absolutely certain they are doing everything
possible to create a manageable situation within a neighborhood. Mr.
Steinberg asked for a friendly amendment to the motion to change the
date from July 18, 2019, to, the "Staff report of November 12, 2019." Mr.
Parker said that the date in the motion was the date of the Planning
Commission staff report and not the Council staff report. Ms. Notar
suggested inserting "Planning Commission" in front of the date. Mr.
Steinberg asked for a friendly amendment to add this to the motion. The
amendment was accepted by Mr. Martinez and Mr. Campbell.
Council Member Thiel asked if the Noise Ordinance change will
change what the Zoning Ordinance says. Mr. Parker said the Noise
Ordinance is in full effect with a Special Exception. It does not abdicate
the responsibility for complying with the Noise Ordinance. It would be in
effect for this daycare center. Mr. Thiel asked if this would be part of the
discussion Council is having regarding changes to the Noise Ordinance.
Mr. Parker said he did not know how that would apply to this at this time.
Mayor Burk said that everything everyone has said is that they are
doing a fabulous job at the daycare center. Mayor Burk said that everyone
is aware that excellent daycare providers are rare and that she appreciates
the fact that people are willing to do this. She said that she hopes that they
will work with their neighbors on this if they are concerned about the
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noise. She said they seem to think that the kids are out there an awful lot
more than what was indicated. Mayor Burk said that she hopes that they
will work with whoever is the staff person working with the kids to try to
keep the noise level down and to try and keep the kids occupied. She said
that they will be outside and roaming around and playing and making
noise. She said they all know that but wants them to keep in mind to
consider their neighbors as to when they go out and for how long they are
out. Mayor Burk said she was in support of the Special Exception.
Mayor Burk called for a vote on the amended motion.
MOTION2019-216
On a motion by Vice Mayor Martinez, seconded by Council Member Campbell, the
following was proposed:
RESOLUTION2019-170
I move that special exception application TLSE 2019-0003, Wee Garden Daycare
be conditionally approved, subject to the conditions contained in the Planning
Commission staff report dated July 18, 2019 on the basis that the approval criteria
of Zoning Ordinance Sections 3.4.12 and 9.3.4 have been satisfied and that the
proposal would serve the public necessity, convenience, general welfare and good
zoning practice.
The motion was approved by the following vote:
Aye: Campbell, Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk
Nay: Dunn
Vote: 6-1
b. TLSE-2018-0002, Old Mill Pet Center
The public hearing was opened at 8:52 p.m.
Council Member Dunn disclosed that while there was no conflict of
interest with the Special Exception before Council, he has had a separate business
transaction with the Applicant and will abstain from discussion and voting but
would not be leaving the room.
Mr. Scott Parker gave a presentation on the Special Exception Application
to allow a 22,000 square foot Canine Daycare Facility, Veterinary Hospital and
Easting Establishment.
Key Points:
• Canine daycare center with approximately 12,229 square feet
• Veterinary hospital of 7,400 square feet
• Eating establishment of 2,000 square feet. Mayor Burk asked for
clarification if this was a people restaurant or a canine restaurant.
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COUNCIL MEETING November 12, 2019
Mr. Parker said it is for people and is an accessory use to the
doggie daycare.
• Applicable use standards apply to all three of these uses and almost
all of them have been met. The proposal includes one zoning
modification to one of the use standards as well as one waiver
request for street trees.
• Location is on Lawson Road off the back of Cardinal Park and
Trailview.
• Applicant owns the Old Mill Pet Center that is right in the location
as it exists and the Applicant is intending to expand his business
onto this property.
• Site access will remain in its existing location and lines up across
the street that sets the access for this location.
• All buffers have been met on site and with the exception of the
street tree waiver request all buffers have been met onsite.
• Property is 1.76 acres and is zoned I-1, Industrial/Research Park.
• Property is vacant except for an asphalt parking lot, used for
vehicle parking.
• Property is not subject to a proffered rezoning.
• Industrial properties and W&OD Trail adjacent.
• Planned Land Use is Regional Office.
• Proposed Density is .28 FAR.
• Mr. Parker reviewed the timeline and noted that while the original
application came in in 2018, the Applicant took a look at their
architecture and went back for a redo of the architecture with a
firm that specializes in this type of architecture.
• Staff believes this complies with the Town Plan Regional Office.
• Applicant proposes one (1) Zoning Modifications and one (1)
Waiver Requests:
o Modification of TLZO Sec. 9.3.12, Use Standards, Kennels.
■ The Applicant is requesting a modification to: allow
the kennel use on a lot with a size of 1.76 acres; and,
modify the 200-foot from adjoining lot lines
requirement. The requested distance from lot lines
requested by the Applicant include:
• 28 feet to the western property line (W&OD Trail)
• 34 feet to the northern property line (VDOT
maintenance yard)
• 87 feet to Lawson Road.
o Waiver Request of TLZO Sec. 12.4, Street Trees.
■ Proposal: The Applicant seeks a waiver of the
requirements of TLZO Sec. 12.4 to plant 10 street
trees along the property frontage of Lawson Road.
Applicant providing all buffers. Perimeter lot
landscaping providing 10 trees. Applicant exceeding
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10% canopy requirement (providing 15.2%).
Significant site distance and utility easements due to
road curvature
o Staff recommends approval of the requested modification
and the waiver.
• Other use standards have been met.
• Maximum capacity at the facility will be 150 for Canine Daycare
Center. There is no overnight boarding.
• Proposed animal hospital is a completely enclosed building.
• The eating establishment is an accessory use to the Doggie
Daycare. The project includes and eating establishment that is
approximately 9% of the total floor plan. 25% is allowed in an I-1
building. Intended to serve the patrons of the daycare but is open
to the public.
• Mr. Parker reviewed the elevations of the building with Council.
• Staff Analysis is as follows:
o Compatible I-1 use
o Low traffic area
o Building design good for area
o Minimal impact area for use
• Traffic analysis indicated the traffic is minimal and will not change
levels of service in the area.
• Staff's evaluation is it meets the Special Exception approval criteria
of Zoning Ordinance 3.4.12.
• Conditions of approval for TLSE-2018-0002:
o 1) Substantial Conformance: Development of this property
shall be in substantial conformance with the plan set entitled
"Old Mill Pet Center Special Exception for Canine Day
Care, Veterinary Hospital and Eating Establishment, TLSE-
2018-0002" dated January 8, 2019, as amended through
October 7, 2019, by Christopher Consulting (herein referred
to as the "Special Exception Plat"), with reasonable
allowances to be made for engineering and design alteration
to meet Town Subdivision and Land Development
Regulations, Zoning Ordinance or Design and Construction
Standards Manual requirements.
o 2) No Waivers Expressed or Implied: Approval of this
special exception does not express or imply any waiver or
modification of the requirements set forth in the Subdivision
and Land Development Regulations, the Zoning
Ordinance, or the Design and Construction Standards
Manual, except as may have been approved as part of this
application. Final plats, site plans, and construction
drawings are subject to the applicable Town regulations.
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COUNCIL MEETING November 12, 2019
o 3) Modifications: The following one (1) zoning modification
and one (1) waiver requests are hereby granted as shown on
the Special Exception Plat:
• 1. Modification of TLZO Sec. Sec. 9.3.12, Use
Standards, Kennels
• 2. Waiver Request of TLZO Sec. 12.4, Street Trees
O 4) Architecture: All structures shall be consistent with
building elevations included as part of the Special Exception
Plat.
o 5) Location and Area: The locations of the veterinary
hospital, canine daycare and eating establishment shall be
limited to the areas shown on the Special Exception Plat.
o 6) Limitation on Outdoor Activity: The Applicant is
prohibited from conducting any outdoor activities involving
patients under their care or the canine daycare except for pet
waste station(s).
O 7) Odor Emissions: Odors shall be properly contained
and/or treated before release in accordance with the
following standards:
• a. All indoor kennels will be maintained in a clean
and sanitary condition at all times. Any urine or
feces will be cleaned and the surface disinfected
immediately.
o Pet Waste Station: A designated pet waste station(s) (waste
station receptacle) shall be provided outside and inspected
daily during operating hours to ensure solid waste is
removed from the site.
o Waste Disposal: All pharmaceuticals, vaccines and
antibiotics will be packaged and labeled by manufactures as
required by the FDA. All medical wastes, pharmaceuticals,
vaccines and antibiotics shall be disposed of according to
FDA standards. All animal waste shall be disposed of
according to federal, state, or local requirements.
• Staff recommends approval of TLSE-2018-0002 based on:
o The proposal is in general conformance with the policies of
the Town Plan; and
o The approval criteria of TLZO Sec. 3.4.12 have been
satisfied; and
o The proposal would serve the public necessity, convenience,
general welfare and good zoning practice.
Council Comment:
Council Member Fox asked about the kennel use and that there
was a request to do a modification to do one and three quarter acres
opposed to the two acres but that there is also a restaurant use. She asked
how that affects this and if there is also a standard for this. Mr. Parker
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COUNCIL MEETING November 12, 2019
said that for an eating establishment in an I-1 Zoning District, the only
requirement is that it not exceed 25% of the gross floor area of the building
and this establishment is 9% of the total floor area. Ms. Fox said the staff
report says that the property is zoned I-1, Industrial Park/Research and is
not subject to any existing zoning or Special Exception conditions. Ms.
Fox asked what that means. She asked if that meant the property is not
subject to a Special Exception. Mr. Parker explained that this meant that
it is not subject to an existing Special Exception or an existing rezoning
that would require an amendment. He said it is functioning now as
whatever it is so there is nothing to be amended. Mr. Parker said the
property owner owns the property with no conditions placed upon it that
need to be amended. He said it is a straight I-1 zoning requirement.
Council Member Steinberg said that he recognizes the traffic
patterns in this particular area and noted that all of it is subject to change
as the roadwork occurs in this area. He asked what kind of numbers this
is based on. He said he would expect the restaurant would have a certain
level of traffic. He asked why the Town would not think that traffic would
not have some impact in this area. Mr. Parker said it is going to have an
impact in the area based on the fact that it is going to be constructed but
the traffic impact analysis took into consideration trip generation rates
from a child daycare facility because that is the closest things they could
use to compare for the pick-ups and drop offs. He said the restaurant at
9% and 1,500 square feet primarily used for the patrons as well as the vet
hospital did not indicate in the traffic impact analysis that there are
significant number of trips coming and going especially in the a.m. and
p.m. peak hours. He said that the traffic volumes down there are
extremely low. Mr. Parker said that while there will be trips put on the
road, it will not have a major impact of the functioning of the road or the
site. Mr. Steinberg said that it occurred to him that there is a fairly
substantial development being built a stone's throw away from this
particular application. He noted that should the restaurant become
successful, he imagines that the traffic could be more than what they are
anticipating. Mr. Steinberg said he recognizes the area that it is going in.
Mr. Steinberg asked if the applicant is offering to bank the trees in the
Town's tree bank that it would not be installing. Mr. Parker said it has
not been discussed with the Applicant but they have had some discussions
internally regarding the tree bank. He said the tree bank is specifically
meant for not making canopy requirements and is specific in the
Ordinance for that but not specific for replacement of perimeter lot
landscaping trees. Mr. Parker said they have talked to the Applicant
about placing the trees onsite and they are meeting all of the buffer
requirements. He added that they have indicated that there is not room
on the site for any more trees and that has been what has been relayed to
staff.
Council Member Campbell asked about traffic. He said it is easier
to get back to the site today but it won't be tomorrow. He said Cardinal
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Park will close at some point and will be a right in and right out. Mr.
Campbell said Russell Branch will become a major thoroughfare and right
now the intersections are controlled by stop signs. Mr. Campbell asked if
there are any future plans for signalized traffic. He said this is going to be
a major residential and commercial area and while there's quiet activity
today, two years from now that is going to change. Mr. Campbell said
that they don't want difficulty for their patrons getting access to their
property or business. He asked if they are anticipating at some future
point that they may need some signalized traffic control. Mr. Parker said
there is no indication from the traffic engineer or the applicant's traffic
impact analysis that given its location down towards the end of Lawson
Road down there back where it is that the trips generated from these uses
are going to require offsite improvements of any sort. He added that given
that this is a Special Exception that they cannot request offsite
transportation facilities but it is not anticipated that this particular use
especially given the growth of the area should not have than much impact
on the area. Mr. Campbell said then they don't even consider any
signalized traffic control need for Russell Branch in between Battlefield
and Cardinal Park. Mr. Parker said how it relates to the rest of the area he
does not know but that particular need is not triggered by this use or this
application. Mr. Campbell said he understands that but that the Applicant
is not going into a vacuum which is the point he was trying to make. He
said they are already going into a pre -planned dense area that today looks
one way and tomorrow will look completely different. Mr. Parker said he
would anticipate, noting he is not an expert on the matter but that when
all of the uses in the area are taken into consideration when a warrant is
considered for signalizing an intersection. He just is not aware of any of
these at this junction. Mr. Campbell said he is asking because at some
point if it becomes a problem, he doesn't want the Applicant to come back
and say now they have a problem and look what you did to us.
Vice Mayor Martinez asked when Mr. Parker said it was 87 feet
from Lawson Road, did he really mean the bridge. Mr. Parker said no
that the front of the building as measured to its closest point to Lawson
Road is 87 feet. Mr. Martinez asked if there was going to be parking in
front of it. Mr. Parker said that was correct. Mr. Martinez said he has
some friends that work there that are looking forward to expanding.
Mayor Burk asked if this is only for dogs. Mr. Parker said that the
vet hospital is for animals of all types but the daycare is specific for
canines. Mayor Burk said that when her cat was alive that she did board
her cat across the street so she knows the site well. Mayor Burk confirmed
that with this project that there are no overnights except with the
Veterinary Hospital which would be indoors. Mr. Parker said the
Resolution has a condition in it to reinforce that there is no overnight
boarding of the animals in the Canine Daycare facility. Mayor Burk
asked if the Planning Commission had issues with the buildings itself. Mr.
Parker said a few members made comments about the architecture but the
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recommendation was unanimous for approval. He said it was just mainly
comments from the Commissioners. Mayor Burk asked if they were
taking out any trees. Mr. Parker deferred to the Applicant because there
are some around the perimeter that may or may not need to come down to
facilitate construction of stormwater facilities etc. but that they will be
enhancing definitely along the W&OD Trail along the VDOT front edge
but he did not specifically know the answer. Mayor Burk said she would
ask the Applicant.
Mr. Jack Williams with Christopher Consultants spoke on behalf of the
Old Mill team in attendance: Mr. Mike Edelheit, Dr. Chris Hussion and Mr.
Mark Hanlon who will be running the eating establishment. He asked Council if
they had any question.
Council Comment:
Mayor Burk asked Mr. Williams if they planned to remove any trees. Mr.
Williams said the site is mostly a parking lot that is used by the Post Office for
storage of vehicles. He said that there are some trees along the frontage and
within the parking lot that will have to be removed in order to construct the new
improvements. Mayor Burk said that if there's any opportunity for the Applicant
to add a few trees at some point that would be worthwhile. Mr. Williams said
that they do have a total of 85 trees being planted on the site and over 250 shrubs.
He said there will be a very dense buffer of plantings on the site plan.
Council Member Steinberg asked about the lighting and said he saw the
profiles of the LED lights that they were planning to use. He said he knows that
applicants often mistake color temperature for luminance so often times there are
complaints about this in the downtown areas as street lights are installed. Mr.
Steinberg says that often lumens are way too high and the color temperatures are
way too white. He said research says that color temperatures around 3,400
degrees are much better than 5,000 degrees and much better for wellbeing in
general and for wildlife and so on. He hopes the Applicant will take this into
consideration as this project moves forward.
Council Member Thiel said this is a wonderful idea and is extremely
excited to support this. He said he has taken his family dogs his entire life to Old
Mill so he thinks it's great that they are expanding. Mr. Thiel thinks it is a
wonderful location. He said it is not far from the kennel which is right across the
street which will be super easy for them and a great way for them to expand the
business and to keep providing wonderful care to the Leesburg cats and dogs that
they have been doing for a long time.
Council Member Fox noted that her question did not have any bearing on
approval but thought it curious that they are going to have a Doggie Daycare
where people are dropping of their dogs but that they have an eating
establishment for people who are dropping off or picking up their dogs. She
asked if this eating establishment going to include dogs eating with their owners
or is it just for people. Mr. Williams said he had similar questions when he was
first approached about the idea. He said it makes sense when you hear it from
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them. Mr. Hanlon said that it is an eating establishment for humans but they
look at it as a value add for people who do patronize Old Mill both the veterinary
hospital as well as the Doggie Daycare. He said time is of the essence for all of
them and individuals looking out for their pets by bringing them someplace
during the day, that they may be able to take care of their culinary needs as well
on their way in or out especially as roads become more challenging to get
around. It is seen as a value added service for their customers as well as their
neighbors.
Public Speakers:
Melanie Miles. Spoke to Council in support of the Application.
The public hearing was closed at 9:20 p.m.
MOTION2019-217
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
following was proposed:
RESOLUTION2019-171
I move that Special Exception application TLSE-2018-0002, Sexton Edelheit, LLC
dba Old Mill Pet Center, be approved subject to the conditions of approval and
modifications as enumerated in the October 17, 2019 Planning Commission Public
Hearing Staff Report on the basis that the Special Exception Approval Criteria of
Zoning Ordinance Section 3.4.12 and the use standards of Section 9.3, as modified,
have been satisfied, and further that the one (1) requested modification and one (1)
waiver be granted, because the proposal will serve the public necessity, convenience,
general welfare and good zoning practice.
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 abstain)
15. UNFINISHED BUSINESS
a. 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.
Mr. Brian Boucher gave Council a recap of the previous discussion
regarding repealing the Proffer Legislation.
Council Comment:
Council Member Campbell said that Council has received a lot of
information on this including information from a local citizen as to what hasn't
changed. He said that part of the condition that hasn't changed is that Council
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cannot simply deny an application because they refused a proffer request. He
asked Mr. Boucher if that was correct. Mr. Boucher said that if it was a proffer
request that the Town could prove under these formulas that it was legitimate.
Mr. Campbell said the law says very differently to what Mr. Boucher is saying.
Mr. Boucher said that you can do reasonable requests and what they mean under
the 2016 law is that they are giving the Town the formula for what's reasonable.
He said prior that it was just reasonable conditions and you had to negotiate it
out. Mr. Boucher said now they said for a residential rezoning, they are going to
explain what a reasonable proffer is and it must be specifically attributable and
must create an excess capacity beyond existing public services whether it is
transportation, schools, etc. Mr. Campbell asked if the denial simply can't be
because they refuse to satisfy Council's requests. Mr. Boucher said that was
correct. Mr. Campbell said even if they decided not to offer a proffer, the denial
still has to be more substantial beyond you didn't respond to my proffer. Mr.
Boucher said if the Town's request for the proffer was reasonable under the
circumstances and they refused to honor it, then it is a reason for Council to
argue that the applicant is not meeting the impacts. He asked if you could put it
in those terms. Mr. Boucher said that if you simply said we asked you for a
proffer and you did not give it to us and then they are denied, then you better be
careful that the proffer request better be reasonable. Mr. Campbell said he is
trying to figure what has changed with the new law and if this condition still
exists. He asked about the denial of an application based on a response they think
is reasonable to whatever condition the Town thinks a proffer is warranted. He
said that has not changed. Mr. Boucher said that he thinks the Town can still do
that as long as there is firm ground and as long as the Town can make that case.
Mr. Campbell said now they are asking for mitigation of what the Town thinks
are impacts but that they still can't simply deny the application based on the
refusal to mitigate those standards. Mr. Boucher said the Town either identifies
standards that need to be mitigated that are generated by the rezoning and they
refuse by proffer to mitigate that, Council can still deny a residential rezoning.
He said it is just the window is narrowed as to when you can do it. Mr.
Campbell said there is some question on that and asked for a legal opinion. He
said he was not doubting Mr. Boucher but how the law is read is important on
how the Town acts. Mr. Campbell said he wanted to be sure they had the right
standards and that they are not thinking about that they have the proffer law
changes that they can go back and ask for the world. Mr. Boucher said that no
they could not. Mr. Campbell said that some of Mr. Boucher's example talk
about this through looking at schools as an example. Mr. Boucher said another
thing they changed in 2019 is that they also put a provision in there that said if a
developer offers you a proffer and they sign a proffer statement, they cannot
come back later and say it was unreasonable. Mr. Boucher said before they
could actually offer the Town the proffer and if it was accepted they could still
come back and say they thought about it and now say it is unreasonable. He said
they can't do that anymore. Mr. Boucher said that if they sign something as a
proffer they cannot later use that as grounds to attack the Town for approving or
denying their application. Mr. Campbell said he was trying to focus on one point
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which is the basis of denial for an application and the proffer. He asked if the
denial of an application can or cannot be simply on the basis that they did not
meet the Town's standard of what the Town wanted for the proffer. Mr. Boucher
said that if the standard is reasonable yes but if it is not and the Town has no
grounds then the answer would be no. Ms. Notar said that a few weeks ago at
the LGA conference there was a seminar on the new proffer statute. She said
there were local government attorneys saying that this fix helps but it is not a
complete fix in that developers can now offer signed proffers. If they offer a
signed proffer then that is legally valid and they cannot contest it. Ms. Notar said
it doesn't fix if the Council feels there is an impact and the developer fails to offer
the proffer. She said it does not fix that part. She added that the fix to the statute
is only as good as the developer agrees with the Council. Ms. Notar said that this
is all still in play and that they are all still discussing the implications to the fix to
the statute. Ms. Notar said there was an attorney at the conference that said they
were all overthinking this and the amendments that were inserted should fix
everything. The local government attorneys did not agree. Ms. Notar said that
staffs approach is the most conservative approach. She said once the Eastern
Gateway District is enacted, then that is a small area plan and Council doesn't
have to worry about the statute. She said will all that said that the answer to the
question is if Council finds an impact to a rezoning application and Council says
to the developer that you think there is a large impact to the streets and you think
there is a traffic signal that you think is needed there and the developer says it is
not going to do it and Council denies the rezoning, Ms. Notar believes that the
developer can go back to the statute and say that is an unreasonable proffer. Ms.
Fox said that they can say that but how do they determine this. She asked
Council Member Campbell for the opportunity to ask this question. Ms. Fox
said to her that it seems like a reasonable denial because there is an impact that
the Town is going to have to deal with and they can say no they think it is
unreasonable. Ms. Notar said that they would have to go back to the formulation
in the statute to determine what an unreasonable proffer is. She said those
sections are still there and they did not strike through those sections. Ms. Notar
said what staff is trying to say is that they believe the fix is imperfect. Mr.
Campbell said that he understands and will try to clarify his question one more
time. He said it is not about a proffer and whether it is reasonable or
unreasonable. He asked if a denial of an application can be based on whether or
not they did or did not satisfy the proffer request regardless of whether it was
reasonable or unreasonable. He said if Council is going into this thinking it is
operating under a new law and a new standard and thinking they could get more
because they missed out on opportunities because the Town could not ask for
proffers, if the only negotiation with the developer is that the Town will refuse
your application if you don't meet our proffer reasonable or unreasonable. Mr.
Campbell said he did not want to go into this thinking that is the leverage they
have if they don't have any real negotiation power. Ms. Notar said that is what
staff is saying that Council would not. She said if the developer plays along,
everything is fine. If Council determines that a proffer would satisfy then staff is
saying that Council is still at risk. She said that if Council wants a proffer and
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Council offers a proffer and the developer says no, and then Council denies the
rezoning because they haven't offered that proffer, Council is at risk. Mr.
Campbell said the only safety net is the small area plan. Ms. Notar said that was
correct. Mr. Campbell said that was something they always had as a tool even
with the old proffer law. He asked what they gained with the new proffer law.
Ms. Notar said the developer can now offer proffers. She said that if Council
repeals the Zoning Ordinance that prohibits them now, the developer if they are
smart and wants the rezoning and are experienced in this locality they will offer
signed proffers that will mitigate all impacts. Mr. Campbell said Council could
then ask and listen to proffers. Ms. Notar said that was correct. Mr. Campbell
said based on their own action was to take an action not to listen to proffers. Ms.
Notar said that was correct. Mr. Campbell said but Council has no more
negotiating strength than it did before. Ms. Notar said that was a distinct
possibility.
Council Member Dunn said if Council is going to make a demand for a
proffer, noting that a proffer is a gift and not a demand, and deny the application
because they did not succumb to the demand, they can potentially sue. Mr.
Dunn said that the Town is more exposed to a lawsuit by placing a demand on
what should have been a gift and then deny it because they didn't succumb to the
demand. He said that was in 2015, today or anytime in between. He said that is
unreasonable. He said if this whole argument is about whether the Town as a
community are dealing in an unreasonable manner. He said they weren't in
2015, 2016, 2018 or 2019. He said if they are so protected by the proffer law that
the Town imposed upon itself, noting that the State did not say they could not
negotiate proffers, as other communities did so in a way of making the law
obsolete. He said success was gained and they changed the law. Mr. Dunn said
now staff wants to say that the Town's best bet is small area plans then the
discussion needs to stop now and make every area of Leesburg a small area plan.
Mr. Dunn said to do that is ridiculous. He said the Town has the ability to
negotiate proffers. He said the Town does not negotiate in an unreasonable
manner. Mr. Dunn said that if you were doing that in 2015 you could get sued.
That is why he said the whole idea of being unreasonable if you do this and
unreasonable if you do that but the real issue is that the proffer law in Richmond
never made anything more than what the Town shouldn't have been doing
already. Mr. Dunn said he does not think the Town was doing things in an
unreasonable manner. He said he could not recall any applicant in all the time he
has been here that has stood up and said that is unreasonable. Mr. Dunn said
there have been times when they said that they were not going to be able to meet
a proffer and they just didn't do it and Council moved on. He said he never
heard anybody say staff or Council is being unreasonable. Mr. Dunn said the
question he has is what is exempt. Mr. Boucher said that you are not subject to
the 2016 law. He used the Crescent District as an exempt area. He said that the
Town adopted a small area plan and put the Crescent District in it so the 2016
rules did not apply to that area. Mr. Boucher said that the State law says that you
can get areas in your locality exempt meaning the new 2016 law will not apply if
you do certain things and one of them is create a small area plan. He said if you
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do that it is like the 2016 proffer law never existed and the Town can negotiate
like it did back before 2016. Mr. Boucher said back in 2017 when the Town put
the ban on residential proffers to slow down residential developments to see what
would happen at the State level, the Town said it would do three things. One
was that and the other two was to create two small area plans to exempt large
areas of the Town that had residential development in the future. One of them
was the Crescent Design District and that was done. Mr. Boucher said that is
why Virginia Village even though where you could see the Town could
reasonably could not ask for the extra million based on the proffer statutes
definition of reasonable in 2016. The Town however can ask for that extra
million because they are exempt and the 2016 law never happened. Mr. Boucher
said Council also wanted to put the Eastern Gateway District there as there is
some undeveloped land in the Eastern Gateway could be and staff believes will
have some residential development on it. He said the Town wanted to get that in
an exempt status in a small area plan because again the Town could act like the
2016 statutes never happened. Mr. Boucher said it is about reasonableness and
that the State changed the definition of reasonable. He said what was reasonable
to ask for in 2016 is not reasonable to ask for in the 2016 standard. He gave
excess capacity as an example. Mr. Boucher said reasonable now is only excess
capacity. He said what they can ask for legally under the statute is only you must
address and mitigate the excess capacity. He said in the past developers may say
it was unreasonable because in the past they may say by unit you have 400
dwelling units and they are multi -family that they need to pay so much per unit.
Mr. Boucher said now the argument is that some of those schools have room and
that someone should get the advantage of that. He said that the way that this is
set up is the first developer in time gets the advantage because he gets the excess
capacity. He said there is a difference in the law from staffs standpoint because
the law changed and what is a reasonable law did change. He said what he could
ask for in 2019 is different under Virginia law and that is the point staff has been
trying to make and probably not very well. Mr. Dunn said for him that the point
was made well. He said that pre-2016 there was more flexibility for the Town to
be unreasonable and that after 2016 the Town was required to actually have a
formula to come up with these numbers and thereby having a reasonable
accountability. Mr. Dunn said to make the argument to have the flexibility to go
and be unreasonable he does not think is a good argument. He said he is also
concerned with what Mr. Boucher tried to present in numbers that he used the
term I don't know. Mr. Dunn said that he said he did not know on a lot of
things. Mr. Boucher said on the other one he did. He said this is pretty clear and
he did not want to put all the breakdown because it gets busy but said that it is
pretty clear under the State law. Mr. Boucher said that as a staff member under a
law that says you can only ask for excess capacity is putting the Town in jeopardy
of a lawsuit by saying things like it was 2016. He said he will go with the excess
capacity. Mr. Dunn said in this area he was talking just that. Mr. Boucher said
that the State law gave Council an escape clause for those jurisdictions that want
to be able to ask for more. He said that they can say it is unreasonable and every
developer would agree with Mr. Dunn and a lot of jurisdictions think it was fairer
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in 2016 than it is now and that is just a matter of differing opinion. He said he
can tell Council that the Town gets less proffer money under these rules than they
would under the pre-2016. He said if that is the goal then Council can stick with
the 2016 legislation. Mr. Dunn asked if proffers are allowed in residential
rezonings. Mr. Boucher said not in Leesburg at the present time unless you were
in an exempt area. Mr. Dunn asked about redevelopment. He said if there is an
area being redeveloped and they were putting residential in if it would be open to
any of these issues. Mr. Dunn said it is not just new development but it could also
be redevelopment that results in an additional impact. Mr. Boucher said it
depends on where it is. He said if it is in a small area plan or if the residential
development is in an area that has already had a proffered rezoning then those
are two even if Council comes to amend this those areas that are pre-2016 and
you don't have to do the new law. Mr. Boucher said most of Leesburg they don't
have to worry about the 2016 legislation because it was approved before 2016 and
is an amendment to that the State law says you are exempt and you can act like
2016 never happened. Mr. Dunn said if they were going to put new housing in
an existing housing development it could be open to proffer negotiations. Mr.
Boucher said that it is and it would be under the old way. He said the other way
is if you have small area plans and not every place in Town will qualify but most
of the Town is built out or could be potentially in a small area plan. Mr. Boucher
said the risk overall is not great throughout most of the Town except the Eastern
Gateway which is the last remaining area where they might have some impact.
Council Member Steinberg asked under the current State law as it was
newly written and under the Town's own Ordinance as it is currently written, can
a developer or an applicant offer the Town a signed proffer and can the Town
accept it in the current situation. The Town did not request it but the applicant
signed it and submitted it. Mr. Steinberg asked Mr. Boucher if that was ok. Mr.
Boucher said that it depends on the area. He said that the State law when it
happened in 2016 noted areas that it does not apply to. He said if someone in
Potomac Station wanted to change a commercial area and put in some more
residential the Town could negotiate proffers there and apply the school capita
facilities contribution like they used to. He said that if it is a non-exempt area the
Town Zoning Ordinance today says no that they could not offer the Town or give
the Town a proffer. The Town cannot accept it. Mr. Boucher said if it was
anywhere in the Crescent District and someone applies for a residential rezoning
they could negotiate proffers like it was 2016. He said they can sign them, the
Town can suggest proffers, and they can give the Town proffers. Mr. Boucher
said that they may be considered unreasonable but if they sign them and give it to
the Town then it is clear. They can't come back on the Town and say that the
Town accepted an unreasonable proffer. He reiterated what Mr. Dunn said that
technically proffers are voluntary but that they know in the Virginia system that it
is really a negotiation. He said it is the power the locality has and if the
developer is going to increase the Town's density then the locality is going to
want them to mitigate the impacts. He said the State did not adopt impact fees
where it would make it simpler for all localities. He noted that a lot of states have
them where if there are 200 residential units then you pay a certain amount for
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schools and other items. He said Virginia has not gotten there yet. Mr. Steinberg
said that Virginia has always made it particularly difficult for localities in this
area and continues to do so. Mr. Steinberg said that if it was appropriate to offer
a motion at this time it would be to take this item and move it off into the future
in 2020 until such time as they get the Eastern District Gateway in place and any
other areas that the Town may want to consider and be done with this item for
the evening.
Vice Mayor Martinez said that in pre-2016, those on Council could not
negotiate proffers. He said that they could say that the school proffer doesn't
mitigate my concern but that Council could not ask for a hard number. Mr.
Boucher said it depends on the time. Mr. Martinez said he was talking about pre-
2016. Mr. Boucher said pre-2016 they used the County's school capita facility
and said this is what the County has negotiated what the average school kid
costs. Mr. Martinez said what he was getting at is pre-2016 they couldn't do that
and then say that they couldn't go above and beyond what they were asking for
via the County. Mr. Martinez said that what he keeps hearing about is
unreasonable. He said the only time a developer could sue the Town pre-2016 is
if those on Council did something to force them to make a proffer that could not
ne be proven. He said then if after they passed the proffer the developer could
sue them. Mr. Martinez said that Council would have to do anything negative
for that to happen. He said that after 2016 the developer defines unreasonable
and now the Town is putting process in place to protect itself from the developer
calling the Town unreasonable even when the proffers are reasonable. Mr.
Boucher said that the Town was protecting itself from the State law and not
necessarily blame the developers. Mr. Martinez said the bottom line is that it is
the developer that triggers anything like that. Mr. Boucher said it became much
stricter in 2016 and added the really offensive part was that the developer could
offer you a proffer and the Town could accept it and they could later turn around
and say that it was unreasonable. Mr. Martinez said that was what he was
talking about. Mr. Boucher said that if the developer gets the rezoning and the
proffer is struck then the Town pays the cost. Mr. Martinez says what he is
trying to illustrate is post 2016 the developer got to define what was unreasonable
and the Town implemented a policy and process to protect the Town from that as
much as anything. He said now they are going back to post 2019 and going back
to the state that they were in before. Mr. Boucher said that the States gone
partially there but it didn't go all the way back to 2016 and that standard is still
there of excess capacity. He said that is the new standard for residential
rezonings unless you are in an exempt area. Mr. Martinez said he is talking
about nothing else other than why they have a procedure in place because of 2016
law.
Mayor Burk asked about the examples about the schools and if the school
has 100 openings and you are a development coming in and there are 150
students estimated. She said because the school has 100 openings, a developer
only has to worry about the 50. Mr. Boucher said that was correct. Mayor Burk
asked if the other developments in the area that have been approved are taken
into consideration. Mr. Boucher said they should be if they are approved and he
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believes the School Board does but added that the problem is when there are
several applications that come in at the same time that are not approved but they
are looking at sending kids to the same schools. Mr. Boucher said one of the
dangers is that you could have multiple residential developers come in and if
there are only 100 openings in the school but each application is going to
generate 300 kids that they each get to knock off 100 students because at the time
those seats at the school are not filled and they are technically excess capacity.
Mr. Boucher said that it is still a little unclear and people are worried about that
that they get to double count them in the development world. He said he is
unware of a particular case that answers that question. Mayor Burk said that
could be substantial and make a huge impact on the school system that in of
itself. Mayor Burk asked about the fiscal impact numbers that the Town has for
transportation. She asked Mr. Boucher when the last time those numbers were
reviewed. Mr. Boucher said it has been over a decade. He said all they have done
is use a cost of living increase. He said it is something to look at. Mayor Burk
asked what that would entail and how long it would take. Mr. Boucher said that
he is not sure he knows and would have to talk to Mr. Calvin Grow in
Transportation and Ms. LaFollette to see what they think. Ms. Berry Hill said
that this is something they are having their transportation consultant look at
along with the Town Plan update. Mayor Burk said she thinks it is long
overdue.
To establish the enactment date for the Ordinance, Mayor Burk asked Mr.
Boucher the status of the Eastern Gateway District Small Area Plan. Mr.
Boucher said it is at the Planning Commission and that the Commissioners want
to look at it again but it would not be until January. He said that the date of
January 1, 2020, would no longer apply. Ms. Notar said that they could make
the enactment effective with the adoption of the Eastern Gateway District Small
Area Plan.
MOTION2019-218
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
following was proposed:
ORDINANCE 2019-0-018
Amending Zoning Ordinance Section 3.3 to Repeal the Prohibition of Acceptance
of Proffers for Rezonings with a Residential Component with an enactment date
effective with the adoption of the Eastern Gateway District Small Area Plan.
Council Comment:
Council Member Dunn asked if there are any applications that have been
affected by the current regulations of no proffers. Mr. Boucher said only one and
that is the Westpark rezoning which is coming to Council in a few weeks. Mr.
Dunn confirmed that it is coming to Council without the ability to discuss
proffers. Mr. Boucher said that was correct. Mr. Dunn asked if he developer has
made any hint that they would like to be able to consider proffers. Ms. Notar
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said yes. Mr. Dunn asked why staff did not consider putting the Westpark area
into a small area plan. Mr. Boucher said because it cannot meet the criteria for a
small area plan in the State Code. He said that the Town would have to allow for
a 3.0 FAR on some portion of that area. Mr. Boucher said there are four other
requirements that they don't meet. He said that was the reason. The Town did
not see in that residential area ever allowing that much commercial FAR. He
said that it is mostly built out. Mr. Dunn said that in the small area plan for the
Eastern Gateway he had some email exchanges with Mr. Boucher about that.
He said the small area plan is just a plan and there are no Ordinances within the
plan. Mr. Boucher said that was correct. Mr. Dunn said the Ordinances that the
Town would use to determine what happens in the Eastern Gateway Small Area
Plan are the Town's current Ordinances. Mr. Boucher said that if the Plan is
adopted it sets the tone, character and vision and then the Town adopts
Ordinances in the Zoning Ordinance and elsewhere that fulfill those visions. He
said adopting the Plan itself does not create those other regulations. Mr. Dunn
said there's no teeth in the Plan, it's just a Plan. He said it is a guide to use going
forward when considering land use applications and other public facilities. Mr.
Dunn asked when staff is planning to get Council the design standards that
Council requested be prioritized to be done by the end of the year and it was
related to the small area plan. He said he knows the Director asked for an
extension. He wanted to know when those are going to be done and is
something that the Planning Commission brought up regarding wanting more
design standards in the plan. Ms. Berry Hill said there are two separate items that
are going on. She said there's the Eastern Gateway Small Area Plan and the
policies that are in that document. She said the Planning Commission decided to
continue discussion of those policies including the architectural design policies in
the plan in January. She said that was when they will be discussing that. Ms.
Berry Hill said if they take action on that plan in January on that document it
could be back before Council in February. She said what she believes Mr. Dunn
is talking about is in September, Council approved and initiated through a
resolution proceedings to look at the Zoning Ordinance for architectural
regulations. Council approved that resolution and part of that resolution also
said that the staff would come back by January to tell Council how much it
would cost to work on that project. Ms. Berry Hill said that the reason they need
consulting services to work on that project is to develop specific architectural
regulations and staff is not qualified to do that. She said they would be working
with an architect and a zoning professional to do that work. She said the decision
in that resolution was to come back to Council by January with those costs to get
direction on how Council wants to proceed. Mr. Dunn said he did not know if
that was absolutely correct. He said that the request by Council was to have the
design standards done by the end of the year. Mr. Martinez asked for a Point of
Order and said that this discussion was not relevant to the motion. Mr. Dunn
said it was relevant. Mr. Martinez said that Council is discussing passing and
Ordinance and not discussing the design standards. Mr. Dunn said in the
discussion of the Eastern Gateway Design Standards has always been a priority
that Council has. He said he realized that Mr. Martinez may have other things to
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do but what he is discussing is relevant to the issue and he is in his time limit and
it is germane to the issue. He said he would be done if he could get his questions
answered by staff. Mayor Burk requested Mr. Dunn to be cordial and not to
make unprofessional remarks. Mr. Dunn said he was not the one interrupting.
Mayor Burk asked him to keep his remarks to the proffer law and keep it to that.
Mr. Dunn said that was what he was trying to do as it related to the Eastern
Gateway District. He said that is the only thing being affected by this other than
Westpark. Mr. Dunn said the request was to get the design standards because
they were talking about how important those were to the Eastern Gateway
District. He said they wanted to get them done by the end of the year and staff
came to Council asking for an extension and in that staff had said that they
would probably need some funding. Mr. Dunn said that Council didn't come
and say that they were going to give funding. He said staff asked for it. Mr.
Dunn said all he was asking for was when staff asked for the extension when staff
anticipated that being done. Mr. Dunn said now to give staff carte blanche to go
out get this stuff done whenever Eastern Gateway is done. He said that is what
the motion is tonight is that this will be enacted whenever the Eastern Gateway is
done is when the proffer regulations will be changed. Mr. Dunn said he was
trying to get a handle on when they are talking. Ms. Berry Hill reiterated that the
area plan is before the Planning Commission. She said if they take action on the
area plan in January that they could get back to Council for action in February.
She said that it what is being discussed Vis a Vis the proffer legislation which is
before Council. Mr. Dunn said as a side note to that asked Ms. Berry Hill when
she anticipated being able to get the design standards that Council requested to be
done. Ms. Berry Hill said that Resolution 2019-158 specified initiation of the
Zoning Text Amendment for architectural regulations and secondly that staff
would come to Council by January to request funding for that work. Mayor
Burk said that by January they will be back asking for funding. Mr. Dunn said
that it seems that the desire of Council is to let this stuff continue to go on and
Council has the situation that they are in currently with lack of design standards
prolonging issues in the H-2, prolonging the East Market Street, having to redo
the Crescent District after years and getting the same stories from staff time and
time again and now they are wanting to prolong the ability to negotiate proffers
based on Mr. Boucher's words `I don't know'. He said it is a shame that they
have had to come to this that the goal of this legislation was to stop Richmond
from doing certain things and now Council has said that the majority want to
repeal the proffer legislation that was self-imposed and go ahead with restricting
itself and that staff wants to say restriction is good and that means more
flexibility. He said he doesn't get it.
Council Member Fox said there is the area plan and then the details. She
asked how Council can pass a plan without the details. Mr. Boucher said he
wouldn't think the plan would get adopted without the details. Ms. Fox said that
there were two separate things and that the Planning Commission was addressing
the area plan and that Council would address things later. Mr. Boucher said the
other thing that was being talked about was the Ordinances which is not that
plan. He said it is a separate thing and it becomes law. He said the plan is the
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guide but the Ordinance is the law. He said that he thinks that's it. Mr. Boucher
noted there is detail in the plan but it is more general because it is a guide and the
Ordinances should come out of the plan and be the fulfillment of the idea and
details that are in the plan.
Council Member Campbell said the only advantage of passing something
tonight means they don't have to pass it later because all action is postponed.
Mayor Burk reread the motion as proposed to repeal the Ordinance
effective with the passage of the Eastern Gateway District Small Area Plan.
Council Member Dunn made the following motion to change the effective
date to January 1, 2020.
MOTION
On a motion by Council Member Dunn, seconded by Council Member Fox, the
following was proposed:
ORDINANCE Amending Zoning Ordinance Section 3.3 to Repeal the
Prohibition of Acceptance of Proffers for Rezonings with a Residential Component
with an enactment date of January 1, 2020.
Council Comment:
Council Member Dunn said that this was originally requested for this to
be done and it was talked about after the first of the year when Richmond said
they were going to change the law. It went into effect in July and Council was
told at that time that it shouldn't be an issue with getting it done in July and then
Council made a motion to get it done and thought it was done but it wasn't.
When staff was asked to get it done immediately, staff said no but we can do it by
January 1, and now it is indefinite. Mr. Dunn said he would appreciate it if
Council can stick with January 1 which is a far cry from where they were.
Mayor Burk said that would make it null and void because they can't get
the Eastern Gateway to them by January.
The motion failed by the following vote:
Aye: Dunn, Fox, Thiel
Nay: Campbell, Vice Mayor Martinez, Steinberg and Mayor Burk
Vote: 3-4
Mayor Burk called for a vote on the original motion with an enactment
date of the adoption of the Eastern Gateway District Small Area Plan.
The motion was approved by the following vote:
Aye: Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk
Nay: Campbell, Dunn, Fox
Vote: 4-3
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MOTION2019-219
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
following was proposed:
RESOLUTION2019-172
Amending Chapters 3, 6, 9, 10 and 11 of the Leesburg Town Plan to Address State
Legislation Related to Proffers for Developments Containing a Residential
Component
The motion was approved by the following vote:
Aye: Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk
Nay: Campbell, Dunn, Fox
Vote: 4-3
16. NEW BUSINESS
a. None.
17. DISCUSSION
a. Annexation.
Council Member Dunn requested that this discussion be moved to a future
Work Session to be determined by the Town Manager that is most convenient for
him and staff.
MOTION
On a motion by Council Member Dunn, seconded by Council Member Fox, the
following was proposed:
To defer the discussion on Annexation to a future Work Session as determined by
the Town Manager.
Council Comment:
Council Member Dunn said he asked for the removal earlier. He said that
he believes the motion to take this off the agenda earlier in the evening was one
that is pretty standard for Council for when you are the maker of the issue, which
he was, that when it is requested to be removed from the agenda that it normally
is removed. He said he believed the three people that opposed it were the same
three people that opposed having the discussion in the first place. He said now
that he has made the issue that the information provided to them by staff to be
able to effectively discuss this issue is limited because he received information
from staff as late as 4:00 p.m. He said that those people that were opposed to
bringing this issue forward in the first place now want to force a discussion which
leaves him to think there are other motives to try and stymie the discussion on
annexation to begin with. He added that his original request was to have this at a
Work Session which this is not. Mr. Dunn also asked Council have numbers at
the time when it was brought up so that Council can have a legitimate discussion.
Mr. Dunn said the numbers were not given to Council until 4:00 p.m. He asked
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Council to be reasonable as they have shown the same reason with other people
who have made similar requests that now there seems to be more of a political
agenda involved and issues with the requestor instead of the issue. He said don't
shoot the messenger. He asked for the discussion to be done at a future Work
Session which is what the original request was and is not unreasonable.
Mayor Burk said that she would be in favor of listening to the annexation
discussion at this point and that Council does have information in front of them
and that outside counsel is present. No decisions or action are being taken so she
said they can start the discussion and if Council so desires to continue it into a
Work Session it can be done.
The motion failed by the following vote:
Aye: Campbell, Dunn, Fox
Nay: Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk
Vote: 3-4
Mr. Dentler and Town outside Counsel Mr. Greg Haley, Esq., with
GentryLocke gave Council an overview of the potential annexation process.
Key points:
• Mr. Dentler said that Council approved 2018-117 that was approved on
September 18 and was amended twice and initiated the voluntary
Boundary Line Adjustment (BLA) for Compass Creek also known as lA
of the JLMA and directed staff to start studying other areas of the JLMA
known as areas 1 and 2.
• Mr. Dentler said the Loudoun Board of Supervisors changed the County
Comp Plan last summer that made Loudoun Water the primary utility
provider in the JLMA. He said that impacts the Town greatly since the
Town has always planned for this as far back as the 1980s and
infrastructure is there for the facilities that are seen and infrastructure as
well in the areas of Microsoft.
• Mr. Dentler said in reaction to that, Resolution 2019-097 identified four
specific action steps for staff: file a lawsuit to challenge the County's
Comp Plan's amendments; directed staff to initiate studies on all of the
areas in the JLMA areas 1, lA and 2; appropriate $150K for outside
Counsel support and outside studies (no money has been used for studies);
directed staff to continue to negotiate with the County to try to resolve this
issue in regard to the initial resolution which is to follow through with the
BLA of the Compass Creek area.
• Mr. Dentler advised that the Town filed the lawsuit right after on July 19.
He said it wasn't served which Council was notified of this multiple times
as well in Closed Session and the rationale for that was to keep the
negotiations open with the County. If the lawsuit is served, the County's
policy which was made very clear is to end all conversations with the
Town on this topic. Mr. Dentler said there would be no ability to try and
bring the BLA process into play for Compass Creek. He said the Town
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served a FOIA request upon the County for information and the Town
has made progress on the BLA parcels in play at Compass Creek.
• Mr. Dentler said the second direction was to initiate the studies which
they have done only internally. They were received today and there have
been no outside consultants that are preliminary in their draft proposal
format. He said they need time to review those and that they will be
discussed with Council further.
• Mr. Dentler said the third area was that Council appropriated $150K in
funds to help with outside legal counsel and to do outside studies. He said
they have not done any studies but this is seed money to start the process.
He noted that if they go further into any annexation down the road the
costs will rise and those are decisions that Council will have to make.
• Mr. Dentler said the last item was to work with the County which they
have done. He said they are working with the property owners. He noted
the County requires consent from the property owners for the BLA to
move forward as that is their practice. Mr. Dentler said they have worked
with Ion and Peterson and they have Ion's consent, At Home's consent
and working with Peterson for their consent. He said there are actions
before Council to deal with that. He said they are continuing
conversations with the Town and the County on the BLA process. He
said they are very aware of where the Town is in the process. He added
that they are working with Loudoun Water and noted that Loudoun
Water is going through a master plan process now to determine how they
would serve the JLMA since they have now been given the direction to do
so. He said ultimately if a developer wants to develop in the JLMA they
can decide if they want to work with Loudoun Water or the Town.
• Mr. Haley said there is a provision in the State Code that has been there
since 1979 for a voluntary annexation process where Towns and Counties
can enter into an agreement for voluntary annexation of areas to the Town
and the Town would make commitments for service or infrastructure
improvements or the parties would agree to share revenue. He said there
have been dozens of these agreements and he has done quite a few of
them himself. He said it has been a very successful process but noted it is
expensive. He said it requires the Commission on Local Government's
review and review by a three judge court and the courts always approve it.
The Commission on Local Governments always approve them. He did
say it is expensive and does take time.
• Mr. Haley said a contested annexation is pretty rare in Virginia and that
there has not been a successful contested annexation in probably 10-15
years. He has been involved in several contested annexations both
successful and unsuccessful over the years and in this case given all the
facts about Compass Creek and other areas like area lA and area 2 this is
a good annexation case if the Town and the County were not able to reach
an agreement. He said both of the processes are complex. They are
detailed and they are data heavy. He said they require a compilation of
substantial information. He noted none of which is necessary if there is a
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BLA. Mr. Haley said if there is a contested annexation it is divisive. He
said it should be avoided at all cost and that the Town's actions to date
have been geared at working with the County and reaching an agreement
with the County. Mr. Haley said in a contested annexation the outcome
is uncertain and the facts of this case make an annexation strong and he
would be happy to talk about that later. Mr. Haley said annexation is
warranted when there is development on the edge of Town boundaries
that uses Town utilities which is accessed through the Town street system
and where those property owners would benefit from enhanced Town
services such as quicker law enforcement response or enhanced snow
removal responses. He said that would fit in very well with the areas in
the JLMA. He said the logic is that you want to match the Town's service
areas with its boundaries. Mr. Haley added that one of the things the
court has looked at is if there is a development pattern where there is a
rapid development activity on the boundaries of a town using town
utilities accessed through town streets is a fact pattern that supports
annexation.
• Mr. Dentler said Council will have some decision points moving forward.
He noted Council has not given any direction to date to pursue
annexation. Mr. Dentler said that Council does have some decisions
upcoming which will include how to handle the Microsoft property, the
Tuscarora Crossing Development and how they would deal with area 2
which is the River Creek and Potomac Station areas. He said Council will
also need to decide some utility requests that will come before Council to
extend or not.
• Mr. Dentler said the Compass Creek area is 1A so there will be an action
coming before Council possibly by the next meeting if the Town wants to
extend utilities to Microsoft.
• Mr. Dentler said Area 1 is Tuscarora Crossing and is an area that Council
will need to decide if it wants to try to do a BLA or annex all or part, etc.
• Mr. Dentler said that Area 2 is Potomac Station and River Creek and are
decision points that the Council will have to make as well. He said it is
almost all developed area for the most part.
• Mr. Dentler said summarizing Council's decisions: there's Microsoft
decisions; actions on the Peterson BLA parcels on zoning and ordinance
amendments; special exception requests that are part of Peterson's request
to come into the Town; potential revenue sharing arrangement with
Loudoun that the Town may want to pursue on Microsoft as well as
Loudoun Water and how the Town will work together; BLAs and
annexations.
• Mr. Dentler said Council received the financials today and staff had no
intention of reviewing them with Council at this meeting. He said this is
a public discussion so that residents know what they are talking about and
what is annexation and what are the areas that they are looking at.
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Mayor Burk asked if they were comfortable with Council asking questions in
public. Mr. Dentler said that everything that has been seen and discussed so far
is public but the financial information that Council received is still confidential.
The recommendation is for Council to review and make a recommendation to
staff if they wish to make the information public. Mr. Dentler said Mr. Haley
will advise Council if he does not believe a question should be answered in public
or not but if the questions stay within the general parameters of what was already
discussed then they should be fine with answering the questions.
Council Comment:
Council Member Thiel said the reason he voted for this discussion was
because it is for the public interest to know what Council is doing. He said that
there is additional information that has come to Council recently but thinks it's
their duty and they owe it to the residents and taxpayers to let them know what
they are doing. He added that there are a few items that he wants to discuss in
Closed Session.
Council Member Fox asked about the County requirement for BLAs. He
said that they are requiring that they need all property owners consent. She asked
if the Town has that yet. Mr. Dentler said that was correct in that they needed all
property owners consent. He reviewed the Compass Creek parcel and noted that
the Town has Ion's consent which is also Peterson, they have At Home's
consent, but they don't have Walmart's consent yet. Mr. Dentler noted the areas
noted in the gold or brown on the map are the Peterson parcels and some of them
are up for discussion. He noted that the area along the Greenway is not up for
conversation yet. He said they are still considering their options but showed
them the remainder of the areas they are looking at. Mr. Dentler said they have
asked for certain legislative remedies that are at the Planning Commission level
and then will be coming to Council. He said those will be decisions that the
Town has to make. Mr. Dentler said if the results go the way they want then
they have consented to come into the Town. If they don't then they will have to
reassess. Ms. Fox said that is only conditional approval on one parcel. She
asked about the Walmart property. Mr. Dentler said Walmart has not consented
at this time and they are still working with them. Ms. Fox asked what happens if
they don't. Mr. Haley said the Peterson BLA will establish an important
precedent of the conditions that will make a Boundary Adjustment suitable. He
said if you look at that then Walmart would be an island of County area almost
completely surrounded by the Town. Mr. Haley said the Town could make a
compelling case with Walmart that it is in their financial and jurisdictional
consistency best interest. He said there are a lot of reasons for them to say yes.
He said they could go back to them and say that Peterson has agreed to it and
everyone around them has agreed to it, that they should too and let's make it
happen.
Council Member Campbell said that they have opened a door and he
voted against this discussion not because it wasn't in the public interest but partly
because they were not really ready to discuss. He said part of the whole
conditional proposals are really serious in the sense that there is no guarantee that
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it is the best interest to accept these conditions. He said that needs to be
understood by the public. He said that they have also put it out there and the
Board of Supervisors has put it out there that they are ok with the BLA but good
luck. Mr. Campbell said they have nothing to lose and if the Town doesn't pass
these conditions then they want to talk about annexation because of the Town's
failure to negotiate an agreement. He said they also put it out there that the
Town is going to sue and then withhold the suit as if that gave them any more
leverage in which he doesn't agree. He said now Council wants to talk about
where they are and what they have achieved which is nothing other than a lot of
conversation. He said they don't have any agreements in the Town's pocket. He
said they have conditional agreements but no progress on what they can achieve
financially. Mr. Campbell said he knows that they have received new numbers
but to tell the public that the driving force is economic and these are the
advantages and disadvantages if they accept these conditions. He said they want
to have those conversations behind closed doors. He asked what they are telling
the public besides a review of the timeline versus really telling them what is at
stake and spending money for them whether it is a good cause or a bad cause and
what they really hope to achieve if this does happen. Mr. Campbell said there are
also missing pieces. He said they always heard in Closed Session that Loudoun
Water wasn't prepared to do this and that the Town has some advantage and
then the Town finds out what he already assumed is that they are willing to move
forward with or without the Town. Mr. Campbell said there are a number of
things that they really need to come to grips on in conversation regardless of
whether they want to have that discussion in private and not in public that is ok.
He said there is some level of disagreement with the information that they have
been receiving and how that information is viewed. He said some people may
view it one way, he may view it another. He said he may have one strategy and
may disagree. He said he has written some of those disagreements but it is not
clear that if all else fails that annexation is the right move. He said if all else fails
it fails because Council could not come to an agreement on it not because the
County got in the way or because Microsoft was hostile or Walmart. He said he
didn't agree that they should have moved in the first place and now the old
Walmart wants to be used by the County so they didn't achieve anything
financially there and there is nothing for the people. Mr. Campbell said there is a
lot of open dialogue and open frustration. He believed there is a need for open
conversation about where they are and what direction they go. He said he was
not sure they were willing to have this open conversation. Mr. Campbell said he
appreciated the timeline review that they already knew about things that have
already happened, it does not bring the public further into the conversation.
Mayor Burk asked Mr. Haley from what was just shown if he felt as
though the Town was making good progress and if the Town was in a good
position to get a BLA in place. Mr. Haley said he is pleasantly surprised by the
progress that has been made. He did not think it would move as quickly or this
positively. Mr. Haley said he understands Mr. Campbell's concerns and they are
valid concerns. He said that the Town staff has worked with Peterson. He said
Peterson is a sophisticated and self-interest entity and know how to take care of
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themselves. He said the Town staff has gone to them and said here are additional
services that the Town can provide and here is the reduced utility rates you will
realize and here are the additional tax costs you will incur and it is a good deal
for you as a property owner. He said Peterson has reached that conclusion. Mr.
Haley said that they have said that they want to make sure that they maintain
their entitlements. He said that everything they got from the County they want to
make sure they can continue to do and is why they conditioned their consent on
that agreement. Mr. Haley said they also said they would like for you to consider
a rezoning request they were going to make anyway. He said for the I-1 property
they were going to come to the Town no matter what and the Town was going to
have to deal with it. Mr. Haley said now it is all coming at one time instead of in
sequence. He reiterated that the Town has made a good case as to why it benefits
Peterson and Peterson has accepted that case. He said what they have done so far
is consistent with people who want to achieve that goal. Mr. Haley said they
have changed their position somewhat but situations change. He said the Town
staff has worked with At Home and At Home has consented. He said At Home
withdrew some of the conditions they made at one time. He said that he has not
done any of this and that it was the Town staff and thinks they are doing a fine
job. Mr. Haley noted that working with Walmart is a bigger entity and is a little
harder to get through the layers to get to the people they need to get to. He said
that the Town staff was able to do that. He said the decision is being weighed by
Walmart and they are wrestling with it and they have been inconsistent with their
responses. He said they have been working through their issues. Mr. Haley said
the Town staff has worked with Microsoft and they have discussed what it will
cost to put in the Town's utility system and what services may be available
through the Town and the possibility of Microsoft coming into the Town. He
said there are some benefits to Microsoft coming into Town. Mr. Haley said that
Microsoft has requested a commitment letter and all of that will come to Council
on November 26 and Council will need to decide if the Town will approve
Microsoft as a very significant out of Town customer and what terms would be
associated with that approval. He said that is a huge amount of work contacting
all of those companies all of whom you have to find the right people to talk to.
Mr. Haley said that Town staff has coordinated with the County on the BLA and
letters have gone out to all the property owners and public hearings have been
scheduled. Public notices have been published. He said all of that has been done.
The Zoning Ordinance amendments to preserve the development entitlements
under the prior County development approvals have been drafted and redrafted
and reviewed by all the lawyers of all the different property owners. Mr. Haley
said that process which he has been involved in has been difficult but they have
gotten through it. He said in working with Loudoun Water they have been
analyzing what Loudoun Water says they are going to do, what they can do, how
much it is going to cost, how long it will take and what impact it will have on
Microsoft and on Tuscarora Crossing. He said frankly for anyone who wants to
develop in the next two to three years, the Town is the only provider. He said if
Microsoft wants to develop its project in the next three years, it is probably going
to take Loudoun Water at least a couple of years to be able to serve that area. He
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added that if Tuscarora Crossing wants to develop it's going to take at least a
couple years as well. Mr. Haley said they have prepared financial projections
and studies that has been a cross disciplinary effort and the Town is on the verge
of achieving the Peterson Boundary Line Adjustment which will be the model for
ones that come behind it. He said he is pleasantly surprised by it and thinks the
reason it works is that the Town has the utility system, the cost structure works
and the Town has law enforcement capabilities and snow removal. He said if the
County is doing snow removal for Compass Creek, when do they get there, how
do they get there kind of thing and it is all using the Town's street network. He
said the Town has a good case and it has made its case.
Council Member Dunn asked if the BLA process would be the same in
areas 1 and 2 as they are in area 1A. Mr. Haley said it is very different for BLA.
He said for area 1 which is Tuscarora Crossing that it is just like Peterson so in
that way it is the same. He said Tuscarora Crossing has an accelerated schedule
and they are building Crosstrail Boulevard so they have many reasons to respond
to these issues just like Peterson has. He said it is certainly possible and maybe
likely that Tuscarora Crossing will be coming to this Council in the next 12
months and saying sign us up as an out -of -Town customer and what are the
terms and conditions for that. He said that is likely to come back. He said there
is a 50/50 chance for them to come back. Mr. Haley said the rest of the
ownership in area 1 is that there are a lot more property owners out there and it
would be hard to organize it. He noted the County is a huge property owner in
there as well. He said Tuscarora Crossing is the big property owner and they are
the prize. He said he just doesn't know enough about the other pieces of property
out there. Ms. Notar said Twin Creeks is another that is in area 1 as well. Mr.
Haley said Twin Creeks is similarly situated to Peterson. He said they are a
developer and they want to sell land. Mr. Haley said that area 2 is a very different
situation. He said there are developed neighborhoods with 9,000 residents. He
said the financial situation is different as well. The service issues would change
as they would benefit from rapid police response, snow removal and he was not
100% sure what they do with residential trash for this area and how much of a
difference that would make. He said that is a different debate. Mr. Dunn asked if
it was feasible to do a BLA into or is it better to do an annexation. Mr. Haley
said he thinks it would be difficult to do a BLA under the terms and conditions
imposed by the County because of the sheer number of property owners. He said
there are some counties that have a 50% rule or a 75% rule. He noted
Mecklenburg County says they will do any BLA for any area that has 75% of the
property owners in agreement. He said they have a lake with a lot of residential
development so that there that works. Mr. Dunn asked if Loudoun County has
any rules. Mr. Haley said he was not certain but did not think so. Mr. Dunn said
he did not think there were either. Mr. Dunn said it seems like it is a moving
target. He asked what is involved in the workload to start working on annexation
as a parallel track. Mr. Dunn said the reason he asks is because while it is
reported that the Town is making great progress that according to the County
rules it only takes one property owner to stymy the Town. He said if there is one
owner dissenting, then the process is done and the Town can't get it done. He
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asked if the Town wants to go down a single path to get to an objection or try to
take parallel routes to get to that. Mr. Dunn said what he is trying to figure out is
what would be the initial work to start on annexation and also letting the message
be known to those property owners that 1) in case you are wondering the Town
definitely wants to serve you water and 2) the Town definitely wants to be
exercising the Town's rights within the JLMA to acquire the area through BLA
and/or annexation. He asked if that is a strategy that can be used to help move
along some of the feet dragging in the BLA. Mr. Haley said that area lA there
are only five or six property owners and he believes that the Town is in touch
with all of them. He said it looks like Walmart is uncertain as to what it wants to
do. He said he would expect that the Town would be able to make a compelling
case to Walmart. Mr. Haley said it is a good deal for Walmart and they should
seriously consider it. Mr. Haley said Area 1 with Twin Creeks and Tuscarora are
similarly situated to Peterson as they are large property owners. He said that he
doesn't know how many property owners there are in area 1. Mr. Haley noted
that a lot of the roads in this area are not in great shape. He said it is steeply
sloped and the Town may not want it all. Mr. Haley said that the Town would
want to do a study to determine what in fact it really wants. He said area 2 is
completely different and he has advocated at the staff level and thinks is a good
strategy is negotiate until you have exhausted the negotiation. Mr. Haley said
once everyone has achieved what they want to achieve and then the Town
Council can say look at where they are now and decide what is in the Town's
interest and what is in the property owner and citizen's interest. He said
alternatively they could convince the Board of Supervisors to not require property
owner consent and noted that there is no legal requirement to do so. Mr. Haley
explained what is required to initiate an annexation. He said the Town has to
prepare what they call a notice and there is a set of rules with the Commission on
Local Government and it is usually one to three three-ring binders absolutely
stuffed full of data. He said it includes how many Police Officers, how many
Police cruisers, patrol policies, how many fire trucks, and how many paid
employees versus volunteers. He said every service the Town provides would be
exhaustingly discussed as would the Town's annual financial statement and the
trends looking back 10 years. Staff would have to explain all of that. Mr. Haley
said one of things that they would show is the efficiency of the Town and how it
gets bang for the buck. He said he has worked on a lot of Town and County
efforts and noted that Leesburg has a very efficient government. He said Council
is close to it and may not see it but said that Leesburg is very efficient and thinks
that they could make a compelling case for the quality of the government. He
said it is huge process that will take several months and is a lot of work. Mr.
Dunn said his understanding of the water issue is that the dormant water
litigation issue is an issue regardless of whether the Town is trying to do a BLA
or Annexation. Mr. Haley said it is independent of the BLA. Mr. Dunn said the
only part they can bring into this is that if they continue down the path of the
BLA and get close to the end of it and get nowhere a lot of time has gone by and
it moves Loudoun Water closer to that point to where they can now be a
legitimate competitor in the JLMA. Mr. Dunn said there is a clock ticking on
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this. Mr. Haley said he agrees with Mr. Dunn that the clock is ticking and
Loudoun Water's capabilities may be changing. He said that could happen
anyway and the pending litigation gives the County and the Town an
opportunity to clarify a master service agreement. Mr. Dentler said that
Loudoun Water does not build the infrastructure. He said the developer will
build the infrastructure. Mr. Dentler said that while Loudoun Water can plan
and they can look at how to service that area but they are not running the pipe up
there. He said if the developer wants Loudoun Water, they are going to have to
pay for all of that infrastructure which includes all the capital costs and all of the
availability fees. He said they will have to make a decision to invest all of that
money to tap into Loudoun Water or is it more efficient and cost effective to tie
into Leesburg because they are already there. Mr. Dentler said a lot of times
people don't think about how Loudoun Water operates. He said they don't do
pro rata agreements like Leesburg has done. Mr. Dunn said that if Loudoun
Water is able to pursue those discussions which they currently are due to recent
decisions at the Board level which would be nice to get with the new Board to see
if they can't change that. He said that would help a lot. Mr. Dunn said all things
being reasonable, what is the expectation of being able to wrap up the BLA. Mr.
Haley said the Peterson deal should be wrapped up in January unless something
bad happens. He added that if something happens that doesn't meet their consent
conditions then there could be a following up negotiations but he would expect
the Peterson BLA will be complete during the first quarter of 2020. Mr. Haley
said he would expect Walmart to make a decision one way or the other shortly
thereafter. He said he thinks the Town Council decision on November 26 with
Microsoft will impact the Microsoft decision on how the Town phrases the action
to approve Microsoft as an out of Town customer. Mr. Haley said for Tuscarora
Crossing and Twin Creeks that the Town is in a good position to wait and see
because he thinks if it costs $13M for Loudoun Water to get out there and the
Town is already there and Loudoun Water is going charge Tuscarora Crossing to
extend where are they going to get the service. He said it becomes easy at that
point. He said there could be something the Town is missing and maybe
something they don't know about but right now it doesn't seem to be either for a
public policy utility perspective or a cost perspective a reasonable decision to go
with Loudoun Water for Tuscarora Crossing rather than the Town. Mr. Dunn
said that Mr. Haley suggested that it would be best for the Town to exhaust the
BLA approach before continuing or moving on to annexation or a different BLA
approach. Mr. Dunn asked how far does the take some of the moving targets
some of the property owners have placed before the Town where the Town has
been told they are good to go after you give us this, the Town gives it to them and
then they ask for more. Mr. Dunn asked how does the Town know that this
target does not keep moving not from January but on into April and then into
August and then the Town is into January of the following year. Mr. Haley said
that he believes Council will know that early in 2020. He said the County will
have an opportunity to approve the Peterson BLA probably before the year is out.
He said if Peterson intends to withdraw its consent then it would need to do it
then. He said he did not think they can kick the can down the road very far and
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noted that the intentions of the parties will become very clear. Mr. Dunn asked if
anyone else requested being brought into the Town related to this either through
BLA or annexation. Mr. Dentler said not that he is aware of. He said the only
one that they have is a request from Mr. Dennis on Sage Hill Farm to connect to
the Town's sewer. Mr. Dunn confirmed that this is not to be brought into the
Town. Mr. Dentler said that was correct. Ms. Notar clarified that the At Home
consent did not come in in time to be included in the Peterson BLA. She said the
Peterson BLA is the Peterson properties and that is what has been advertised by
the County and the Town. She said the Peterson properties, Ion and the Town
properties are part of the Peterson BLA. Mr. Dunn said that the Council has had
a lot of open discussion tonight which he thinks is very good and think that a lot
of people in the public are appreciating learning this. He said because the Town
does not have an official water litigation and no suit that has been submitted
because it is sitting on the Courthouse lawn, he asked why is the Town needing
to go into Closed Sessions to discuss any of these issues. Mr. Dunn said that he
knows the State gives Council the ability to go into Closed Session for almost any
reason but for an open process in an open body what is it that is being discussed
that has to be so secretive. Mr. Haley said in terms of the legal authority to go
into Executive Session the State law says that issues involving boundary
adjustment and revenue sharing has a very broad provision that says the Freedom
of Information Act meeting requirements do not apply to Town Council meetings
to discuss boundary adjustment issues. Mr. Haley said they don't even have to
do the motion or the certification because it doesn't apply. He said the Town
does it anyway because it is just good policy. Mr. Haley said so the Town can do
it but there are three distinct stakeholders in these discussions. The Town, the
Town citizens and the people who live in the boundary adjustment areas in the
County are stakeholders. He said before the Town takes a position on how it is
going to impact those stakeholders, the Town Council should have an
opportunity to ask questions of staff and to challenge staff, to suggest ways to
proceed to debate among themselves and to decide what the right answer is. He
said in terms of collecting information and being able to ask questions and give
input and to decide policy and to give direction, that Executive Session allows
Council a valuable opportunity to talk about those issues without having to worry
about public perception. Mr. Dunn said there can be discussions that are open
and discussions that are closed. Mr. Haley said that was correct. Mr. Dunn said
he would suggest leaning towards that.
Council Member Steinberg asked if the County's terms require that the
Town needs 100% agreement within this area for the Boundary Line Adjustment
or could the Town conceivably Boundary Line Adjust right around Walmart and
take whoever is willing to come in. Mr. Haley said if everyone else comes in, the
Town will have an opportunity six months from now or a year from now to say
hey Walmart when you had that shoplifter and got in a fight and it took 20
minutes for a response. Mr. Steinberg asked if the deal falls apart if Walmart
does not come into the Town. Mr. Haley said no it doesn't, there would just be
an island. He added that with Microsoft with Phase I if they get on Town
utilities, and they like the service, they may say we will come into the Town. Mr.
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Steinberg asked about Mr. Haley's earlier comment about Peterson's
sophistication and noted that Walmart and Microsoft have more money than the
Town and more staff and certainly more attorneys. He said his question hinges
around the entire negotiation process and why all three entities are dragging the
Town through it when he has to assume that they must know what their answers
are. He asked what is it that they don't already know that they are still digging
for in these negotiations. Mr. Haley said that Peterson is different because they
are a regional company. He said they have done the math and they have done
the marketing analysis and they have concluded that they are better off in the
Town. He said it is in their interest because they are going to save money. He
said they can make a better pitch to people to buy their properties for
development. He said Microsoft is just a huge company. He said they are trying
to build fast. He said they are on the fast track development process. Mr. Haley
said that his expectation is that they are in triage with decisions. He said they are
making decisions that they have to make and if they don't have to make one they
are not going to make one. He said Walmart is a big company. Mr. Steinberg
said they have been in Leesburg for a long time. Mr. Haley said that they haven't
been in Compass Creek for a long time. He said he didn't know what Walmart
was going to say but the Town has a really good sales pitch to get them to come
into the Town. Mr. Haley said once the Peterson precedent is set, that pitch can
be restated and renewed.
18. COUNCIL DISCLOSURES AND COMMENTS / ADDITIONS TO
FUTURE MEETINGS
Vice Mayor Martinez disclosed he met with Mr. John Foote, representing
Lennar, to talk about the Westpark property.
Council Member Fox disclosed she had an email exchange with Mr. Cody
Francis regarding Graydon Manor.
Council Member Campbell disclosed he met with Lennar and Walsh
Colucci representatives for the Westpark properties.
Council Member Campbell asked for a discussion on the Town's
solicitation policy with consideration for establishing time limits on when the
activity can occur. He said it is in response to a concerned resident that called
him at 8:45 p.m. the previous week with someone knocking on her door in the
dark. He said Council needs to look at the current policy and consider time
limits in the policy. He added that he contacted the Chief of Police to follow-up
on who these solicitors may be.
It was the consensus of Council to add this to a future Work Session discussion.
(Campbell, Dunn, Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk)
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COUNCIL MEETING November 12, 2019
Council Member Dunn requested a Work Session discussion regarding
Annexation as a follow-up to publically determine the next steps and to analyze
the numbers and the probability of annexing other areas.
It was the consensus of Council to add this to a future Work Session discussion.
(Campbell, Dunn, Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk)
Council Member Dunn left the meeting at 11:09 p.m.
Council Member Steinberg disclosed he had an email exchange with the
attorneys representing Westpark. He said he told them he did not want to meet
with them but wanted to disclose the communication regardless.
Council Member Steinberg requested a Work Session discussion on the
Lighting Ordinances.
It was the consensus of Council to add this to a future Work Session for discussion
(Campbell, Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk)
Council Member Thiel disclosed he met with Mr. Larry Beerman about
the Westpark development and met with Dave Gregory about Graydon Manor.
Council Member Thiel said he reviewed the packet from the Graydon
Manor application and it says that they will need Town Council's approval for
them to hook up their sewer. He requested a Work Session discussion with a
briefing from staff on the Graydon Manor property in regard to them hooking up
to the Town's sewer.
It was the consensus of Council to add this to a future Work Session discussion
(Campbell, Fox, Vice Mayor Martinez and Thiel)
19. MAYOR DISCLOSURES AND COMMENTS / ADDITIONS TO FUTURE
MEETINGS
Mayor Burk thanked Dodona Manor and the George Marshall International
Foundation for the wonderful Veterans Day program. She said the following day she
would be ringing the bell for the Salvation Army and encouraged everyone on Council
to consider volunteering their time at one of the bell ringing sessions.
Mayor Burk said she met with Chair Randall and Supervisor Umstattd regarding
the issue of the County taking over so many of the office complexes in Leesburg. She
said in that discussion she let them know that they would like to have a meeting with the
new Board. At the request of both of them, they asked Council to wait until late
January or early February to schedule a meeting with the new Board. Mayor Burk
requested that the Town Manager work with the County to establish a date for when
Council can meet with the new Loudoun County Board of Supervisors and give them
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the Town's legislative agenda. Mayor Burk said it would be a light reception where
they could take some time and talk about items such as water and other issues.
It was the consensus of Council to schedule this joint meeting. (Campbell, Fox, Vice Mayor
Martinez, Steinberg, Thiel and Mayor Burk)
Mayor Burk requested a Work Session discussion on developing a training
overview of Town Boards and Commissions to go over the informal requirements and
review what the different Boards and Commissions do. She believed it would help
develop a bench of interested residents to pick from when vacancies occur. Mayor Burk
said she has discussed this with the Town Manager and he is more than willing to do it.
It was the consensus of Council to add this to a future Work Session for discussion. (Fox,
Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk)
20. TOWN MANAGER COMMENTS
a. None.
21. CLOSED SESSION
a. Pending Litigation/Annexation and/or a Boundary Line Agreement of
the JLMA
MOTION 2019-220
On a motion by Council Member Steinberg, seconded by Council Member Thiel,
the following was proposed:
I move pursuant to §' 15.2-2907(D) and 2.2-3711(A)(7) and 2.2-3711(A)(8) of the
Code of Virginia that the Leesburg Town Council convene in a closed meeting for
the purpose of consultation with legal counsel and briefings by staff members
pertaining to the pending litigation of Town of Leesburg et al v. Loudoun County
et al, Loudoun County Circuit Court No. 19-1768 where such consultation in open
session would adversely affect the negotiating or litigating posture of the Town; and
consultation with legal counsel regarding specific legal matters requiring the
provision of legal advice by such counsel, and pertaining to a potential annexation
and/or boundary line agreement of the JLMA.
The motion was approved by the following vote:
Aye: Fox, Vice Mayor Martinez, Steinberg, Thiel and Mayor Burk
Nay: Campbell
Vote: 5-1-1 (Dunn absent)
Council went into Closed Session at 11:16 p.m.
Council reconvened in an Open Session at 12:01 a.m.
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COUNCIL MEETING November 12, 2019
MOTION2019-221
On a motion by Mayor Burk, the following was proposed:
In accordance with Section §2.2-3712 of the Code of Virginia, I move that Council
certify to the best of each member's knowledge, only public business matters
lawfully exempted from open meeting requirements under Virginia Freedom of
Information Act and such public business matters for the purpose identified in the
motion by which the closed meeting was convened were heard, discussed or
considered in the meeting by Council. (ROLL CALL VOTE)
The motion was approved by the following roll call vote:
Campbell — aye, Fox — aye, Vice Mayor Martinez — aye, Thiel — aye,
Steinberg — aye, Mayor Burk — aye
21. Adjournment
On a motion by Vice Mayor Martinez, seconded by Council Member Steinberg, the
meeting was adjourned at 12:02 a.m.
Kelly Bi lc Mayor
Town of Leesburg
ATTEST:
Clerk of Council
2019 tcmin1112
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