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HomeMy Public PortalAbout2019_tcwsmin0923Council Work Session September 23, 2019 Council Chambers, 25 West Market Street, 7:02 p.m. Mayor Kelly Burk presiding. Council Members Present: Ron Campbell, Thomas Dunn, Suzanne Fox, Vice Mayor Martinez, Neil Steinberg, Joshua Thiel, and Mayor Kelly Burk Council Members Absent: None. Staff Present: Town Manager Kaj Dentler, Town Attorney Barbara Notar, Deputy Town Manager Keith Markel, Director of Planning and Zoning Susan Berry Hill, Director of Public Works Renee LaFollette, Director of Utilities Amy Wyks, Director of Plan Review William Ackman, Economic Development Director Russell Seymour, Leesburg Police Lieutenant Bob Thompson, Transportation Engineer Calvin Grow, Officer Gray, and Executive Associate to the Town Manager Tara Belote. Minutes prepared by Executive Associate Corina Alvarez. AGENDA ITEMS 1. Items for Discussion a. Veterans of Foreign Wars Sanitary Sewer Service — Fee Waiver Request Ms. Wyks provided a briefing on the Veterans of Foreign Wars (VFW) sanitary sewer service fee waiver request. Council Member Steinberg asked what is being discussed if there is no action required from Council other than staff providing information. Mayor Burk said that she believes that staff would like some action from Council. Ms. Wyks explained that the VFW has not formally requested the Town for a waiver but that the VFW did ask the Mayor for information regarding what they need to do. Mr. Steinberg said that a couple of years ago the VFW paid to hook up to water so what are they indicating is their need for an exemption for sewer. Ms. Wyks stated that in 2016 they inquired in a meeting about how to request the waiver but they never came forward with a formal request. Council Member Steinberg asked if there are any restrictions on the property at some point in the future, should it be sold. Ms. Wyks asked for clarification. Mr. Steinberg rephrased and asked if the costs for water and sewer can be recovered from a future owner, should the property change hands. Ms. Wyks indicated that availability fees always stay with the parcel so if it was to sell they have paid into the system the equivalent of 350 gallons per day which is what they would be charged. Council Member Steinberg asked if the fee would be gifted to the VFW or to the property. Ms. Wyks said it would be gifted to the parcel. Ms. Notar clarified that the gift would have to go to the VFW. Mr. Steinberg asked if the property should change hands in the future then does the gift remain with the VFW and will the Town be able to recover the cost from a new property owner or would it be done at that point. Ms. Notar responded that it would be done. Council Member Dunn said he is not opposed to doing this but when the Town starts gifting, Council needs to be prepared for other businesses or 1 jPage Council Work Session September 23, 2019 other non -profits to make similar requests. He said he is concerned with using General Fund unassigned balance money and instead asked that the Utilities fund be used. He added that the Utilities Department would have the ability to fund this unless staff indicates otherwise. Council Member Dunn stated that based on last year's numbers, and going forward, he believes there is enough surplus to be able to cover $7.5K out of the Utility Fund; he would prefer to keep the funds in the same pockets rather than dipping over from the General Fund. Mr. Dunn asked if Utilities would be able to sustain this donation. Ms. Wyks said that she would have to defer to Finance to evaluate and make certain that it is allowed under the bond covenants that the Utilities Fund has as an enterprise. Council Member Thiel asked if the surrounding parcels are hooked up to the sewer system. Ms. Wyks stated that 403 and 405 are currently not on water and sanitary sewer. Mr. Thiel asked if there has been any expressed interest from 403 and 405 to connect. Ms. Wyks mentioned that when meetings were held with the VWF that is one of the questions that staff has asked and encouraged them to work together for them to understand what their needs would be. Mr. Adman added that there are some developers looking into consolidating those two lots and to try to put some duplexes, but it has just been exploratory at this point. Council Member Thiel asked if there needs to be a code change in order to gift or waive the $7.5K. Ms. Notar mentioned that the Town Code does not allow waivers and does not believe the Council has ever waived a water and sewer availability fee. She added that the State Code allows for Council to give gifts whenever it wants, it would just need a resolution. Council Member Campbell said that because the Town Code does not currently allow it does not mean that Council cannot change the code. He added that what concerns him is not the nature of the organization but the precedent of using public funds to give gifts and then just simply doing these transfers and calling it a gift rather than it being allowable. Mr. Campbell indicated that it should be allowable for any organization that comes before Council. He said he wants Council to be careful about what it does and not necessarily who Council does it for and if it is just simply to change the code that allows Council to do it on a situational case -by -case basis then that is probably the more appropriate way to go. Council Member Campbell asked if there are real connection expenses or if it is just the fee. Ms. Wyks said that the $7.5K fee is part of the public facilities permit and there is nothing related to construction. Mr. Campbell indicated that this would mean no real expense for the Town, it is just a fee that is charged for connection. Ms. Wyks confirmed affirmatively. Council Member Fox asked if there is a precedent for gifting, as far as utilities is concerned, and if there has been anybody else that has asked. Ms. Wyks said she is unaware of any gifting. Ms. Fox asked if there is a precedent for any other gifting from Council for anything. Mr. Dentler indicated that Council has waived fees for certain events, but not for utility fees and therefore staff recommends using the Unassigned Fund Balance to offset the fee. 21Page Council Work Session September 23, 2019 Council Member Fox asked if she was correct that Council recently voted to gift the cemetery and had to look at expenses for this action. Ms. Notar mentioned that this falls under the same code section that allows Council to gift land, cash, and personal property. She added that Council has not done it yet, but Council has requested to convey by gift land to the Loudoun Freedom Center. Council Member Fox asked if the action needed from Council in order to gift from the Utility Fund is a simple resolution and if Council is prepared to make this gift from the Unassigned Fund Balance. Mr. Dentler said that if Council wishes to do this, staff recommends that this is the best place to bring the funds from and Council will then not set a precedent in the Utilities system that Council is waiving fees, which is a concern that staff has. Vice Mayor Martinez said that since he has been on Council it has gifted land and waived fees for Ida Lee, among other things. He said that gifting availability fees might be a new thing and does not see any problem with this. He added that the VFW people deserve some relief and he is willing to support their request. Mayor Burk said that she is willing to support the VFW and mentioned that they have done a lot of work towards upgrading their building. Vice Mayor Martinez indicated he would like Council to pass a resolution as soon as possible. Mr. Dentler stated that if Council wishes to take action it can add it to the September 24 agenda or add it in two weeks. Ms. Wyks requested confirmation on what fund will be used for the gift. Mr. Dentler indicated that the Utility fund can afford it but, because it is an enterprise operation, it is not the best financial decision. He added that if Council waives it once from the Utility fund then Council will create a precedent and other non -profits could come to Council requesting waivers for even larger amount and put Council in a difficult position. Mr. Dentler said that staff cautions Council not to go this path and suggested that it use the Unassigned Fund Balance for this purpose and make a transfer. Council Member Campbell asked if Enterprise funds and Unassigned funds are considered public funds. Mr. Dentler responded that they are both public funds but they have different restrictions. Mr. Dentler added that the Utility fund has to pay for itself and cannot be in a deficit situation and therefore staff believes that, short-term and long-term, it is best to draw the funds from the Unassigned Fund Balance. Mr. Campbell indicated that he wanted to highlight this because if this argument comes backs to Council it is not about switching for the best way to pay for it, but is Council really saying this is the best group to do this for, and maybe no other group. He mentioned that Council has not set any conditions and therefore he is just trying to tread carefully and not judging the worthiness of the organization, but the process that Council goes by to judge any request. Council Member Campbell indicated that if staff is saying that for any request this is the best financial route, and leave the Enterprise funds alone, then at least Council knows that in the future that is the right direction, to get the funds from the Unassigned Fund Balance. Mr. Dentler stated that it would be consistent with things done in the past, not necessarily Utility fund waivers but other General Fund items, where 31Page Council Work Session September 23, 2019 the Town might have funded, for example, a public improvement by a non- profit which would draw funds from the Unassigned Fund Balance. He added that in staffs opinion, this is always the better way to go. Mr. Dentler asked if the item should be placed on the Consent Agenda or on Resolutions. Mayor Burk responded that first Council Member Dunn's questions must be answered. Mr. Dentler said he would circle back to get the specific question. It was the consensus of the Council to allow staff to prepare a resolution for Council's review on September 24, 2019 and add it to the Agenda under Resolutions. b. Architectural Design Standards (Eastern Gateway) Ms. Berry Hill stated that a request was made of staff to address design standards for the Eastern Gateway Area Plan and to expedite those standards and present them during the first work session of December for Council to discuss. She added that the Area Plan is scheduled for discussion by the Planning Commission (PC) on Thursday, October 3 and staff is expecting the plan to be ready for the October 22 meeting for a public hearing. Council Member Dunn asked if the design standards are going to come forward separate from the rest of the Eastern Gateway district. Ms. Berry Hill asked if he was talking about regulatory changes to implement that plan. Mr. Dunn mentioned that he was talking about the design standards. He said staff was asked to come forward with some design standards so that those design standards could actually be used in other parts of the Town and to expedite some design standards before the end of the year. Council Member Dunn asked if staff is now saying that it wants to combine those design standards with the rest of the Eastern Gateway review process that is going to be taking place. Ms. Berry Hill indicated she was unclear about the request and asked what exactly Mr. Dunn means by design standards. She added that the Area Plan has guidelines and it does include architectural and site design guidance. Ms. Berry Hill stated that Council reviewed these when they were looking at the Area Plan, made changes to it, and staff proceeded to incorporate pictures and explanations of things that were expected during development. Ms. Berry Hill said that those guidelines were incorporated in the Area Plan but that these are not being considered by the Planning Commission at this moment, they are only to look at the phasing plans and then the document is coming back to Council for final action. Ms. Berry Hill said that if Mr. Dunn is referring to what would be the implementation steps of the document, those could be changes to the zoning ordinance if the Council so wished. Ms. Berry Hill mentioned that Section F of the Area Plan has implementation steps that can be taken after the plan is adopted and those can include specific recommendations for changes to the zoning ordinance or changes to the Design Construction Standards Manual (DCSM) or any other type of direction that the Council wishes to provide. Ms. Berry Hill reiterated that she is unsure of what exactly Mr. Dunn is asking for. She requested more clarity. Council Member Dunn said that there is obviously some major malfunction here or tremendous miscommunication because the Executive Summary during the 4 IPage Council Work Session September 23, 2019 Council Comments section in August reads that Council requested staff to expedite design standards and return to Council by the first meeting in December. Mr. Dunn asked if staff is saying that it does not understand what this means. Ms. Berry Hill confirmed affirmatively and added that there was no discussion about this on August 12, so staff has no idea on what the direction is on architectural design standards. Council Member Dunn asked if what staff is asking for is for specific direction. Ms. Berry Hill responded that staff is looking for direction. Mr. Dunn said that there has been a lot of discussion over the years about Form -Based Code because that is really where one can get a lot of design standards from and that there has also been discussion about what the design standards are going to be in the Crescent District master plan and in the H2 and that there are architectural standards in place for the H1. Council Member Dunn said that his understanding was that Council was looking for detailed architectural designs that developers can use when they come in with their plans and they can look at the design standards and choose from them. Mr. Dunn said that the designs might be early industrial, Greco-Roman, Neo-Gothic, or whatever architectural design standard is defined, but that they have a flow in that district so that there is no Post -Modern in one area and then Georgian or Federalist design standards across the street. He mentioned that developers should know what the design is that the Town wants and what it should look like. Mr. Dunn stated that in the East Market Street plan the area has been left up to the developer. He said he would rather have more control and asks staff to come forward with what is that palette going to look like. Council Member Dunn suggested that if it is already known that the use is going to be a business use, then why not have the developer choose from whether it be a modern building or a mill -looking building or sandstone townhouses. He emphasized that the Town should be telling the developer what it is that the Town wants to see and it can choose from different design standards. He indicated that he did not know why this has been so hard for staff to understand. Ms. Berry Hill responded that it is not hard to understand, but that he is mixing guidelines and standards together. She clarified that standards are regulations, therefore required. Mr. Dunn indicated that what he wants are stricter guidelines. Ms. Berry Hill explained that guidelines are discretionary; they are policy guidance and that is what is currently in place in the draft area plan as guidance and which contemplate the general parameters of architectural and site design. Ms. Berry Hill asked if what Mr. Dunn is saying is that he is not satisfied with what is in the draft area plan or that he would like to have the area plan implemented through stricter regulation, perhaps through a Form -Based Code or other changes to the zoning ordinance. Mr. Dunn responded that he wanted both and that he believes that when it was brought up it was because there is a lack of strict guidelines or regulations that are going to ensure that locations look a certain way and that is in the Crescent District, in the H2, and in the East Market Street. He said that the evidence is there and one can tell that there is no standard or the standard is very liberal. Council Member Dunn reiterated 5IPage Council Work Session September 23, 2019 that a set of guidelines or regulations of what the Town should look like can be used in various districts if they existed, but that they do not. Council Member Fox said that the draft reads, under Design, "... recognize the role of Route 7 as a gateway into Downtown Leesburg and assure appropriate high -quality architecture throughout the development along Route 7" but that there is no definition of what appropriate high -quality architecture is. Ms. Fox mentioned that she thinks that is what Council Member Dunn is saying and that she agrees with him and asks staff if there is a way to define that and put it in a final report. Ms. Berry Hill responded that to define it would be very prescriptive about what high -quality means. Ms. Berry Hill asked if Council wanted to specify exactly what kinds of materials or combination of materials should be used and if they should be included in the guidelines. Council Member Fox said that this seems to be what architectural guidelines are, at least as far as the BAR is concerned. Ms. Berry Hill said that the BAR has a listing of acceptable materials in the 111 guidelines and applicants may choose how they incorporate any number of those architectural materials in their project. She added that staff could put in the draft document of the area plan that the developer must use brick or whatever materials Council feels are appropriate and then when applications come in through rezoning staff would look to see if the developer has incorporated those materials. Ms. Fox said that she did not see this language anywhere and that is why she is asking; to her it is very vague. Council Member Fox indicated understanding high -quality but asked what it means, what is the definition of high -quality architecture. Ms. Berry Hill said that when staff is drafting guidelines or policy direction it wants to provide at least a good vision of what the Town wants developers or property owners to do, but one must stop short of prescribing what developers should do. Ms. Berry Hill added that one needs to allow applicants enough flexibility to be creative and then the judgement is for staff, Planning Commission, and Council to look at the plans and decide if the developer met that intent in the policy guidance that is in the area plan. Ms. Fox said that she did not disagree with that and would rather give the developer/builder more leeway on what things will look like but that the Town has had some issues with that in the past. Ms. Fox explained that in her opinion this was going to make things easier for the developer, with less guessing. Ms. Fox added that she thought that was the intent of this whole thing and making sure that the Eastern Gateway was something pleasant coming in to Town. She added that there is a dual purpose, to make it easier and have less guessing, and also developers will not have to come with requests for special exceptions or the need to change this or that which cost money and time; we are trying to make this more streamlined. Ms. Berry Hill said that when Council was working on the area plan there were a number of work sessions regarding architectural guidance. Ms. Berry Hill added that as a result of those work sessions, pictures and descriptions about what is in those pictures where included to explain what the higher degree of architectural guidance should be. Ms. Berry Hill mentioned that if Council does not feel that it is sufficient, then staff can go back and see if more specificity can be 61Page Council Work Session September 23, 2019 added to this policy document or staff can look at the zoning ordinance as the implementation tool and make changes to the ordinance and try to add specificity to the regulation. Mayor Burk said that she is getting the impression from some of the questions that have come forward that Council is confusing guidelines with regulations. Ms. Burk said that guidelines are not regulations. They are suggestions with a vision of what Council wants and so Council members brought pictures that they wanted included in the plan of what it was going to look like and changes were made to some of the guidelines while going through the process. Ms. Burk said that she is afraid that by getting too specific, then they become more like standards, close to regulations. Mayor Burk said she believes it is easier to provide the developers with the realm of what they can do and then have them bring it back for Council to look at. She is in favor of guidelines but not regulations and therefore she agrees with the way it is set up right now. Council Member Dunn stated that he recalls that what was requested was that the Eastern Gateway Area Plan be removed and that regulatory design standards are needed that can be used at various parts of the Town because there are none or if there are any, they are very liberal. Mr. Dunn indicated that developers will not make improvements if the Town is not providing the regulations. He added that the only place where this is being done is in the downtown. Council Member Dunn indicated that rather than dragging this regulatory process until the Eastern Gateway Area Plan gets done the Town should provide design standards as quickly as possible so that they can be used not just at the Eastern Gateway or the H2, but also at Crescent Street. Mr. Dunn said that the developers should be given flexibility in regards to the type of period of architecture but the Town should be provide real architectural standards and he therefore requested expediting regulatory design standards and a palette from which builders can choose from. Council Member Campbell indicated that he wanted clarification because what he had heard was something different. Mr. Campbell indicated that he thought Council was talking about standards, guidelines specific to the Eastern Gateway district, since his understanding is that the majority of the work that has to be done there might be renovations because three quarters of the area is already built. Council Member Campbell said that he did not think that Town -wide standards were being created. Council Member Dunn said that Council had discussed that since these standards were to be created, then they could be used in other areas, since none are currently in place. Mayor Burk said that the first question came from Ms. Berry Hill and that this is going back to the Planning Commission regarding phasing and then staff will bring it back to Council once more. Ms. Burk asked if there are four votes that want to have specific regulatory design standards included in this and the following raised their hands in favor: Council Member Dunn, Council Member Fox, Vice Mayor Martinez, Council Member Steinberg, and Council 7!Page Council Work Session September 23, 2019 Member Thiel. Mayor Burk said that this means that this goes all the way back again. Ms. Berry Hill asked for confirmation that Council Member Dunn is not just talking about the Eastern Gateway but that the entire Town needs specific regulations for certain types of architectural standards deemed appropriate by Council. Ms. Berry Hill said that if this is so, then this is asking staff to change the zoning ordinance to incorporate that regulation. Council Member Dunn suggested that since staff is working on the Eastern Gateway plan and that there are certain regulations and standards that have been put in place then use this as a springboard, get the regulatory standards set for that area and use them in other areas. Ms. Berry Hill asked if what Mr. Dunn is talking about is regulation and not the Small Area Plan but regulation to implement the Small Area Plan. Mr. Dunn responded affirmatively. Ms. Berry Hill indicated that this is then a follow-up action to the adoption of the Area Plan. Ms. Berry Hill said that she heard some Council Members say that maybe the guidelines in the Area Plan can be strengthened but what she hears from Mr. Dunn is that he would like to see follow-up action to the Area Plan to change the zoning ordinance to put in place regulations that implement that. Council Member Dunn said he is hung up on the word "follow-up" because if it is actually done by December he would use the word "parallel" and not "follow-up". Ms. Berry indicated that to start, staff would need to come to Council to initiate zoning ordinance changes to expedite that and indicated that she is unsure that December is a reasonable timeframe to do that given the things that are on staffs plate right now, so staff would need Council to make an active decision to put the other items aside so that staff can work on this and meet the timeframe. Vice Mayor Martinez asked if making these changes will impact any development and if there is anything that is time -critical that it needs to be done by December. Ms. Berry Hill said that there is nothing time -critical that she is aware of. Vice Mayor Martinez indicated that he does not have a problem moving this past December if staff can give Council an approximate of how much more time would be needed. He added that he is very supportive of Form -Based Code and what he is looking for is strengthening the zoning ordinance and the guidelines and not give as many options as possible that can be negotiated or not, and just say that this is the design standard which the developer needs to go by and move forward. Vice Mayor Martinez said he is willing to wait until staff can get this done and that he does not want to see any other projects slip. Ms. Berry Hill said there are a lot of things going on right now and is really concerned about this request. Mayor Burk stated that she did not think that this is something that staff will be able to do in 6 months. Ms. Berry Hill said that staff is currently working very diligently on the Boundary Line Adjustment Compass Creek Project, and the zoning division has work on the Battlefield interchange right now, as well as other Council priorities. Mayor Burk said she understands that there are a lot of big projects and that 6 months is unreasonable, so she asked Council to take this into consideration. Ms. Berry Hill suggested that if 8IPage Council Work Session September 23, 2019 Council wishes to initiate a zoning ordinance amendment to consider either a Form -Based Code or another type of overlay district for the Eastern Market area, that the first step to moving in this direction is initiating that work and getting some direction from Council on what shape or form it would like that to happen. She added that once staff knows what kind of direction Council wants, staff will know how long it might take staff to accomplish this in-house or if a consultant will be needed. Council Member Steinberg stated that there seems to be a slight confusion in terms and asked for the difference between guidelines versus standards. Ms. Berry Hill explained that guidelines are policy guidelines, which are in the area plan that is a part of the comprehensive plan. She added that it is the guidance that is provided to the development community and residents as to what the area should look like. Ms. Berry Hill explained that regulations or standards can be used interchangeably and they are included in the zoning ordinance. Mr. Steinberg said that the only reason why he asks is because on the agenda it does say that Council is going to be discussing design standards not guidelines, so that is a much more specific topic. Council Member Steinberg said he believes that it was the intent of Council to strengthen the architectural standards, especially for the Eastern Gateway Small Area Management Plan because Council recognizes that as a major entrance to the Town and Council is aware that there is applicant waiting in the wings for this specific area which is not primarily developed as of yet and so it has everything to do with what that development is going to look like. Mr. Steinberg stated that the stronger the standards the better and if that is going take more time, with perhaps guidance from the Planning Commission again, then he believes that is probably advisable for this area. Council Member Steinberg said that if it then filters to other areas of the Town, it is probably not a bad idea, but the concern now is for the Eastern Gateway. Council Member Fox indicated that she understands the universal will to look at everything and that she sees that it is overwhelming for staff because of Ms. Berry Hill's response to Council. Ms. Fox said she would probably prefer to just make the Eastern Gateway design more specific and spell out what is wanted in this document and then, sometime down the road, use it as a springboard. Mayor Burk asked if Ms. Berry Hill if she understood the direction of Council because Ms. Fox wants more specific guidelines and Mr. Steinberg, Mr. Martinez, and Mr. Dunn want standards, actual zoning standards. Ms. Burk said she is assuming that all Council members voted for standards. Ms. Berry Hill said that staff will bring an initiation to Council, perhaps at the next meeting to change the zoning ordinance to develop zoning ordinance standards/regulations for the Eastern Gateway area. Ms. Berry Hill indicated that typically the order of things is that a plan is adopted that will set the vision and then the implementation tool is adopted, which is the zoning ordinance. Ms. Berry Hill said that staff can try to incorporate some more changes into the design section of the area plan as it comes back to Council and if Council 9IPage Council Work Session September 23, 2019 would like the Planning Commission to look at that, then staff can keep the document in the Planning Commission for a while to continue to do that. Mayor Burk said that Ms. Berry Hill's suggestion might alleviate some of the Council members' concerns if it works out the way they anticipate. It was the consensus of the Council to allow staff to initiate amendments to the zoning ordinance to develop zoning ordinance standards/regulations for the Eastern Gateway Area Plan for Council's review at a future work session. c. Re-routing of Truck Traffic in Downtown Mr. Grow gave a presentation in regards to Council's request for information on re-routing truck traffic in the downtown and the restriction of right turns. Council Member Fox asked about the restrictions currently in place for trucks. Mr. Grow indicated that currently there are truck restrictions in the downtown area from the Bypass north to Catoctin Circle on King Street and also on Market Street and Loudoun Street, which establish that unless the trucks have an origin or a destination within the downtown area they are not supposed to be cutting through. Ms. Fox asked how these restrictions are enforced. Lt. Thompson indicated that enforcement is difficult because the police has to monitor the traffic, follow it through to its destination and if it passes through the downtown area it could potentially be a violation and then the vehicle can be stopped and the officer can question the driver about the route that he/she took. Lt. Thompson added that enforcing is also difficult because officers would have to be continuously following vehicles just to find out if they have a destination within the downtown area. He added that there are also occasions in which a vehicle could be involved in a crash or some other sort of traffic violation that it is stopped for and then the police can question him/her during that investigation as to what his/her destination is and take enforcement that way. Lt. Thompson indicated that the police has no record of taking enforcement action for the violation of this ordinance. Council Member Fox asked if there are size restrictions. Mr. Grow said that the current restriction is that trucks 7,500 lbs. or more are prohibited from coming to the downtown. Ms. Fox said that she has seen many trucks trying to make turns in the middle of town, running over curbs and damaging the brick or stopping traffic for over 10 minutes to try and make a turn. She asked if making Market and Loudoun one-way streets would help alleviate this problem. Mr. Grow said that this is something that Council has talked about over the years and indicated that staff suggests a study to see if this would be something that would help. Ms. Fox asked if there is a way that this could be studied. Mr. Grow said that as part of this year's budget, staff will be making a presentation to Council regarding a study for the one-way streets in the downtown for north -south traffic. Mayor Burk asked if this study was included in the request for funding with the County. Mr. Grow responded that he believes it was included in the requests to the County. 10jPage Council Work Session September 23, 2019 Vice Mayor Martinez said that Council has talked a lot on these issues and the big issues are that corner curbs are constantly damaged by turning trucks and that one of the solutions that Council was considering was making Loudoun and Market into one-way streets. Mr. Martinez indicated that there were supposed to be some studies done on this and that he would like to see the results. Council Member Thiel indicated that he is also interested in the results of the study and asked about the specifics of staffs conversations with TomTom. Mr. Grow explained that TomTom uses a (Virginia Department of Transportation) VDOT list to update its Global Positioning System (GPS) and that staff was surprised to learn that Leesburg was not included in this list of towns in Virginia, but that there have not been any discussions with TomTom. Council Member Thiel asked if the red sections delineated on the map presented were determined with the VDOT information or was this based on input from previous Council's. Mr. Grow said that most of the streets that do not allow trucks are because Council requested these restrictions and staff would hold a public hearing and then implement the regulations based on the public hearing input. Mr. Thiel asked if staff is going to leverage on the technology and software currently at hand to determine which other roads should be restricted to turns by trucks or will it be information provided by the feedback from Public Works and the repair of sidewalks. Mr. Grow said that staffs recommendation is to first get on VDOT's list and get the GPS to update, but staff is certainly open to look at other types of input. Council Member Campbell said that only one truck was found making a turn during the short traffic monitoring study done by staff on six or more dates but that this does not mean that there were no other trucks in these areas. Mr. Grow clarified that staff looked at tractor -trailers, but that there were numerous other types of trucks making numerous turns. Mr. Campbell asked what is step two after making sure that Leesburg is in the GPS mapping systems of VDOT, truck companies, and map companies. Mr. Grow said that he thinks that staff needs to take another look at the current through truck restrictions. Council Member Dunn said that it is important that the discussion is about through truck restriction and that trucks are allowed if they have business in town. Mr. Dunn suggested considering the western "Y" because there is no need for through trucks to be on the western side of Market Street where Loudoun Street splits off. He also suggested that Council consider no through trucks at: • the other side of Battlefield from where it currently is to all the way around Route 15, and • Fort Evans Road at the corner by the Bank of America • the Bypass going up King Street, on the south side Council Member Steinberg said that this is not what he originally had in mind when he brought this item forward. Mr. Steinberg referred to the report under the background section where it reads "None of these organizations have issues with restricting right turns at downtown 11 IPage Council Work Session September 23, 2019 intersections" and indicated that in the immediate downtown area, which was his intention all along for this particular topic, larger trucks have just as much trouble making right or left turns and he would not be satisfied with restricting only right turns. Council Member Steinberg asked if the Town has the power to limit the size of trucks in the downtown area, or to say that tractor -trailers are not permitted. Mr. Grow said he cannot answer this question but maybe the Town Attorney can. Mr. Steinberg said that before staff answers he said that the trucks that are servicing the businesses in the downtown area do so to the same businesses and the same locations on a regular basis and these businesses know what the issues are in the downtown, so regardless of the software that guides some of these trucks, in the end there are very specific companies that are involved in this process and so he asks if the Town can instruct these companies that only 20' box trucks are allowed in the historic downtown district. Council Member Steinberg said that Loudoun Street, with the downtown improvement, has become a very narrow street so what can be done in terms of restricting the size of the trucks in town. Ms. Notar said she did not know the answer and offered to do some research and see what other jurisdictions are doing. Mr. Steinberg indicated that for him this has to be a more far reaching proposition than simply prohibiting through traffic; it is just not just through traffic that the Town should prohibit but also the size of the trucks so that the turns become less of an issue because obviously the tractor - trailers are the most egregious. Council Member Steinberg reiterated that he would like to know to what extent can the town limit the size of trucks in the downtown area and then through traffic and then the turns that are allowed at the various intersections. Mayor Burk said that it is very important that Council receive input from the businesses and how they will be impacted before making any of these changes. Ms. Burk indicated that she believes that the Town has not heard if truck traffic is an issue for the businesses and therefore believes that if the size of trucks will be limited there needs to be some input. Council Member Thiel said that he agrees with the Mayor and suggested not just talking to the businesses but also talking to the delivery drivers to see what the local problems are and make sure the businesses are not affected, while at the same time making it a better environment for all. Mr. Thiel also suggested looking at traffic cameras and asked if the Town does ticketing from cameras at lights. Lt. Thompson said he believes it is not permitted in the Virginia Code. Mayor Burk said that ticketing by camera is not permitted yet. Mr. Grow explained that the cameras will only show what is happening in the downtown, so staff is unable to see if they are making deliveries or not. Lt. Thompson mentioned that the cameras would need to be upgraded because they are not of sufficient quality to read vehicle tags. Council Member Dunn said that in the past there were discussions of having more police coverage in the downtown but one of the problems is that cruisers have a hard time turning around. Mr. Dunn also recalled that when Council discussed setting up the no through truck signs in the past that truck size cannot be restricted because the streets belong to the state. He added that 12IPage Council Work Session September 23, 2019 businesses have to get their deliveries and he does not believe that Council can dictate the size of truck in which the deliveries can be made. Council Member Dunn said that he often sees commercial trucks going through Battlefield, which is a restricted area, that are obviously not going to make deliveries to the residential neighborhoods. Mr. Dunn asked the Town Attorney when the information on the truck size could be made available. Ms. Notar indicated she would look up the information that evening and added that red light cameras are allowed, but Virginia does not allow speed cameras. Vice Mayor Martinez mentioned that some of the problems could be solved by letting VDOT know that Leesburg does not allow through truck traffic. Mr. Martinez said that the problems that cannot be resolved are related to offloading goods for the local businesses and asked staff if there could be restrictions placed on the size of delivery trucks. Ms. Notar indicated she would look into this and added that the bottom limit is 7500 lbs. d. Letter to Loudoun County Public School Board — Equity and Diversity Mr. Dentler stated that staff has provided a memo and a resolution to authorize the Mayor to write a letter that hits the key points, instead of Council members editing the letter from the dais. Council Member Steinberg indicated that writing an appropriate letter to this issue is a good idea but that he is unsure that sitting here with seven people would get Council what it wants except for coming up with a few salient points, but having one person write the article and having Council approve the wording would work well. Mayor Burk explained that this letter was requested by Mr. Thompson, former chair of the National Association for the Advancement of Colored People (NAACP). Ms. Burk said that Mr. Thompson asked that Council write a letter that recognizes that the study came forward and has made recommendations and that Council should encourage the Superintendent to take the recommendations immediately and begin working on making improvements within the school system on diversity. Council Member Thiel said he would support a draft letter and then have Council members review and vote and maybe take names off if they are not in support. Mayor Burk stated that the letter would be signed by her, but if others want to sign it this can be added to the resolution. Vice Mayor Martinez said that he found the report very disturbing and if Council is going to write a letter that it at least reference the fact that there needs to be support for minorities with ethnic backgrounds and economically deprived citizens. Mr. Martinez added that the Town approximately has 55K residents and about 16K homes with a lot of them having children going to schools and even though it is a Loudoun County Public School system that does not mean that the Town cannot be an advocate for its citizens and everybody else. He indicated that whomever writes the letter should highlight a few of the bullet items in the Minority Student Achievement Advisory Committee (MSAAC) report that talks about some of the solutions and that there are some great recommendations. Vice Mayor Martinez thanked Mr. 13 IPage Council Work Session September 23, 2019 Phillip Thompson for his involvement and bringing this forward so that these reports are not ignored and people are made aware of what is happening in the community. Council Member Campbell said he finds it political when it is convenient sometimes to talk about what the Town advocates for. He said that a couple of years ago he could not get support, before he was on Council, to look at attendance and boundary rezonings and Council took a position that it was not its business. Mr. Campbell indicated that he thinks it is a little bit premature. He added that even in the staff report the name of the ad hoc committee is not right. Council Member Campbell mentioned that when he went to the report meeting there was an internal consultant report that is in the Washington Post which stated that they had hired an outside consultant to look at the conditions. Mr. Campbell said that the report was given to MSAAC and also to the Washington Post. He remarked that the report talked about conditions for the students. Council Member Campbell indicated that there are no final recommendations made yet from the ad hoc committee on equity, there are no final determinations made yet on process and progress of what the true findings are about or what should be done. Mr. Campbell believes that if a meaningful letter is to be written then Council needs to be sure that the tone is appropriate and direction is appropriate and only in relation to Leesburg students. He believes that Council needs to specifically identify which findings Council finds troublesome, how Council will be supportive as an advocate and how they can rely upon the Town and Council to be helpful and engaging. Mr. Campbell considers this to be a community issue and all aspects of the community are involved and a simple letter just saying that Council agrees with the report, without knowing which issues Council considers the most important, is premature since the report is not final. Council Member Campbell says he really does think that if this is the direction of Council, and he voted against moving, because he thought it was premature, and he does not support it now unless Council is really sure since Council cannot give back information that says this is what we got from the website. Mr. Campbell mentioned that this is serious business as it relates to the community and expectations and Council does not put out false signals or false hope about the Town's ability to be involved and it certainly should not be used as politics when kids' lives are at stake. Council Member Campbell said that if Council is going to send out a message it needs to be prepared to say what Council is prepared to do other than make a paper statement. Council Member Dunn said he appreciated Council Member Campbell's comments because if he would have made them he would be called a racist because he feels the same way because Council is responding to a news article and he believes that it is inappropriate. Council Member Dunn enumerated several news articles that Council did not respond to in regards to the school district and that he believes this seems more political than it justifies because Council does not know the facts, has not seen the report, and does not know where the School Board is going with the report. Mr. Dunn added that generally Council's position is to stay out of school business and that even the 14IPage Council Work Session September 23, 2019 Board of Supervisors cannot get involved with school business, except for providing funding. Council Member Dunn said that if Council wants to go ahead and pass this he will vote for it but he thinks it is premature. He added if Council thinks that opining on this issue is going to make a dramatic change in the situation then he is for it but he does not necessarily see it but that he is probably more humble thinking that his opinion does not mean a whole lot but if Council thinks that their collective voice does, then he is willing to sign off on it. There was no consensus to add this item (Campbell, Dunn, Fox, and Thiel). 2. Additions to Future Council Meetings Council Member Fox indicated that there should be a discussion on Graydon Manor sewer service and that she does not see it on the agenda. Mayor Burk said that Council will be discussing whether this item will be discussed in a closed session or not. Ms. Fox said she would like to advocate for it to stay in an open session. Mayor Burk clarified that Council is currently at the Additions to Future Council Meetings section. Council Member Dunn said he would like to have staff move immediately to repeal the proffer regulations that Council requested back in April. Mayor Burk explained that this is in the process and that there will be a public hearing on this item in November. Council Member Fox asked if it can be moved up. Ms. Notar explained that staff feels it would be better to amend the zoning ordinance to permit proffers once the Eastern Gateway District Small Area Plan is enacted. Council Member Dunn said that was not Council's request and staff was given specific instructions and reminded Ms. Notar that staff indicated that it could be done by July and now staff has decided to put it off until November. Mr. Dunn asked Council to direct staff to move on this item immediately. It was the consensus of the Council to direct staff to work immediately on the proffer regulations (Fox, Campbell, Dunn, and Thiel). 3. Closed Sessions a. Probable Litigation MOTION On a motion by Mayor Burk, seconded by Council Member Steinberg, the following was proposed: I move pursuant to §s5 2.2-3711(A)(7) 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 a matter where litigation has been specifically threatened by a property owner regarding their land rights against the Town and where the Town Attorney has a reasonable belief that litigation will be filed against 151Page Council Work Session September 23, 2019 the Town and where such consultation in open session would adversely affect the potential negotiating or litigating posture of the Town. Council Comments: Council Member Fox said she had no comment on the closed session and indicated that she would like to make an alternate motion. Ms. Fox added that she did not see the Graydon sewer service item on the agenda and that she does not see any issue about sewer service for an existing customer that should be discussed in a closed session. MOTION On a motion by Council Member Fox, seconded by Council Member Campbell, the following was proposed: Graydon Manor sewer service be discussed during the current work session. Council Comments: Council Member Dunn said that the motion is out of order because there is no mention of Graydon Manor to be discussed. Council Member Fox indicated that that is the point she is trying to make, since it was on Tab A it should be on the agenda. Mr. Dunn said that his point of order is that there is nothing on the agenda saying what this item is. Council Member Dunn said that it is his understanding that when Council is going to have a closed session it is supposed to know what the issue is. He said that right now he has no idea what the item is about and Council members are being requested to vote on an issue that all that is known is that it is a potential lawsuit with the Town and it does not tell him who it is with, what the issue is, and he thinks he should be aware of this if he is to vote on it to go into a closed session. Mayor Burk asked the Town Attorney to explain. Ms. Notar said that there are certain exceptions under the Freedom of Information Act (FOIA) and what closed sessions are for and one of them is for discussion with Council's legal counsel over probable or a pending litigation. Ms. Notar added that Council can go into a closed session if there has been a specific threat or if Council or the Town Attorney has a reasonable belief that litigation is threatened. Ms. Notar said that she has received specific threat of litigation from the Graydon Manor property owner's counsel, which she can now state because it has been stated. Ms. Notar said that in order to go into closed session the section, the basis and a general description must be stated. Ms. Notar proceeded to read a decision from the FOIA Council: "As previously opined by this office the subject need not be so specific as to defeat the reason for going into closed session but should at least provide the public with general information as to why the closed session will be held." Ms. Notar indicated that it is in the motion; it is a property owner who thinks he has specific rights. Ms. Notar said that Council does not have to go to closed session but Council did know it was on the agenda because she sent Council an email and a privileged memo. Ms. Notar explained that for the reasons in these FOIA 16 'Page Council Work Session September 23, 2019 opinions, there is no need to be specific and that she would never put Council in jeopardy of breaking the law, especially with FOIA and therefore she has followed the law. Ms. Notar said she has provided advice, but Council does not need to follow it and if Council wishes to discuss this in an open session it is Council's choice. Ms. Notar also read a text from the Virginia Municipal League (VML) as follows: "In actual or probable litigation, a closed meeting can be held only if holding a discussion in the open `adversely affect[s] the negotiating or litigating posture' of the council. For example, there is no need to hold a closed meeting to simply explain to council that the locality had been sued. The suit is a public record in the circuit court clerk's office, therefore a briefing that the suit had been filed should be done in an open meeting. In contrast, a briefing by the city attorney on the strategy for defending the suit would be appropriate for a closed meeting because open discussion would obviously hinder the defense." Mayor Burk ruled that it is not out of order and that there is a motion from Ms. Fox that wants to discuss this particular situation in the open, and which is seconded by Mr. Campbell. Council Member Campbell explained that this got further somehow than what the agenda item called for. He added that the conversation that was asked for was to simply talk about sewer services and what the landscape looks like. Mr. Campbell said that despite the fact that Ms. Notar might have had other conversations that led her to believe that there was probable litigation it was not the intent of the conversation to be held but just another conversation held with staff on what was the prior contract and what is the water capacity. Council Member Campbell said that the situation, as he knows it, is not Town business but County business first and there is no application before Council and no risk that he can understand but that was never a part of the original conversation in terms of what Council Member Fox requested which has seemed to have turned into something different that was voted on and was in Tab A. Mr. Campbell said that staff should not try to combine both of them because there was a side conversation about something that had nothing to do with what was requested, which was to discuss the facts and even what is being asked for is still a County advisement in terms of who has a process of agreeing to what application may or may not be approved. Council Member Campbell said that Council wanted to simplify and minimize the business as to learning and if that puts the Town at risk because Council is asking different questions and not reacting to what happened to the Town Attorney and Council does not have the email, letter or conversation, then it first needs to be simplified and go back to the beginning and discussing that simple part of the process and that was the whole point. Mr. Campbell says he understands that it might have turned into something else but that is not what the four head nods were for when this was put onto Tab A as a future agenda item. Council Member Campbell said he understands that Ms. Notar sent a letter on Friday at 4:34 pm. Ms. Notar said she sent something before that as well. Mr. Campbell mentioned that she did send a memo earlier but it had nothing to do with what Council was trying to discuss on that night. He added that Council was advised on the memo on Friday that staff would be present to discuss 17IPage Council Work Session September 23, 2019 sewer and water, not pending litigation. Ms. Notar stated that staff is present. Council Member Campbell said that all that Council wanted to discuss is simple water system utility services and what that prior contract called for the Town as an obligation to do. Ms. Notar said she is always going to fall on the side of caution for Council but it is Council's decision if it does not want to go into a closed session. Council Member Campbell said that something changed from what Council Member Fox asked for in terms of simple information and for Council to get an item about probable litigation because that is not what was asked for discussion. Ms. Notar said that the threat of litigation is about sewer service to Graydon Manor. Mr. Campbell said that it currently exists and this is why Council asked for currently and is the Town able to provide and what is in the contract. Ms. Notar said that there is a contract but that it was not anyone's understanding that it was just about current and nothing more. Council Member Campbell said it is clear in the minutes and therefore he is confused. Ms. Notar indicated that if Council wants to talk only about current service to Graydon Manor, then Mr. Campbell is absolutely right, there is no need to go into closed session. Council Member Dunn asked if Council was talking about Council Member Fox's motion. Mayor Burk responded affirmatively and read the motion as follows: "To have an open session in regards to the information about the Graydon Manor sewer service." Mr. Dunn said that his point for bringing up the reason for naming it is because it reads "threatened by a property owner" and he does not know why Graydon could not be put in there and he mentioned that he did not see the email and memo that staff sent out. He added that when Council Member Fox brought this item forward he did not know anything about the issue but that he agreed to bring the information forward, but now all of a sudden it is brought forth and it now has to go to a closed session. Council Member Dunn asked if Council Member Fox had not brought this forward when was Council going to be informed of this legal action. Ms. Fox interjected and said it is a "potential legal action." Ms. Notar said that there was an email discussion between the counsel for the property owner and herself in which counsel and the client indicated that they were going to meet with Council members to avoid litigation. Ms. Notar said that that seemed to have stopped and then there were questions going on by staff and the property owner. Ms. Notar said that this discussion was going to occur so she was going to wait until the end of the discussion. Council Member Dunn said he is still unclear on this and said that his question is if Council had not brought this forward when would Council members have been made aware of, by staff, of this potential legal issue and is it an issue in which Council needs to be involved. Mr. Dunn asked if Council is made aware of all legal issues with the Town. Ms. Notar said that Council does not need to be aware of all legal issues. Council Member Dunn asked if this should have been one that Council should be made aware of. Ms. Notar responded affirmatively and said that because this conversation was coming up she made Council aware of it. Mr. Dunn asked Ms. Notar how long ago did she know about the potential legal issue. Ms. Notar indicated that she knew 18IPage Council Work Session September 23, 2019 since August and her email is from August. Mr. Dunn asked if there are any other legal issues that are pending before the Town and that Council does not know about. Ms. Notar said there are none. Council Member Dunn asked if there have been legal issues before the Town for which Council has not been informed. Vice Mayor Martinez said that the discussion has gone way past what the motion was all about and what Council is talking about is a closed session for Graydon Manor and whether or not Council will go into it or not and why it would or not. Ms. Notar said that she would like to answer Council Member Dunn's question. She indicated that Council has designated the Zoning Administrator to enforce certain violations and she does not always inform Council about those because under the law Council has designated the Zoning Administrator. Ms. Notar said that there are also actions filed on slip and falls and nuisance claims by plaintiffs that VML defends and that she rarely tells Council about those other than in the updates provided. Ms. Notar said that if it is something large, she lets Council know but she does not always let Council know about the smaller claims other than in the annual or midyear report. Council Member Dunn asked if there are issues that can be discussed in open without having to go over the legal issues that would need to be discussed in closed session. Ms. Notar stated that if Council is only going to talk about what the service is now, then there is no reason to go in to closed session but if there is discussion about the implications of additional of extensions, enlargement of the site which is what Graydon Manor has proposed to staff she thinks it is going to be very difficult for staff to answer questions and Council will be putting itself in jeopardy by the questions that Council members might ask and the answers that are given. Ms. Notar said she has a reasonable belief that they will file suit if Council does not give them what they want. Ms. Notar said that they have filed suit in the County, they had four actions going and have three actions now, there has been a specific threat. Ms. Notar said that it is her duty to advise Council and therefore the conversation should occur in closed session and reiterated that it is Council's decision. Council Member Dunn asked what the issues were that staff discussed prior to it becoming a legal matter that drove them to that point. Ms. Notar said there had been referral letters to the County regarding the provision of sewer to the site and they object to the statements in the Town's referral letters to the County. Mr. Dunn asked for confirmation that their dealings have been primarily with the County, other than referral letters by staff and maybe a couple of verbal comments. Ms. Notar responded that it is so, for the most part. Council Member Dunn said he would rather discuss the items in public and that he thinks that he believes that Council should make every effort to operate in the light of day and not behind closed doors as much as possible on this, or any other issue. He said he would rather have open discussion on that and if it is deemed still necessary after that discussion then Council should make the decision to go into closed session. 19lPage Council Work Session September 23, 2019 Council Member Steinberg said that this has become quite a remarkable conversation. He believes that Council Member Campbell has simplified Council Member Fox's request when he stated that this is a general conversation about water and sewer when, in fact, it is a specific conversation on water and sewer that is being delivered to Graydon Manor. Mr. Steinberg said that if Council is only going to discuss that topic then it is going to be a short discussion because there are only 3 questions and Council already knows the answer, and they are: 1. Does the Town provide sewer and water? The answer is "Yes". 2. When did that begin? 3. What is the capacity that they are entitled to? Mayor Burk and Council Member Fox clarified that the Town only provides sewer. Council Member Steinberg apologized and rectified. Mr. Steinberg said that the Town Attorney is stating that there is now a situation where she feels that Council may be in some jeopardy in terms of revealing strategy. Mr. Steinberg added that Council was never invited into the applicant's and his representation's discussions about their plans, that Council is aware of the issues with the County on several levels and why would Council want to open itself up in the face of threatened litigation or reveal the Council's strategy is beyond him. Council Member Fox asked for what would Council be revealing its strategy. Mayor Burk said it is regarding litigation. Vice Mayor Martinez said he is surprised of so many comments about going into a closed session because a lot of what has been discussed is what Council would have discussed in the closed session and having the protection of the closed session. He added that he is surprised that Council has taken this as far as it has because for him it is a really simple question and it is if Council wants to provide more to the applicant than what he has today. Mr. Martinez stated that since Council will not go into closed session he will abstain from making comments and he will not talk about this to the applicant or anyone else, except for staff. Vice Mayor Martinez says his vote will be to not keep the discussion in an open session and if it will continue in an open session, he will leave the room. Council Member Campbell said that he has met with the applicant and has disclosed it and so has another Council member. Mr. Campbell indicated that Council is discussing this because probably as a normal course of process, Council is not always involved when the staff has referral comments on any County plan and he knows that they have met with them and made referral comments in April, June, and August and so staff and others have been involved in this conversation long before Council got involved. Council Member Campbell indicated that he thinks it was prudent to come up to speed, not on the probable litigation but on what is going on. He added that many Council members, including himself, did not know that the Town was providing sewer service. Council Member Campbell then asked, where did this begin, are there any other obligations, what does the contract look like, what is the current service, and what is the capacity being asked for. Mr. 201Page Council Work Session September 23, 2019 Campbell said that staff is aware of the comments that the applicant has made and some of those comments have been all about what Town Council has to act on or what Council should do before the County approves it. Council Member Campbell then asked when was Council going to get involved in this process of understanding if it is staff's position that Council make some decision and if Council Member Fox had not made the request when does Council get involved, and how does Council get involved appropriately. Mr. Campbell said that if that is the advice that staff wants from Council as a direction before comments are made back to the County staff the he believes that things got out of sync somewhere along the line and Council needs to be responsive. Council Member Campbell indicated that this is why he asked in order to understand what Town staff has been commenting on with the County, what the comments mean, what are the obligations for the Town, can it be done, if not why can it not be done and then Council will get involved in the technical questions. Mr. Campbell said that at the end of the day Council will take a position and staff can inform the County of this position. Council Member Campbell said that to go into a closed session to talk about probable litigation is too soon. Council Member Dunn said that a very simple policy decision was made for dealing with water and/or sewer for the VFW and yet for the Graydon Manor issue Council needs to go into a closed session. Mr. Dunn said that staff needs to make some considerations when dealing with certain clients that if there are issues they need to bring it to Council and not bring it to Council at the 1 1th hour when it is going into a possible litigation or, it is easy to say that it is possible litigation now because Council members are starting to ask some questions. Vice Mayor Martinez said that VFW is in Town and that he has no problem helping them out and that he would have a different opinion on what Council could do for Graydon Manor, if they were to support veterans. Mayor Burk said that she wanted to go on the record, since she was asked a question today, that she has not received, in the past or the present any contributions from this developer. Ms. Burk said that Council Member Fox wants to have an information session on where Graydon Manor is at this point and that there will be no discussion on expansion. Ms. Fox clarified that if Council were to talk about expansion she thinks that going into closed session might be a good idea, since she does not want to put the Town at risk, but that she does want to know what is currently going on and what kind of agreement is in place. Ms. Notar stated that there have been two prior discussions regarding sewer service to Graydon Manor. Ms. Fox recalled the discussions being about uses and requested for confirmation. Mayor Burk repeated that there is a motion on the table to have an open discussion on Graydon Manor sewer service and proceeded to ask if there are four Council members that want to have this discussion: Council Member Campbell, Council Member Dunn, Council Member Fox and Council Member Thiel. Mayor Burk asked Ms. Fox to proceed with her 21 1Page Council Work Session September 23, 2019 questions. Ms. Notar stated that Council has alerted staff to the fact that closed session may not be appropriate and therefore staff has a presentation for the open session. Vice Mayor Martinez excused himself from the meeting at 9:01 p.m. Ms. Wyks gave background information on Graydon Manor, a parcel of 131 acres located in Loudoun County's Rural Policy Area. Council Member Fox asked if going over 765 gallons a day is considered an expansion. Ms. Wyks said it is considered an extension. Ms. Fox asked about the uses for the phases apart from I and II. Ms. Wyks indicates that her understanding is that Phase I has 100 cohousing units and Phase II has 150 cohousing units plus breweries and wineries, with the understanding that the cohousing units had common buildings, ancillary buildings and flora and fauna areas. Council Member Fox asked if at the moment the Town extends sewer service based on an agreement that is in place. Ms. Wyks said that it is not an agreement but an easement when Graydon Manor became a customer in 1963 when the pipe was put in. Ms. Fox asked if there is Town pipe on the property or does the Town connect to the property. Ms. Wyks said there are public utilities on site. Council Member Fox asked if it goes all around the site. Ms. Wyks said it goes up the driveway, not all around the entire development. Ms. Fox asked if the Town would have the capacity to service the site and what would be the case for not providing service. Ms. Wyks said that was not evaluated at this time. Council Member Fox asked what the Town's capacity is right now. Ms. Wyks responded that she did not have that information with her and that it was provided in the August meeting when staff provided the semi-annual capacity report. Ms. Fox asked how staff would know if it would require more than 765 gallons. Ms. Wyks said that one single family home uses approximately 350 gallons and they are proposing 260 cohousing units at 300 gallons a day so it is well over 765 gallons. Council Member Fox asked if they are exceeding the 765 gallons. Ms. Wyks said they are not. Ms. Fox said that her biggest concern is capacity but she would like to know what would hold the Town back from making sure they get what they need since they have been a customer for so long. Ms. Wyks said she did not understand the question. Council Member Fox asked if the Town has the capacity to service this customer. Ms. Wyks said she cannot not answer based on her not knowing their ultimate build out and the sewer model has not been completed. Ms. Wyks added that all that flow has to come into Town in order to get to the waste facility and all the pipes downstream have not been evaluated. Council Member Fox asked if there is any provision in the Town Code that a change in use has to be considered when talking about capacity and whether the Town will expand services. Ms. Wyks indicated that Section 34-123 speaks to extending to new or additional use on a parcel. Council Member Campbell asked how much the Town is guided by the County's Comprehensive Plan or if the Town is independent to do things outside of that so if the County prohibits the extension of water and sewer and that policy has been around for a while and the Town decided to do it, it was 22IPage Council Work Session September 23, 2019 on the basis of doing public good. Mr. Campbell said that even though the Town passed a resolution in 1998 to discourage typically he thinks the Town will grandfather in certain agreements that the Town already has. Council Member Campbell asked if the Town has an agreement with the County that extended service into the County's Rural Policy Area. Ms. Notar said that the agreement is not with the County, the agreement was with the prior landowner to the Town. Mr. Campbell asked what permission the Town had to make that agreement that is in County property. Ms. Notar said she did not know. Council Member Campbell said it is not typical for the Town to make agreements on County homes. Ms. Notar explained that this was in the 60s, before the policy. Mr. Campbell said that water capacity has been talked about but not about revenue capacity. Ms. Wyks said that water capacity has not been discussed. Council Member Campbell said that water capacity has not been discussed basically because the Town rejected a model to be able to determine the water capacity. Mr. Campbell asked if the Town is charging fees for the current sewer service. Ms. Wyks said he commented about water capacity. Council Member Campbell said he would get back to that. Mr. Campbell said that there has been no discussion on water capacity because the Town gave the money back for a model that was presented because the Town did not want to look at it, so there can be no discussion about water capacity for a model that Council has not reviewed yet. Ms. Wyks clarified that the model request was for wastewater capacity not water capacity. Council Member Campbell asked if there has been a fmancial impact to the Town in a positive nature of any revenue for any fees that the Town has collected for the service currently provided. Mr. Campbell asked if the Town charges for the sanitary service. Ms. Wyks said that Graydon Manor receive a quarterly bill. Council Member Campbell asked if staff knew how much and if it has been a benefit for the Town. Ms. Wyks said she did not have the information but will look it up. Mr. Campbell said that he was going to make an assumption that whatever expectations there may or may not be and that Council may or may not approve at any given time might also generate additional revenue for the Town. Council Member Campbell asked if that was a logical assumption, since they will not be providing the service for free. Ms. Notar indicated that Ms. Wyks is waiting for him to finish so she can answer, and that of course the answer is "Yes". Mr. Campbell said that one of the things he is missing, which is done with every other plan that is considered, is a financial impact statement. Council Member Campbell stated that for Council to carefully consider, because again, he just has to take the staff report and what has been thrown back for Council to look at is not about possible litigation but about whether or not this is a good idea; about whether or not this fits into what Council thinks the Town can either provide as a service and if it has the capacity to provide and at the end of the day is it good and beneficial for the Town, and beneficial maybe decided as financial. Mr. Campbell asked how Council gets from where it is today to deny or approve and get to the conclusion of this process and if there is another process that it has to go through between staff and the County comments before it comes back to 23 IPage Council Work Session September 23, 2019 Council as a valid recommendation. Ms. Wyks said that the applicant needs to submit a request for an extension to the Town Manager and it will go through the process which is similar to other extensions that Council has approved and that she has presented in the past. Council Member Dunn asked what is the document or mechanism that was used in responding to the County. Ms. Notar said it is called a submission to the Town and referral comments to the County. Mr. Dunn asked if the referral comments address any of the issues that Ms. Notar had questions on. Ms. Notar responded affirmatively. Council Member Dunn asked if the referral comments were answered in the same way that they were answered during this work session. Ms. Notar said that the referral letters were answered as discussed during this work session. Mr. Dunn asked for confirmation that staff does not know the capacity needed to meet the needs. Ms. Wyks responded that staff has not evaluated the proposal. Council Member Dunn stated that probably then the cost is unknown. Ms. Wyks indicated that he is correct. Mr. Dunn asked if staff considers there to be additional costs for putting more infrastructure. Ms. Wyks said that without an evaluation she is unable to answer but that she can say that the pipe has been in the ground since 1963 so there is the potential that it might be degraded so there might be a need to upgrade the pipe. Council Member Dunn asked if the pipe is sufficient to meet the needs shown on the map. Ms. Wyks responded that this has not been evaluated. Mr. Dunn asked for confirmation that the Town is not required to provide the service, other than the fact that there was some agreement in 1963. Ms. Wyks responded affirmatively. Council Member Dunn asked for confirmation that they are not asking for water service. Ms. Wyks responded affirmatively again. Mr. Dunn asked for confirmation that the developer is not asking for the Town to provide any infrastructure on site. Ms. Wyks said there have been no conversations regarding to this matter. Council Member Dunn said that the Town probably would not do it anyway. Ms. Wyks confirmed. Mr. Dunn said that all the applicant is requesting is for wastewater service. Ms. Wyks confirmed affirmatively. Council Member Dunn asked if they have given any indicating in wanting Town water. Ms. Wyks responded that they have sufficient wells on the parcel. Mr. Dunn asked if staff has evaluated the impact of the new homes at the new homes at the corner of Dry Mill and Market Street and the buildout of C. S. Monroe. Ms. Wyks said that for the single family homes, through the plan review process a sewer evaluation would have been done and any infrastructure extension or improvements they would have been responsible for. In regards to the school site, Ms. Wyks mentioned that there have not been enough conversations to understand what the ultimate proposal is. Mr. Dunn asked what the applicant has to do in order for staff to bring this forward to Council for approval. Ms. Wyks said that the Town Code states that the applicant should request extension of sanitary sewer to the Town Manager's Office and at that point it is referred to Utilities for evaluation and then typically it will come to Council at a future meeting. Council Member Dunn asked if a request has been made by the applicant. Ms. Wyks said she is 241Page Council Work Session September 23, 2019 unaware of any request. Mr. Dunn stated that they are dealing with issues with the County and they may be waiting to get those answers before making the request. Council Member Dunn asked if there is a cost associated with the request. Staff responded that there is no fee. Mayor Burk said that this was originally approved in the 1960s because it was in the County's Rural Policy Area and because it was going to a public facility, to a school. Ms. Burk added that the County's Comprehensive Plan calls for "prohibit the extension of water and sewer to the Rural Policy Area unless it serves a public facility" and it is not a public facility anymore. Mayor Burk said that this land is still in the County's Rural Policy Area and there is no approval from the County. Ms. Burk added that the County has indicated that they will not make any changes to the Rural Policy Area so the likelihood of this getting approved is very small to begin with. Mayor Burk said that she wants to make sure that Council realized that the service was not provided on a whim, it was provided based on a policy of providing service to a public facility. Council Member Campbell asked if staff has been engaged with the applicant for at least a year since 2018. Mr. Ackman said that staff has had one meeting with the applicant a while ago and staff has not received any formal applications. Mr. Campbell said that staff had provided referral comments back to the County. Mr. Ackman said that the County referred the plan to the Town. Council Member Campbell stated that if Council gets brought into these processes sooner and get answers to its questions then it can provide direction to staff on how Council wants to proceed. Mr. Campbell said that it is unclear to him that there is an absolute policy that prohibits Council from discussing this and certainly no absolute policy that prohibits Council from discussing any type of consideration for an extension of sanitary service. Council Member Campbell asked if the correct process is for the applicant to submit a request to the Town Manager before the County approves the request. Ms. Notar indicated that in the past, applications would have a letter of intent from a utility stating who is going to serve before the County approved, and that policy has gone by the wayside. Mr. Campbell suggested that if the request has to be approved by the County before coming to Council, then it should be stated. Ms. Wyks clarified that the requests that staff has brought before Council in the past have been in the Joint Management Land Area (JMLA) in which the Town was previously noted as the provider and reiterated that this parcel is in the Rural Policy Area which currently prohibits the extension of central systems which is Town water and wastewater, unless it is for public use. Council Member Fox asked does service convey even with the change in ownership. Ms. Wyks said it conveys for the 765 gallons that were approved and on the plans specifications of what was built. Ms. Fox asked for confirmation; that there is no provision to extend that. Ms. Wyks confirmed. Council Member Dunn asked if there are discussions with the County that would have the County providing this service. Ms. Wyks said she is unaware of any discussions. Mr. Dunn said that the items that Council 25IPage Council Work Session September 23, 2019 discussed seem to have covered everything and he does not see a need to go into a closed session but that he is concerned that there are comments that staff made that could have caused this to become a legal issue and that would be on staff because it definitely did not come from Council or that staff did not say or should have acted on that the developer is complaining about, then that could be an issue. Council Member Dunn indicated that this should have been brought to Council sooner and that it is disconcerting that this was brought up by a Council member and it just so happens that staff was going to talk about it anyway and that it is also a legal issue. Mr. Dunn said that the Town should not be taking customers that are looking to do something different with the property and then have Council say, for example, that it does not like the fact that it is changing it from a school to something else. Council Member Dunn added that the Town has certain capacity issues that it needs to address. Mr. Dunn said that he does not see a need for going into a closed session to discuss any other issue because as far as he is concerned, Council probably got most of its questions answered and the only reason for going into a closed session would be to find out how this became a legal issue. No formal vote was taken on either motion and Council did not go into Closed Session on this agenda item. b. Pending Litigation/Legal Consultation Requiring Specific Legal Matters Relative to the JLMA/Annexation and/or a Boundary Line Agreement of the JLMA Vice Mayor Martinez returned to the meeting at 9:34 p.m. MOTION2019-168 On a motion by Mayor Burk, seconded by Council Member Steinberg, 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. Council Comment: Council Member Dunn said that he would like to get to the point where this could be discussed in open session so that the citizens can start hearing about Council's proposals for annexation because so far they are hearing nothing. The motion was approved by the following vote: Aye.• Campbell, Fox, Vice Mayor Martinez, Steinberg, Thiel, Mayor Burk 26IPage Council Work Session September 23, 2019 Nay: Dunn Vote: 6-1 Council went into Closed Session at 9:36 p.m. Council reconvened in a public meeting at 10:15 p.m. MOTION2019-169 On a motion by Mayor Burk, seconded by Vice Mayor Martinez, 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) Campbell -aye, Dunn -aye, Fox -aye, Vice Mayor Martinez -aye, Steinberg -aye, Thiel -aye, Mayor Burk -aye. 4. Adjournment On a motion by Council Member Dunn seconded by Council Member Fox, the meeting was adjourned at 10:15 p.m. Clerk of Council 2019_tcwsmin0923 271Page