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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). 1 I Page 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. 2 I Page COUNCIL MEETING November 12, 2019 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 3 I Page COUNCIL MEETING November 12, 2019 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. 4 I Page COUNCIL MEETING November 12, 2019 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. 5 I Page COUNCIL MEETING November 12, 2019 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 6 I Page COUNCIL MEETING November 12, 2019 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 7 I Page COUNCIL MEETING November 12, 2019 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 8 I Page COUNCIL MEETING November 12, 2019 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 9 I Page COUNCIL MEETING November 12, 2019 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 10 I Page COUNCIL MEETING November 12, 2019 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 11 I Page COUNCIL MEETING 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 12 I Page 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 13 I Page 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) 14 I Page 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 15 I Page COUNCIL MEETING November 12, 2019 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. 16 1 Page 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 17 I Page 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. 18 I Page 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 19 I Page 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 20 I Page 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 21 I Page 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 22 I Page COUNCIL MEETING November 12, 2019 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 23 I Page COUNCIL MEETING November 12, 2019 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 24 I Page COUNCIL MEETING November 12, 2019 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 25 I Page COUNCIL MEETING November 12, 2019 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 26 I Page COUNCIL MEETING November 12, 2019 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. 27 1 Page 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 28 I Page COUNCIL MEETING November 12, 2019 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. 29 I Page 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 30 Page 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 31 I Page COUNCIL MEETING November 12, 2019 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 32 I Page COUNCIL MEETING November 12, 2019 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 33 I Page COUNCIL MEETING November 12, 2019 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 34 I Page COUNCIL MEETING November 12, 2019 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 35 1 Page COUNCIL MEETING November 12, 2019 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 36 I Page COUNCIL MEETING November 12, 2019 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 37 I Page COUNCIL MEETING November 12, 2019 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 38 I Page COUNCIL MEETING November 12, 2019 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 39 I Page COUNCIL MEETING November 12, 2019 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 40 I Page COUNCIL MEETING November 12, 2019 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 41 I Page COUNCIL MEETING November 12, 2019 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 42 I Page COUNCIL MEETING November 12, 2019 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 43 I Page COUNCIL MEETING November 12, 2019 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 44 1 Page COUNCIL MEETING November 12, 2019 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 45 I Page COUNCIL MEETING November 12, 2019 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 46 I Page COUNCIL MEETING November 12, 2019 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 47 I Page COUNCIL MEETING November 12, 2019 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. 48 1 Page COUNCIL MEETING November 12, 2019 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 49 I Page COUNCIL MEETING November 12, 2019 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 50 I Page COUNCIL MEETING November 12, 2019 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 51 I Page COUNCIL MEETING November 12, 2019 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 52 I Page COUNCIL MEETING November 12, 2019 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 53 I Page COUNCIL MEETING November 12, 2019 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 54 I Page COUNCIL MEETING November 12, 2019 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. 55 I Page COUNCIL MEETING November 12, 2019 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) 56 I Page 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 57 I Page COUNCIL MEETING November 12, 2019 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. 58 I Page 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 59 I Page