HomeMy Public PortalAbout1992_05_1291
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TOWN COUNCIL MEETING MINUTES OF MAY 12, 1992
A regular meeting of the Leesburg Town Council was held on May 12, 1992, at 7:30 p.m., in the
Council Chambers, 25 West Market Street, Leesburg, Virginia. The meeting was called to order by the
Mayor. Mayor Sevila extended his congratulations to the successful candidates in last week's town
elections. He wished to extend his personal gratitude to those who were not successful for participating
in a very important process.
INVOCATION was given by Councilmember Donald A. Kimball.
SALIYrE TO THE FLAG was led by Cub Scout Pack 954 Dens 1 and 2.
ROLL CALL
Councilmembers present
Georgia W. Bange
James E. Clem
Christine M. Forester
Donald A. Kimball
Claxton E. Lovin
William F. Webb
Mayor Robert E. Sevila
Staff members present
Town Manager Steven C. Brown
Director of Finance Paul E. York
Director of Engineering and Public Works Thomas A. Mason
Director of Planning, Zoning and Development Michael Tompkins
Director of Utilities Randolph W. Shoemaker
Public Information Officer Susan Farmer
Town AtWrney George Martin
Clerk of Council Barbara Markland
APPROVAL OF MINUTES
MOTION
On motion of Mr. Webb, seconded by Ms. Bange, the regular meeting minutes of April 28, 1992, were
approved as submitted.
VOTE
Aye: Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
Nay: None
Mr. Chuck Thornton, Cub Master of Cub Scout Pack 954, addressed the Council. He stated that present
tonight are cubs from Wolf Den 1, led by Mr. Jim Bumgartner and Mrs. Cissy Grimm and Woff Den 2,
led by Mrs. Bobby Elliot. Pack 954 is chartered and sponsored by the Leesburg Lions Club.
Mr. Tom Jewell, addressed the Council with regard to agenda item 9.(a). He stated that when the
original application was submitted for Hillcrest, the applicants were responding to what they had been
given to understand by the Council, Planning Commission, BAR and town staff that there was a desired
use for an historic property. After the Council's vote. or. ar~. e~r!~er ordi~r, ce amendment we t;nderstood
that there was ~,t/ll some general support for the ;-li~lc:,:~?~ ~pp!ir~.~o~ b~,~ '~he Coun~]. w~nted to find a
compromise between the issues ~'~sed by the appli~:J, on and cit.~r,, co~.e~r~,~. Wc t~ok thc initi~..!ive and
subm~.;..tted ~..nother ordinc, nce em. endm.~nt propo~l~ 2~r two mor~ p~?,,]ic kear~r.g~ and mrc~,, d~scussion
town s~aff has preparcd a var,~atiou c,f the ord~nsr~ce ~s~nendment~. Thc st~;s version of the, proposed
ame.v.d.,r~nts represent a f~rther cornprom~.se~ ~,¥b.il~; ~:b.~ ~:?~'l?s ?c~;c<<:d ~r(~end~'~..~::.'~ is mu,~.~ ~Aarrower
then ',~e would have li];ed; we hope the Co~..~:.~c~ ~;.:'~I~ ~.~d~:~:' i.~ ;~:¢or;'~.y
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Minutes of May 12, 1992
would have design and construction flexibility with regard to that road that would be commensurate with
the type of value and style of homes being built. Mayor Sevila stated that he thfnk-~ that the approval
of private roads was coupled with representations about the style, type, value and architecture and the
neighborhood itself. The Mayor asked that staff take a careful look at the representations and proffers
made to the town at that time. If the town had a goal in creating residential communities like
Beauregard and if the value of those communities and the value of the town's tax base is jeopardized by
abandonment of original plans because of the uncertainty of economic times maybe we need to see if
there is a remedy to the town. Is there any protection that we can afford the people who purchased there
with the assurance that this community would be built out as originally proposed.
Mr. Brown pointed out that the town does not have any architectural elevations. Mayor Sevila stated
that one of the powers that the town has .in our PC regulations is the right of review and approval of
architectural facade and elevations. Mr. Christy asked, should that point be clarified prior to the
devastation of the property and removal of all trees in preparation for 52 sites with an undisclosed type
of home that is to be built. Is there some leeway to stop that process from taking place? Mr. Brown
stated st_~ff has asked that question of legal staff and they are very uncomfortable with holding up public
improvements that were approved for rezoning in 1986.
Mayor Sevila stated that the public improvements portion of the development - installation of sewer and
water, dedication of the easements, etc., are going to be the same regardless of what the actual facade
of the structures might be. The developer could not pull the building permit to begin construction of the
units themselves without first submitting architectural elevations for town review. There may not be a
legal basis to stop the installation of public improvements of utilities. This is something that needs to
be explored. If there are submission requirements that have not been met the town needs to use all of
the leverage that we can to make sure there is complete compliance with town regulations.
Mr. Christy. pointed out that approximately 75 to 80 percent of the homeowners in Beauregard have not
resided in the Leesburg area. He stated that the Town has succeeded in attracting people to Leesburg
through the development process in Leesburg.
With respect to trees and the town's environmental policies of the 1986 Town Plan and
additionally the effects of construction and development with regard to the FEMA
floodplain within environmentally sensitive areas. The developer plans to come in and
scrape the land side of every tree with the exception of the buffers. The area of
Beauregard has been identified in the site plan as the most significant standing of trees.
There are some significant trees that can never be replaced in our lifetimes that can be
saved with a little bit of greater care in the development of that property. When a
precedent is set forward in the Town Plan, will the town allow the devastation of the
land. The stand of trees, in question, have been identified as "some of the scarcest native
hardwoods in the North American area." This is not in sync with the Town Plan. There
should be some guidance given relative to the development of the town. There are
changes that have taken place in the floodplains that now spill over into the area that
is about to be developed. Has this been investigated? Is this a concern of the town and
does it comply with the 1986 Town Plan as amended?
Mayor Sevila stated that the Town Plan is a guide for the development of the community. According to
staff the town has reviewed its landscape ordinances and that this developer is complying with those
landscape ordinances that is the extent to which we can go. Mayor Sevila stated that the Council has
not been unmindful of the concern which has been expressed by the Beauregard residents, nor has the
town staff. He thanked the citizens for appearing tonight. Staff has been instructed to do everything
in their power and this Town Council's power to address the concerns raised.
Mr. Christy stated that staff has been very helpful and supportive in helping the residents better
understand what is here and what documentatio~ is available. Mr. Christy submitted a petition which
is attached and made a part of the official record.
Mr. Wilt, a resident of 503 ~qaber Court iv. Beauregard, ~6dress~',, the Counc~?o L~.~ e~?re~sed hi~
appreciation of stalT., s help and ~'ooper~.tion. I-Ie stated that the tw~ issues are:
· The Town needs to I,~',o t~ e Beauregard.residents clarily some of the lang-~',~'~:.
because Counsel.ha~ ~a'gest~d that sg. me of that ~.~.ng~age is very uncles:':'.
.~ t~ a legal :c;~,~n~ o~ thc, se ~.sau~ wh~.~h~ could d;.rec~.~y affect ~1:~
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Minutes of May 12, 1992
furtherance of development within the Beauregard Community. "The residents face an issue that is the
result of these economic times. The adjoining property has been t~ken back by the Farmers and
Merchants Bank and is about to be developed. We were all aware of the development of the townhouses
and we are not opposed to the townhouses being constructed. We were led to believe that these
townhouses would be developed by the builder and were to be in concert with the homes that are
currently constructed. More specifically an exclusive group of townhomes that would bare a lot of the
same resemblance to the homes that are currently in place." He raised the following concerns and issues
and asked that the Council look into these:
Private streets. The private streets in Beaurgeard do not conform to some of the VDOT
standards, therefore, the roads were deemed as private and maintained by the
homeowners association. The ingress/egress to the townhome community must come
through the private roads. It is extremely unclear as to who in fact the road belongs to.
The homeowners believe that it belongs to the homeowners association. We have not
been clearly advised that it is or is not available for ingress/egress to the townhome
property. The Council is asked to look into and assist the homeowners in developing a
clear defined definition as to who has right to that property and provisions relative to
maintenance and repairs, etc. It is not understood, at this time, that there will be
participation from the townhome owners in the maintenance of the roads.
Mayor Sevila asked if Mr. Christy and the other residents have been provided with a copy of the deed
of subdivision and dedication for the townhouse section. Mr. Christy stated that they have been provided
with many different documents and through some legal assistance we have not been able to define who
in fact has right to the road. Mayor Sevila asked that Mr. Brown provide Mr. Christy with the deed of
dedication of subdivision which should address a couple of the questions and ownership of the private
road and the role of the homeowners association with respect to the 52 lot subdivision. Mr. Brown had
a copy of the deed of dedication and stated that it does fairly, clearly states on the record plat
ingress/egress of the townhomes belong on Beauregard Drive and along Rangers Way as well. Staff is
preparing a response to the Beauregard homeowner's concerns.
Was it intended to convey or stay with the current builder in Beauregard. There is not
a distinction between the townhome owners homeowners association and the existing
homeowners association. How do those fees transpire? It was understood that it would
be one completed development and that all would share all of the related costs associated.
Mayor Sevila asked Mr. Brown if he was able to persuade the developer to find alternate access to the
townhouse development? Mr. Brown stated that from staff's review it looks like the developer has the
right to come in on the private street. The town has given final approval of the subdivision plat. Any
alteration of the plat would have to be reviewed by the town. Mayor Sevila stated that it may be an
issue of title or ownership. If the private road has been dedicated to the homeowners association then
the association would control the use of the road. The problem is did the owner/developer retain
ownership in the association until a m~jority of the lots were sold. In which case, he would be dictating
who has control over the use of the road. The covenants would cover voter's rights.
The development of the property was to be of townhomes in general architectural concert
with the current homes and of a certain value as well. The plans have been altered
significantly. We have what may be termed as an exclusive development community.
As proposed it is now going to bring the abutting property into a group of townhomes
that are to be an affordable level of housing. We have some grave concerns as to the
type of townhome now proposed to be built. The Council is asked to look into the
difficulties that may be implicated by this style of townhome being built~ We have taken
a substantial reduction in the price and value of our homes. This has a direct correlation
to the tax base in the Town of Leesburg. With style of townhome proposed to be built
we see further implications of the reduction of thE.. 'v'~lue of 'the cu~ent homes. The
townhomes that were to be huJ~.t ~,~!~,;, t~ be of ~' ,:~:~:,:.~ v~?,~.~, t~ er, hence the homes
that we currently live in.
Mayor Sevila stated that he was on Zhe ¥cc~,,"~ Z';~' ~:,L: ::. '.'~.., ~: ~ax, .'.:r:~.~(:'. ~ub~sion ca~xxe in. He
re~ed that ~h~ p~vate road wb~c~, w~s ~,??r~,~'c~ :~,):' ~:' ." "~.-:~ '~:; ~-. ' '~:h~ ~rst ~nd only such road.
approved by the Council in the '~.o~,,~ ]':: ...~:~ :.~?ro,,c.' i .... ': ~ .z.~ it,: ~c;p:'e~en~,~ons by the then
developer ~at would gi~'c the d~c'
curb~ ~ers, e~., that would re.~:..~
evabl~ the tow~. and the d~veiope'
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Minutes of May 12, 1992
The Town has the right to initiate rezonings on its own. There are issues relative to this
plan that staff is not happy with but are faced with a 1986 approval and difficulty in
changh~g it. Counsel has suggested to us that if the Council felt the plan, as it stands
now, was gregarious particularly the juxta position of relatively low cost houses with high
cost houses, the Town Council had the right to initiate a rezoning.
Mr. Craig Fredrick, a resident of 502 Fortress Circle in Beauregard, addressed the Council. He stated
that on the advice of counsel who is nationally known for real estate development suggested that the
town get some sort of judicial review with regard to the proffers. With regard to the single-family
development those proffers are labeled as 022. There is a separate set of proffers in the townhome
development which are labeled 021. It is specifically stated in proffers 022 that the right-of-way of the
roads within Beauregard Estates and specifically Ranger Way are passed on to the successor of that
particular development. It is explicitly and specifically deleted in the preamble to the proffers of 021.
The counsel felt it would require judicial review to determine what was the intent of putting that sort
of language where the right-of-way passed on to 022's developer and not to the proffers related to 021.
Mrs. Ann Chopivsky, a resident of 306 West Market Street. addressed the Council with regard to the
proposal to change the zoning on West Market to allow for special exception. She stated that the
Hillcrest home is a wonderful home and it should be lived in preferably by a family with children that
would add to the integrity and harmony of the neighborhood. Changing the zoning to allow for special
exceptions is like adding another strip center which would draw more traffic out of Leesburg. It creates
one more spot for competition.
Mrs. Karen Jewell, representing the Hillcrest applicants, addressed the Council. She stated that the
proposed ordinance amendments affect all potential applicants for bed and breakfast establishments in
the Town of Leesburg in the future.
She stated that the Town Plan urges adaptive reuse of historic structures. The Zoning Ordinance
contemplates bed and breakfast establishments being located by special exception in residential areas.
The proposed amendments, modified by staff were drafted in good faith as a compromise. It was clear
that there was support for the proposition of Hillcrest as a bed and breakfast. Support for the Hillcrest
application in general, namely as a strict bed and breakfast with some ancillary use as a place for
business meetings or seminars. Leesburg has a similar establishment that co-exists peacefully with its
neighbors in a residential area. Councilmembers, however, thought there should be some compromise
on items in the Hillcrest application, specifically social events. This appears to be the main item which
concerns town residents. Therefore, when the conditions were drafted that are listed in the original
version of the proposed amendments, concerns raised and the alternatives suggested by the
councilmembers, neighbors and town staff were compiled. Before the public hearings were held, Ms.
Jewen met with councilmembers, neighbors and citizens who earlier expressed opposition. She stated
"that what she heard during those conversations was that some further modification to these
amendments, such as, the version staff has proposed would be an acceptable compromise. It would
preserve the character of the neighborhood, would allow Hillcrest to be available to town citizens and
would be an addition to the town. While the Planning Commission voted to recommend that the Council
not adopt any amendment. I found it puzzling that many of the commission members stated that their
vote was based upon a petition that was reportedly signed by 57 citizens of the town. Staff has not been
able to find any such petition. What staff can find is a petition that was a letter and three copies of it
signed by 31 citizens which represented a total of 20 parcels some near Hillcrest many were blocks away.
However, it was a petition in response to an earlier ordinance amendment which was defeated. The
petition was not in response to the amendment before the Council tonight nor to the proposed
amendments that had been before the Planning Commission a few weeks ago. In fact some of the same
people who signed that petition have since said that there was no objection to an amendment that might
allow a bed and breakfast inn with some business meetings or seminars. I would like to think that when
a compromise is suggested that people were suggesting it in good faith and I would like to think that folks
were being sincere when they said that they would favor an ame~d~.~ent tllat ~dlowed bed and breakfast
inns, not just Hillcrest. to hold business meetings and seminars in an arrangement quite similar to the
one in the Glenfiddich House. Therefore, I world ifke to ihink ths,t ~,!:mt the Council has before them
tonight as items 9.(a) and (b) o;; the agenda, that you ha~..~; the co~,:~.pron~.i~ that you asked for. The ..
modified amendments to Article 18 and .~,rticle ilL-7. '.( would !i' ~ 't.o think that in the spirit of
compromise that the Council will look f~vorab~y and ~dop~ ':,hose amcn~ment~ this .evening."
Mr. Peter Chopivsk_v~ a resident of 30~ We'~: M[arke'~: ";;"-~
o,~ ~:~ ~.6dresse,~'l the C~u,~,dL He stated that
col!ect~vely and fndividually the residents h~',i? )~.,:,~ .... ~ ~',v, '-.,'i~,a!.~;~g~,, 2be
the~ '~::mld vote. against the p~.ssage of the ~)?:,p~,.:~:: ~ uv,.:.;,.:,.,~? Thc ~:,'v:~.~;b~.?,...4~[. majority o:~
ne~(,i :'.~rs would prefer to maintain [~:![i(':~::;;;', .:..:~ ~,: p~;,~?,.'.. : ,:~..:?:,~ ;:~, '??,
Minutes of May 12, 1992
neighborhood in the character in which we found it when we bought our homes and made our
investment in and commitment to Leesburg and the West Market Street neighborhood. We want to see
the preservation of our peaceful, non-commercial, residential and family neighborhood. Something that
would be jeopardized by the passage of the proposed amendment. This amendment is not needed. The
vast majority of citizens immediately affected do not want it. We petition the Council to remain faithful
to the Town Plan and the current definition of bed and breakfast and to defeat the proposed amendment."
COUNCILMEMBER COMMENTS
Mr. Webb congratulated the winners of last week's election.
He attended Saturday's Listening Session where one individual came in representing several neighbors
on Ayr Street with regard to the noise from the air conditioning units at the new Rust Library. Mr.
Brown is currently looking into the matter.
Also present at Saturday's Listening Session was one resident from Beauregard Estates. She was told
to present the resident's concern this evening.
Mr. Lovin wished to salute the eight citizens of Leesburg who were the candidates for town council and
mayors race. He congratulated those that will be taking seats on the council in July.
He stated that two-thirds of the eligible voters in the Town of Leesburg elected not to participate or vote
in the elections. This is very disturbing.
On May 5, he attended a reception at the airport hosted by American Beechcraft regarding their product
line and some of the activity that is taking place at the airport. He congratulated Jim Haynes and
Janelle Aviation for all the work they are doing with the Leesburg Airport.
He asked for Council's support in waiving the cost of lifeguards and the pre and post maintenance costs
at Ida Lee Park for the Loudoun County High School's All Night Graduation Party. The total cost is
$38O.OO.
Mayor Sevila asked if there are funds available. Mr. Brown stated that $385.00 is not enough to
significantly affect the operation of the park.
MOTION
On motion of Mr. Lovin, seconded by Mr. Webb, a contribution of $385.00 for the use of Ida Lee Park
for the All Night Graduation Party is approved.
VOTE
Nay:
Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
None
Mr. Lovin attended the Leesburg Renaissance Board of Director's meeting on Wednesday. The
organization has written two memos to the Town Council regarding the acquisition/employment of a
revitalization officer, and whether or not the town should allow free parking. The memos are attached
and made a part of the official record.
Mr. Clem recommended referring these issues to the Administration and Public Works Committee for
further consideration and discussion, further stating that the town is receiving mixed signals from the
various organizations, in that, some are requesting free parking and others are requesting that funds
generated from paid parking be u~ed to' assist these organizations.
Mr. Brown stated that these organizations hove worked very hard to come up with some of these
suggestions. He stated that the Council has not been a palx~y to the analysis that is necessary to consider
these types of recommendatior~s. An ad-hoc, committee was established for the purpose of evaluating
s,-~ggestions such as the.,~.e. It may be properto refer these suggestions to the ad hoc committee.
Mayor Sevila asked
~'these issues would affect the adoption of the budget. Mr. Brown recoramended
lead. and adopt the budget as preser~ted. There is no legislation this eveaii:g to
july 1. . . - ". ~ -. ~.~;~
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Minutes of May 12, 1992
Mr. Kimball asked that these memos be copied to the EDAC.
Ms. Bange stated that she met with Susan Horne of the Chamber of Commerce and discussed these same
issues and the mixed messages that the Council is getting about free and paid parking. The ad hoc
committee would be a good unit to pull together the Leesburg Renaissance, Chamber of Commerce,
CAVB, downtown businesses, etc.
MOTION
On motion of Mr. Lovin, seconded by Mrs. Forester, these issues are referred to the May 19,
Administration and Public Works Committee agenda for further consideration.
VOTE
Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
None
Mr. Clem stated that on Sunday, May 3, he attended Loyalty Day where fire, rescue, police individuals
are honored for heroism. Officer William Potter received an award for the Loudoun House incident.
He congratulated the candidates who were elected to the Town Council.
He congratulated the Leesburg Baptist Church which held a goundbreaking ceremony on Sunday for its
education building.
He thanked Mr. Sam Legard who flew him to the Fredrick, Maryland airport to look at the terrain and
Leesburg as a whole.
Mr. Kimball stated that he is glad to be back. He was recently hospitalized in Florida for four days while
on a business trip. He stated that things have come out alright and that he did not have a heart attack.
He suffered from internal problems that are now being treated and are under control. Mr. Kimball
thanked everyone who sent him expressions of concern and for their prayers and well wishes.
He congratulated the newly elected councilmembers and new mayor-elect.
He questioned the disposition of the Interfaith Relief proposal. Mr. Brown stated that he, as directed by
the Town Council, is in the process of negotiating a lease. He stated that the residents of Chesterfield
have developed some concerns. Staff is dealing with and addressing these concerns as well. A meeting
has been scheduled with Mr. Pickar, President of Interfaith Relief and representatives of the Chesterfield
community. This issue will be further addressed at the next Administration and Public Works
Committee meeting. Mr. Brown stated that Interfaith's current proposal is to eventually serve hot meals
on the premises. In addition, additional space is being requested from the original proposal of
Interfaith's.
Mrs. Forester congratulated Mr. Clem and the successful candidates who will be taking office on July 1.
She wished them well in their endeavors to lead the town in the next couple of years.
There is a fund raiser going on this month for the Leesburg Crime Prevention Counsel in concert with
Bob's Big Boy. Bob's Big Boy will rebate $1.00 for every strawberry pie. Funds will go to the crime
prevention counsel.
She thanked WAGE Radio for all the radio advertisement they have been doing this week for Light Up
the Sky in order to raise funds for the 4th of July fireworks.
Loudoun County High School held their senior prom on Saturday evening. She congratulated the prom
King and Queen, Kim Kozikowski and her son Glen Forester.
Ms. Bange attended the Parks and Recreation Commission xneeting this morning.
She congratulated all the candidates who participated in the election.
Light Up the Sky fundraising has been going on and on Thursday morning at the corner of King and
Market, Loudoun and King and Catoctin and Harrison ~treets WAC~E and other individuals will be
present with pails to collect money from vehicles.
Minutes of May 12, 1992
The carnival is presently going on at Ida Lee Park. It is not in competition with any civic organization.
She encouraged everyone to attend.
MANAGER'S REPORT
Mr. Brown reported that the Council did receive a copy of the written Activity Report.
He commended Gary Huff who helped raise funds for the fireworks on the 4th of July. Mr. Huff
reported earlier today that the Charles E. Smith Company developer of the University Center agreed to
match $1.00 for every $2.00 donated.
Chief of Current Planning Lee Phillips needs to be recognized for his efforts in helping and meeting with
the Beauregard Estate residents.
The town staff looks forward to working with the newly elected officials.
LEGISLATION
9. (a)
MOTION
On motion of Mr. Kimball, seconded by Ms. Bange the following ordinance was proposed and denied.
ORDINANCE: AMENDING ARTICLE 18 OF THE LEESBURG ZONING ORDINANCE TO REVISE
THE DEFINITION OF BED AND BREAKFAST INN
WHEREAS, the Town Council expressed a concern that the present definition of a bed and
breakfast inn, as set forth in Article 18 of the Leesburg Zoning Ordinance, permits the provision of food
and lodging but does not expressly provide for all allowance of appropriate, related ancillary uses; and
WHEREAS, the Town Council initiated and referred an amendment to the Planning Commission
on January 28, 1992, which defines a bed and breakfast inn and provides for certain ancillary uses subject
to conditions; and
WHEREAS, the Planning Commission held a public hearing on February 27, 1992, to consider
the proposed amendment; and
WHEREAS, on March 5, 1992, the Planning Commission recommended denial of the amendment;
and
WHEREAS, on April 28, 1992, the Town Council held a public hearing on this amendment; and
WHEREAS, it is desired that certain ancillary uses be permitted within a bed and breakfast inn
if authorized by the Town Council on a case by case basis:
THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. Article 18 Definitions of the Leesburg Zoning Ordinance is hereby amended to
include the following definitions:
BED AND BREAKFAST INN
A private residence in which lodging and food are provided by the owner or operator for
profit to one or more transient guests. Bed and breakfast inns shall not include more
than five guest rooms. Commercial use or rental of the property for bu~inc;~ mcc~n~,
~c~--2~n~m, receptions, and similar social events or activities shall not be permitted.
Business meetings and seminars may be permitted if authorized by the Town Council
by soecial exception subject to conditions. The owner or operator shall be a resident of
the inn.
SECTION III. Severability. If any provision of this ordinance is declared invalid by a court of
competent jurisdiction, the decision shall not affect the validity of the ordinance as a whole or any
remaining provisions of the zoning ordinance.
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Minutes of May 12, 1992
SECTION V. This ordinance shall be in effect upon its passage.
DISCUSSION
Ms. Bange stated that she was under the impression that the Planning Commission had recommended
approval of this compromised motion. Reading this ordinance she sees that it was not approved.
Mr. Tompkins stated that the vote at the Planning Commission was nay by a vote of 6-1.
Mr. Lovin stated that he supports Hincrest as an historic dwelling and the readaptive use of the property.
He supports the bed and breakfast concept but cannot support the proposed ordinance, as written, to
allow ancillary uses that would be a detriment to the neighborhood.
Mrs. Forester stated that she was the only Planning Commissioner that did not vote against the proposed
ordinance. She stated 'q~ecause I was going to see this again I wanted to remain open to the flexibility
of what this proposal was. I did not agree with the proposal at the time but I felt that if we could be
flexible and work something out with the neighborhood I wanted to be able to do that. I, like Mrs.
Jewell, had heard originally several months ago from the citizens that they really wanted to try to work
out a compromise and that they wanted to do something if they could to work out a compromise on this.
I thought that was what we were working towards. I thought that we were looking at a compromise that
would be allowing the business meetings and the seminars but not allowing special events. As this has
gone through the process again that is not what I have heard from the neighbors and that is not the
message that I have gotten from the neighborhood. They would support Hillcrest and don't want to see
anything happen to the property but cannot support the proposed amendments to the ordinance. I don't
support the proposed amendments either and will be voting against them. I did leave my options open
so that if there was a compromise or something else that could be considered we could do that at the
Council level."
Mr. George Poehlman addressed the Council stating "we have heard three different discussions about the
preservation of neighborhoods. We had a very impassioned group from Beauregard who are very
concerned about the neighborhood, about the community that imparts to their families. The issue is not
Hillcrest. The issue is the preservation of neighborhoods. The issue is the movement of commercial
business into residential neighborhoods. The conscience of this Council, the conscience of this community
is that we want to preserve our neighborhoods. We want to help downtown business and in a time such
as this moving business further out of downtown deluding our neighborhoods is not in the best interest
of this community. You as town fathers have an obligation to the citizens of this community and that
is to maintain our neighborhoods. To keep them a place where we can raise our families and our
children. To help support our business and keep downtown Leesburg viable to the best we can."
Mr. Kimball stated that this has been before the Council for quite some time and there has been a lot
of public debate. There is a need to maintain neighborhood character and integrity. There is also a need
to balance the business concerns in this area. He stated that he is not convinced that an additional bed
and breakfast half a mile from downtown will take business out of downtown. This proposal has been
much improved upon what was first proposed. There have been some assurances placed within the
process to meet the concerns of the residents. As previously stated not all of the residents are against
it. He will support the proposed ordinance.
Ms. Bange stated that the Council should consider the fact that this is an overall definition. Not one
residence. Each application will be considered on its own merit.
Mayor Sevila stated that he has watched as this process has come forward with the hope that there might
be some compromise or room for negotiation between the residents and the owners of the property. He
expressed disappointment that there has not been. Having failed to come up with a compromise we have
to give paramount weight to the residents who already reside there.
Mayor Sevila commended Mrs. Jewell stating that she worked very hard with this application. However,
the competing interests that confront this applicationl and the concern for those interests force him to
vote no.
Ms. Bange stated that since the Town Council was voting on behalf of the whole town she would support
the ordinance. This ordinance affects many properties not just one.
VOTE
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Minutes of May 12, 1992
Aye: Bange, Kimball
Nay: Clem, Forester, Lovin, Webb and Mayor Sevila
9. (b) This item was rendered mute by action of 9.(a).
9. (i)
MOTION
On motion of Mrs. Forester, seconded by Mr. Lovin, the following resolution was proposed and adopted.
92-63 - RESOLUTION - DENYING AMENDMENTS TO ARTICLE llA-7, SECTION (6) OF THE
LEESBURG ZONING ORDINANCE TO REVISE THE SPECIAL EXCEPTION
STANDARDS OF A BED AND BREAKFAST INN, AND ARTICLE 18 OF THE
LEESBURG ZONING ORDiNANCE TO THE DEFINITION OF BED AND BREAKFAST
INN
WHEREAS, the present definition of a bed and breakfast inn, as set forth in Article 18 of the
Leesburg Zoning Ordinance, permits the provision of food and lodging but does not expressly provide for
the allowance of appropriate, related ancillary uses; and
WHEREAS, the present special exception standards for a bed and breakfast inn, as set forth in
Article 11-7(6) of the Leesburg Zoning Ordinance, do not provide specific review criteria for ancillary uses,
incidental to a bed and breakfast inn; and
WI-IE~, on January 28, 1992, the Town Council initiated and referred amendments to the
Planning commission revising the definition of a bed and breakfast inn and providing for certain ancillary
uses subject to additional special exception review criteria; and
WHEREAS, on February 27, 1992, the Planning Commission held a public hearing to consider
both of the proposed amendments; and
WHEREAS, on March 5, 1992, the Planning Commission recommended denial of the
amendments; and
WHEREAS, on April 28, 1992, the Town Council held a public hearing on these amendments;
and
WHEREAS, numerous residents have raised concerns about the adverse impacts of these
proposed amendments on existing residential neighborhoods:
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows:
The proposed amendments to Article llA-7 Section (6) of the Leesburg Zoning Ordinance to
revise the special exception standards of a bed and breakfast inn and to Article 18 of the Leesburg Zoning
Ordinance to the definition of bed and breakfast inn are hereby denied.
DISCUSSION
Mr. Kimball noted that there were residents in the Hillcrest area that did not raise concerns.
VOTE
Clem, Forester, Lovin, Webb and Mayor Sevila
Bange, Kimball
9. (c)
Mr. Brown presented an executive summary of the proposed legislation in lieu of the reading. He stated
that the legislation authorizes the change of the real estate tax from $.19 per $100.00 of assessed value
to $.205.
MOTION
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Minutes of May 12, 1992
On motion of Mr. Lovin, seconded by Mrs. Forester, the following ordinance was proposed and adopted.
92-0-11 - ORDINANCE - AMENDING ARTICLE 1 OF CHAPTER 17 OF THE TOWN CODE TO
REVISE THE REAL ESTATE TAX RATE FOR 1992
WHEREAS, the approved budget for fiscal year 1993 is balanced with a real estate tax rate of
$0.205 per $100 assessed value for 1992 real estate taxes.
THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. Section 17-1 of the Town Code is amended to read as follows:
Section 17.1. Annual Levy and Rate of Taxes.
Taxes shall be levied and collected as provided by law on taxable real estate, tangible
personal property and bank capital in the town for each fiscal year beginning July 1 and ending
June 30 for the support of the town government, payment of interest on town debt and for other
town purposes. Every person assessed taxes by the town shall pay them as required by law.
(1)
Taxes on all real estate and all tangible personal property, except the
property of public service corporations, shall be as follows:
Classification of Property.
Rate of Tax per $100 Assessed Value
(a) Real estate $$0.19 $0.205
(b)
Vehicles used as mobile homes or
offices
$9.19 $0.205
(c) Aircraft $0.001
(d) All other tangible personal property
$1.00
(2)
Taxes on all real estate and all tangible personal property of public service
corporations shall be as follows:
Classification of Property,
Rate of Tax per $100 Assessed Value
(a) Real estate $9.19 $0.205
(b) Tangible personal property
$1.00
SECTION II. All prior ordinances and resolutions in conflict herewith are repealed.
SECTION III. This ordinance shall be in effect upon its passage for tax year 1992.
DISCUSSION
Mr. Webb stated that in the last few weeks he has been in contact with 3 different oil companies which
have 800 customers now on assistance because they are unable to pay their fuel bills. He stated that Mr.
Pickar with Interfaith says there are 500 families now being fed by Interfaith. The County Treasurer
stated that on the 29th of May, 5000 residents in Loudoun County will be in court because they are
unable to pay their taxes for last year. The Town is talking about increasing taxes for people who cannot
afford it. There are a lot of things in this budget that could be reduced. We are here to represent the
citizens of the whole town. He stated he could not support the proposed budget.
Mr. Lovin stated that he has had the opportunity to vote on four budgets during his term of office which
includes four real estate tax rate reviews. He stated that he would support the $.205 tax increase. This
increase represents an average real estate increase of $7.78 per year - sixty-five cents per month.
Assessments have dropped in the last two years 10 percent yet Leesburg's tax rate has only gone up two
and one half cents. Leesburg still has the lowest tax rate in Northern Virginia. The town must be
responsible. We are required to enact by state statute a budget and lining up to vote against it is not
responsible. We have to do what is good for all the town.
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Mr. Kimball stated that the town should conduct a comprehensive review and analysis for a proper
assessment on aircraft. We owe the citizens of this town an explanation of why the aircraft tax is $0.001.
He requested that the town begin this review and analysis.
Ms. Bange stated that the revenue from taxes on aircraft, this year, was $300.00. She also requested that
this analysis be completed before the next budget process begins. She stated that she will reluctantly
support the proposed budget~ She stated that beginning in July she hoped the town will begin an
extensive review on how funds are being spent.
Mayor Sevila stated that the citizens of the town elect the Council to carefully and conservatively watch
over their funds but they also elect the Council to run a town. He stated that he, like his other
councilmembers, is sorry that we have to consider increasing the tax rate. It is not in effect a tax
increase for the majority of residents and home owners. He stated that he is convinced that the Council
has done the best job that can be done. The Council's full time and attention has been put forth during
the budget process. It is now time to do the responsible thing and that is to adopt a budget with a tax
rate that enables this town to continue to function and provide services that have been cut to their bare
minimum.
With respect to the aircraft tax. He asked that Mr. Brown review this matter. He stated that the sad
fact is that if the town does impose a personal property tax it could mean as much as $50,000 to $100,000
to an aircraft owner in a given year and the simple fact is that aircraft will wind up in Frederick,
Manassas or Dulles. All of which have competent and professional FBO services and none of which
impose the personal property tax.
Mr. Lovin stated that this aircraft tax is a very good economic development tool and he urged the town's
caution with regard to change in the aircraft tax.
Mr. Kimball again requested that the town provide a comprehensive review and analysis of the whole
aircraft taxing structure.
VOTE
Councilmembers Bange, Forester, Kimball, Lovin, Mayor Sevila
Councilmembers Clem and Webb
9. (d)
MOTION
On motion of Mr. Clem, seconded by Mr. Kimball, the following ordinance was proposed and
unanimously adopted.
92-0-12 - ORDINANCE - AMENDING SECTION 10-41 OF THE TOWN CODE
SECTION II.
DISCUSSION
WHEREAS, the fiscal year 1993 budget is balanced based upon an increase in the vehicle license
THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. Section 10-41 of the Town Code is amended to read as follows:
Sec. 10-41. Amount of fee, where fee paid and license purchased.
The amount of the license fee imposed by this Article shall be $2~.9e $25.00 for
automobiles and trucks and $15.00 for motorcycles. The license fee shall be paid to and the
license purchased from the office of the Director of Finance.
This ordinance shall be effective on and after July 1, 1992.
Mr. Webb suggested selling these licenses for two year periods. Mr. Brown stated that the town would
have to look into this suggestion.
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VOTE
Aye:
Nay:
9.
Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
None
Mr. Brown stated that the proposed ordinance would authorize the town to raise the cigarette tax from
$.5 cents per pack to $.15 cents per pack. This is another item upon which the budget was balanced.
MOTION
On motion of Mr. Lovin, seconded by Ms. Bange, the following ordinance was proposed and adopted.
92-0-13 - ORDINANCE - AMENDING ARTICLE VII OF CHAPTER 17, "TAXATION AND LICENSES"
IN ORDER TO REVISE THE TAX ON CIGARETTES SOLD IN THE TOWN OF
LEESBURG
WHEREAS, the Town of Leesburg under Section 3-1 of its Charter and Section 15.1-841, Code
of Virginia (1950), as amended, is authorized to enact taxes on property and other lawful subjects as in
the judgment of the Town Council are necessary to pay the debts, defray the expenses, accomplish the
purposes and perform the functions of the town; and
WHEREAS, under Sections 58.1-3840, 58.1-3830, 58.1-3831 and 58.1-3832, Code of Virginia
(1950) as amended, and the aforesaid authority, the town is authorized to levy a tax upon cigarettes sold
within the town; and
WHEREAS, the proposed budget for the fiscal year ending June 30, 1993, contemplates an
increase in the cigarette tax of from $.05 per pack to $.15 per pack; and
WHEREAS, this Council deems the levy of such a tax on cigarettes necessary to pay the debts,
defray the expenses, accomplish the purposes and perform the functions of the town; and
WHEREAS, a public hearing was held on April 14, 1992, as required by the Town Code:
THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. The Town Code is amended by revising Section 17-147 of Article VII, of Chapter
17 which read as follows:
ARTICLE VII - CIGARETTE TAX
Section 17-146. Definitions.
For the purpose of this Article the following words and phrases shall have the meanings
respectively ascribed to them by this Section:
(a) Board shall mean the Town of Leesburg; any agency or authority of the Town of
Leesburg; for the administration and enforcement of the cigarette tax ordinance; or any agency or
authority for the administration and enforcement of the cigarette tax ordinance to which the Town of
Leesburg, pursuant to the authorities contained in Section 15.1-21 of the Code of Virginia of 1950, as
amended, delegates such administrative and enforcement pursuant to the provisions of Section 58.1-3832
of the Code of Virginia of 1950, as amended.
(b) Carton shall mean any container, regardless of material used in its construction, in which
ten (10) packages of twenty (20) cigarettes are placed.
(c) Cigarette shall mean and include any roll of any size or shape for smoking, whether
filtered or unfiltered, with or without a mouthpiece, made wholly or partly of cut, shredded or crimped
tobacco or other plant or substitute for tobacco, whether the same is flavored, adulterated or mixed with
another ingredient, if the wrapper or cover is made of any material other than leaf tobacco or
homogenized leaf tobacco, regardless of whether the roll is labeled or sold as a cigarette or by any other
name.
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(d) Town shall mean Town of Leesburg, Virginia.
(e) Dealer shall mean and include every manufacturer's representative, self wholesaler,
retailer, vending machine operator, public warehouseman or other person who shall sell, receive, store,
possess, distribute or transport cigarettes within or into the town.
(f) Package shall mean and include any container, regardless of the material used in its
construction in which separate cigarettes are placed without such cigarettes being placed into any
container within the package. Packages are those containers of cigarettes from which they are consumed
by their ultimate user. Ordinarily a package contains twenty (20) cigarettes; however, "package" includes
those containers in which fewer or more than twenty (20) cigarettes are placed.
(g) Person shall mean and include any individual, firm, unincorporated association, company,
corporation, joint stock company, group, agency, syndicate, trust or trustee, receiver, fiduciary, partnership
and conservator. The word "person" as applied to a partnership, unincorporated association or other joint
venture means the partners or members thereof, and as applied to a corporation shall include all the
officers and directors thereof.
(h) Place of business shall mean and include any place where cigarettes are sold, placed,
stored, offered for sale or displayed for sale or where cigarettes are brought or kept for the purpose of
sale, consumption or distribution, including vending machines, by a dealer within the town.
(i) Registered agent shall mean and include every dealer and other person who shall be
required to report and collect the tax on cigarettes under the provisions of this Article.
(j) Retail dealer shall mean and include every person who, in the usual course of business,
purchases or receives cigarettes from any source whatsoever for the purpose of sale within the town to
the ultimate consumer; or any person who, in the usual course of business, owns, leases, or otherwise
operates within his own place of business, one or more cigarette vending machines for the purpose of sale
within the town of cigarettes to the ultimate consumer; or any person who, in any manner, buys, sells,
stores, transfers, or deals in cigarettes for the purpose of sale within the town to the ultimate consumer,
who is not licensed as a wholesaler, or vending machine operator.
(k) Sale or sell shall mean and include every act or transaction, regardless of the method or
means employed, including barter, exchange, or the use of vending machines or other mechanical devices
or a criminal or tortious act whereby either ownership or possession, or both, of any cigarettes shall be
transferred within the town from a dealer as herein defined to any other person for a consideration.
(1) Stamp shall mean a small gummed piece of paper or decal used to evidence provision for
payment of the tax as authorized by the Board required to be affixed to every package of cigarettes sold
or used within the town.
(m) Store or storage shall mean and include the keeping or retention of cigarettes in this town
for any purpose except sale in the regular course of business.
(n) Use shall mean and include the exercise of any fight or power over any cigarettes or
packages or dgarettes incident to the ownership or possession of those cigarettes or packages of cigarettes
including any transaction where possession is given or received or otherwise transferred, other than a
sale.
(o) User shall mean any person who exercises any fight or power over any cigarettes or
packages of cigarettes subject to the provisions of this Article incident to the ownership or possession of
those cigarettes or packages of cigarettes or any transaction where possession is given or received or
otherwise transferred, other than a sale.
Section 17-147. Levy. and rate.
In addition to all other taxes of every kind now or hereinafter imposed by law, there is hereby
levied and imposed by the town upon every person who sells or uses cigarettes within the town from and
after the effective date of this Article an excise tax equivalent to fi':c fifteen cents for each package
containing twenty (20) cigarettes and 2,5 7.__~5 mills for each cigarette contained in packages of fewer or
more than twenty (20) cigarettes sold or used within the town. The tax shall be paid and collected in
the manner and at the time hereinafter prescribed; provided, that the tax payable for each cigarette or
cigarette package sold or used within the town shall be paid but once. The tax hereby levied shall not
apply to free distribution of sample cigarettes in packages containing five (5) or fewer cigarettes.
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Section 17-148. Delegation of Administration.
(a) The town manager is authorized to enter into a written contract on behalf of the Town
of Leesburg delegating the administrative and enforcement authority under this Article to the Northern
Virginia Cigarette Tax Board or its successors or any other agency or authority which qualifies pursuant
to the provisions of Section 15.1-21 of the Code of Virginia of 1950, as amended.
(b) The agency or authority so delegated is authorized to promulgate such rules and
regulations, as it deems appropriate, governing:.
(1) The display of cigarette stamps in vending machines;
(2) The placement of tax liens against property of taxpayers hereunder;
(3) The extending of varying discount rates;
(4) The establishing of different classes of taxpayers or those required to collect and
remit the tax;
(5) The requirements concerning keeping and production of records;
(6) The administrative and jeopardy assessment of tax where reasonably justified;
(7) The required notice to authorities of sale of taxpayer's business;
(8) The audit requirements and authority;
(9) The criteria for authority of distributors and others to possess untaxed cigarettes;
and
(10) Any and all powers granted by the provisions of Section 58.1-382(9) of the Code
of Virginia of 1950, as amended, or necessarily implied therefrom.
(c) Any agency or authority so delegated by the town manager on behalf of the Town of
Leesburg pursuant to the provisions of paragraph (a) of this section immediately hereinabove, is
authorized to:
(1) Issue a common revenue stamp;
(2) Employ legal counsel;
(3) Bring appropriate court action in its own name where necessary to enforce
payment of the cigarette taxes or penalties;
(4) Provide cigarette tax agents and the necessary enforcement supplies and
equipment needed to effectively enforce the cigarette tax ordinance.
Section 17-149. Methods of collection.
(a) The tax imposed by this Article shall be evidenced by the use of a stamp and shall be
paid by each dealer or other person liable for the tax under a reporting method deemed by the Board to
carry out the provisions of this Article. The stamps shall be affixed in such a manner that their removal
will require continued application of water or stream. Each dealer or other person liable for the tax is
hereby required, and it shall be his duty, to collect and pay the tax and report separately for packages
of twenty (20) cigarettes o forms prescribed for this purpose by the Board:
(1) The quantity of Board-stamped cigarettes sold or delivered to:
(a) Each registered agent appointed by the Board for which no tax was
collected;
(b) Each manufacturer's representative; and
(c) Each separate person and place of business within the town during the
preceding calendar or fiscal month; and
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(2) The quantity of Board stamps on hand, both affixed and unaffixed on the first
day and the last day of the preceding calendar or fiscal month and the quantity of Board stamps or Board
stamped cigarettes received during the preceding calendar or fiscal month; and
(3) The quantity of cigarettes on hand to which the Board stamp had not been Rffixed
on the first and last day of the preceding calendar or fiscal month and the quantity of cigarettes received
during the preceding calendar or fiscal month to which the Board stamp had not been Riff×ed; and
(4) Such further information as the administrator for the board may require for the
proper administration and enforcement of this Article for the determination of the exact number of
cigarettes in the possession of each dealer or user.
(b) Each dealer or other person liable for the tax shall file such reports with the Board and
pay the tax due to the Board between the first and twentieth day after the close of each calendar or fiscal
month, and shall furnish a copy of any cigarette tax reports submitted to the Virginia Department of
Taxation for the previous month.
(c) When, upon examination and audit of any invoices, records, books, cancelled checks or
other memoranda touching on the purchase, .sale, receipt, storage or possession of tobacco products taxed
herein, any dealer or other person liable for the tax is unable to furnish evidence to the Board of
sufficient tax payments and stamp purchases to cover cigarettes which were sold, used, stored, received,
purchased or possessed by him, the prima facie presumption shall arise that such cigarettes were
received, sold, used, stored, purchased or possessed by him without the proper tax having been paid. The
Board shall, from the results of such examination and audit based upon such direct or indirect
information available, assess the tax due and unpaid and impose a penalty of ten (10) percent and
interest of ton percent per annum of the gross tax due.
(d) When any dealer or other person liable for the tax files a false or fraudulent report or
fails to file a report or fails to perform any act or performs any act to evade payment of the tax, the
Board shall administratively assess the tax due and unpaid and impose a penalty of fifty (50) percent and
intorest of ten percent per annum of the gross tax due.
(e) The dealer or other person liable for the tax shall be notified by certified mail of such
deficiency and such tax, penalty and intorest assessed shall be due and payable within ten (10) days after
notice of such deficiency has been issued. Every dealer or other person liable for the tax shall examine
each package of cigarettes to ensure that the Board stamp has been affixed thereto prior to offering them
for sale.
(f) Any dealer or other person liable for the tax who shall receive cigarettes not bearing the
Board stamp shall, within one hour of receipt of such cigarettes, commence and with all reasonable
diligence continue to affix the Board stamp to each and every package of cigarettes until all unstamped
packages of cigarettes have been stamped and before offering such cigarettes for sale. Any dealer or other
person liable for the tax who has notified the Board that he is engaged in interstate or intrastato business
shall be permitted to set aside such part of his stock as may be legally kept for the conduct of such
interstate or intrastato business (that is, cigarettes held for sale outside the jurisdiction of the Board)
without affixing the stamps required by this Article. Any such interstate or intrastato stock shall be kept
entirely separate and apart from the Board-stamped stock, in such a manner as to prevent the
commingling of the interstate or intrastate stock with the Board stock. Any dealer or other person liable
for the tax found to have had untaxed cigarettes which have been lost, whether by negligence, theft, or
any other unaccountable loss, shall be liable for and shall pay the tax due thereon.
(g) It shall also be the duty of each dealer or other person liable for the tax and he is hereby
required to maintain and keep for a period of three (3) years, not including the current calendar year,
records of cigarettes received, sold, stored, possessed, transferred or handled by him in any manner,
whatsoever, whether the same were stamped or unstamped, to make all such records available for audit,
inspection and examination and to make available at all reasonable times the means, facilities and
opportunity for making such audit, inspection or examination upon demand of the Board.
Section 17-150. Registered Agents.
(a) Any dealer or other person liable for the tax who shall sell, use, store, possess, distribute
or transport cigarettes within or into the town shall first make application to the Board to qualify as a
registered agent. Such application blank, which shall be supplied upon request, shall require such
information relative to the nature of the business engaged in by said applicant as the Board deems
necessary. Such applicant shall provide a surety bond to the Board of one hundred fifty (150) percent
of his average monthly tax liability or fifty thousand dollars ($50,000.00), whichever is less, with a surety
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company authorized to do business in the State of Virginia. Such bond shall be so written that, on timely
payment of the premium thereon, it shall continue in force from year-to-year. Any applicant whose place
of business is outside the town shall automatically, by filing his application, submit himself to the Board's
legal jurisdiction and appoint the Administrator for the Board as his agent for any service of lawful
process.
executed,
purchase,
cigarettes.
Upon receipt of the properly completed application, and the required surety bond
the Board shall issue to said applicant a permit to qualify him as a registered agent to
sell, use, store, possess, distribute or transport within or into the town, Board-stamped
(b) Registered agents shall agree to the reporting and payment requirements placed upon him
by this Article and the rules and regulations as from time-to-time may be promulgated by the Board.
In his reporting and payment of the tax, the registered agent shall be allowed a discount, as the Board
may determine not to exceed .0175 cents per carton sold or delivered by him. When any registered
agent's monthly report and payment of the tax is not received within the dates prescribed, the Board
shall disallow any discount taken up to a maximum amount of five hundred dollars ($500.00), and shall
impose a late reporting penalty of ten (10) percent of the gross tax due or ten dollars ($10.00), whichever
is greater, but in no event more than five hundred dollars ($500.00). The Board may also require such
registered agent to provide proof that he has complied with all applicable State laws to legally conduct
such business and to file financial statements showing all assets and liabilities. The Board may revoke
any registered agent's permit if such bond, as required, is impaired for any reason.
(c) After adoption of this Article, dealers or other persons liable for that tax who shall sell,
use, store, possess, distribute or transport tobacco products within or into the town shall be allowed thirty
(30) days to become qualified as a registered agent.
Section 17-151. Notice of Intention by Retail Dealers.
(a) Retail dealers who shall sell, offer for sale, store, possess, distribute, purchase, receive or
transport cigarettes in or into the town shall notify the Board, in writing, of the supplier of such
cigarettes and the name and address and the Virginia Retail Sales and Use Certificate of Registration
number for each separate place of business. Possession of a Virginia State Retail Sales and Use Tax
Certificate and a Virginia State Retail Tobacco License and, where applicable, a retail business license
issued by the town for each separate place of business by a retail dealer shall be considered sufficient
written notification to the Board.
(b) No retail dealer, as defined herein, who shall have complied with the provisions of the
Article and who purchases only tax-paid Board-stamped cigarettes for each separate place of business
shall be required to qualify as a registered agent.
Section 17-152. Sale of Cigarette in Vending Machines~ Contraband.
(a) Any cigarettes placed in any coin-operated vending machine shall be presumed for sale
within the town. Any vending machine located within the town containing cigarettes placed so as to not
allow visual inspection of the Board stamp through the viewing area as provided for the vending machine
manufacturer shall be in violation of this Article.
(b) Any cigarettes, coin-operated vending machines, counterfeit stamps, or other property
found in violation of this Article shall be declared contraband goods and may be seized by the Board.
In addition to any tax due, the dealer or other person liable for the tax possessing such untaxed cigarettes
shall be subject to civil and criminal penalties herein provided.
(c) In lieu of seizure, the Board may seal such vending machines to prevent continued illegal
sale or removal of such cigarettes. The removal of such seal from a vending machine by any
unauthorized person shall be a violation of this Article. Nothing in this Article shall prevent the seizure
of any vending machine at any time after it is sealed.
(d) All cigarette vending machines shall be plainly marked with the name, address and
telephone number of the owner of said machine.
Section 17-153. Illegal Acts.
(a)
the tax:
It shall be unlawful and a violation of the Al~icle for any dealer or other person liable for
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(1) To perform any act or fail to perform any act for the purpose of evading the
payment of any tax imposed by this Article or of any part thereof, or to fail or refuse to perform any of
the duties imposed under him under the provisions of the Article or to fall or refuse to obey any lawful
order which may be issued under this Article; or
(2) To falsely or fraudulently make, or cause to be made, any invoices or reports, or
to falsely or fraudulently forge, alter or counterfeit any stamp, or to procure or cause to be made, forged,
altered or counterfeited any such stamp, or knowingly and willfully to alter, publish, pass or tender as
true any false, altered, forged or counterfeited stamp or stamps; or
(3) To sell, offer for sale, or authorize or approve the sale of any cigarettes upon
which the Board stamp has not been alYLxed; or
(4) To possess, store, use authorize or approve the possession, storage or use of any
cigarettes in quantities of more than sixty (60) packages upon which the Board stamp has not been
affixed; or
(5) To transport, authorize or approve the transportation of any cigarettes in
quantifies of more than sixty (60) packages into or within the town upon which the Board stamp has not
been affixed, if they are:
(a) Not accompanied by a bill of lading or other document indicating the true
name and address of the consignor or seller and the consignee or purchaser and the brands and quantity
of cigarettes transported; or
Co) Accompanied by a bill of lading or other document which is false or
fraudulent in whole or part; or
(c) Accompanied by a bill of lading or other document indicating-.
(i) A consignee or purchaser in another state or the District of
Columbia who is not authorized by the law of such other jurisdiction to receive or possess such tobacco
products on which the taxes imposed by such other jurisdiction have not been paid unless the tax on the
jurisdiction of destination has been paid and said cigarettes bear the tax stamps of the jurisdiction; or
(ii) A consignee or purchaser in the Commonwealth of Virginia but
outside the taxing jurisdiction who does not possess a Virginia Sales and Use Tax Certificate, a Virginia
retail tobacco license and, where applicable, or a business license and a retail tobacco license issued by
the local jurisdiction of destination; or
(6) To reuse or refill with cigarettes any package from which cigarettes have been
removed, for which the tax imposed has been theretofore paid; or
(7) to remove from any package any stamp with intent to use or cause the same to
be used after same has already been used or to buy, sell, or offer for sale or give away any used, removed,
altered or restored stamps to any person, or to reuse any stamp which had therefore been used for
evidence of the payment of any tax prescribed by this Article or to sell, or offer to sell, any stamp
provided for herein.
Section 17-154. Jeopardy Assessment.
If the Board determines that the collection of any tax or any amount of tax required to be
collected and paid under this Article will be jeopardized by delay, the Board shall make an assessment
of the tax or amount of tax required to be collected and shall mall or issue a notice of such assessment
to the taxpayer together with a demand for immediate payment of the tax or of the deficiency in tax
declared to be in jeopardy including penalfies and interest. In the case of a current period, for which the
tax is in jeopardy, the Board may declare the taxable period of the taxpayer immediately terminated and
shall cause notice of such finding and declaration to be mailed or issued to the taxpayer together with
a demand for immediate payment of the tax based on the period declared terminated and such tax shall
be immediately due and payable, whether or not the terms otherwise allowed by this Article for filing
a return and paying the l~x has expired.
Section 17-155. Erroneous Assessment
Notices and Hearing~ in the Event of Sealing of Vending Machines or Seizure of Contraband
Property.
(a) Any person assessed by the Board with a cigarette tax, penalties :.,::ri interest or any
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person whose cigarettes, vending machines and other property have been sealed or seized under processes
of this Article who has been aggrieved by such assessment, seizure, or sealing may file a request for a
hearing before the Board for a correction of such assessment and the return of such property seized or
sealed.
(b) Where holders of property interest in cigarettes, vending machines or other property are
know at time of seizure or sealing, notice of seizure or sealing shall be sent to them by certified
mail within twenty-four (24) hours. Where such holders of property interests are unknown at time of
seizure or sealing, it shall be sufficient notice to such unknown interest holders to post such notice to a
door or wall of the room or building which contained such seized or sealed property. Any such notice
of seizure
or sealing shall include procedures for an administrative hearing for return of such property seized or
sealed as well as affirmative defenses set forth in this section which may be asserted.
(c) Such hearing shall be requested within ten (10) days of the notice of such assessment,
seizure, or sealing and shall set forth the reasons why said tax, penalties and interest and cigarettes,
vending machines or other property should be returned or released. Within five (5) days after receipt
of such hearing request the Board shall notify the petitioner by certified mail of a date and time for the
informal presentation of evidence at a hearing to be held within fifteen (15) days of the date notification
is mailed. Any such request for hearing shall be denied if the assessed tax, penalties and interest has
not been paid as required or if the request is received more than ten (10) days from first notice to the
petitioner of such seizure or sealing. Within five (5) days after the hearing, the Board shall notify the
petitioner, by registered mail, whether his request for a correction has been granted or refused.
(d) Appropriate relief shall be given by the Board if it is proven by the preponderance of the
evidence that the illegal sale or use of such seized cigarettes or vending machine or other property was
not intentional on the part of the petitioner, and that said seized cigarettes were in the possession of a
person other than the petitioner without the petitioner's consent at the time said cigarettes, vending
machines or other property were seized or sealed or that petitioner was authorized to possess such
untaxed cigarettes. If the Board is satisfied that the tax was erroneously assessed, it shall refund the
amount erroneously assessed together with any interest and penalties paid thereon and shall return any
cigarettes, vending machines or other property seized or sealed to the petitioner, any petitioner who is
unsatisfied with the written decision of the Board may within thirty (30) days of the date of said decision,
appeal such decision to the appropriate Court in the jurisdiction where the seizure or sealing occurred.
Section 17-156. Disposal of Seized Property.
Any seized and confiscated cigarettes, vending machines or other property used in the furtherance
of any illegal evasion of the tax may be disposed of by sale or other method deemed appropriate by the
Board after any petitioner has exhausted all administrative appeal procedures. No credit from any sale
of cigarettes, vending machines, or other property seized shall be allowed toward any tax and penalties
assessed.
Section 17-157. Extensions.
The Board, upon a finding of good cause may grant an extension of time to file a tax report upon
written application therefore, until the end of the calendar or fiscal month in which any tax report is due
hereunder, or for a period not exceeding thi~q:y (30) days. In no case shall a request for an extension of
time to file a tax report be granted by the Board when such request is not received within the due date
for filing such tax report. No interest or penalty shall be charged, assessed or collected by reason of the
granting of such an extension. Where such extension is granted beyond the end of the calendar or fiscal
month in which any tax report is due, hereunder, interest on the tax at a rate of ten percent per annum
shall be charged.
Section 17-158. Penal .ty for Violation of Article.
Any persons violating any of the provisions of this Article shall be guilty of a Class I misdemeanor
and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars
($1,000.00) or imprisonment of not more than twelve (12) months or by both such fine and
imprisonment. Such fine and/or imprisonment shall not relieve any such person from the payment of
any tax, penalty or interest imposed by this Article.
Section 17-159. Each Violation a Separate Offense.
The sale of any quantity or the use, possession, storage or transportation of more than sixty (60)
packages of cigarettes upon which the .~3~ard stamp has not been afl'ged shall be and constitute a
separate violation. Each continuing day of violation shall be deemed to constitute a separate offense.
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Section 17-160. Severability.
If any section, phrase, or part of this Article should for any reason be held invalid by a Court of
competent jurisdiction, such decision shall not affect the remainder of the Article, and every remaining
section, clause, phrase or part thereof shall continue in full force and effect.
This ordinance shall be in effect upon its passage.
DISCUSSION
Mr. Webb asked what the status of Loudoun County's cigarette tax is. Mr. Brown stated that the
Governor has not signed it as of yet. Mr. Wehb stated that ff this tax is increased the town is not helping
the merchants. Mr. Brown stated that in order to provide the services that the merchants expect and
have received in the past the town needs to ensure that all sources of revenue are explored. Mr. Webb
asked that the increase be reduced to $.10 cent and only if the county enacts the cigarette tax.
Mr. Kimball asked, if the increase is not adopted what would happen to the town's budget? Mr. Brown
stated that the budget is balanced based on the adoption of legislation items 9. (c), (d), and (e).
Mr. Clem stated that the increase could hav~ been done in volume as opposed to the $.15 cents. If the
town keeps the tax at five cents it would bring people into town to purchase additional items other then
cigarettes. He stated that he would compromise and support a $.10 cent increase.
Mr. Lovin stated that he would support the $.15 cent increase. A $.15 cent cigarette tax provides the
town with $360,000 which represents two and one half cents on the real estate tax rate.
Mayor Sevila stated that the Council asked staff to find ways of helping the Council meet the financial
burdens of running a town by minimizing the impact on the real property tax. This is an example of
one of those ways. The new Council, in the event revenue projections in other areas are understated and
this $.15 cent cigarette tax is not necessary it can be repealed or adjusted downward. But in doing so,
it would have the companion responsibility of finding other revenues to provide the $360,000 that this
tax would generate or the companion responsibility of finding $360,000 in services that could be cut from
the budget. After 9 months of meeting, having considered every aspect of this budget, this Council has
failed to do that.
VOTE
Aye: Councilmembers Bange, Forester, Kimball, Lovin, Mayor Sevila
Nay: Councilmembers Clem and Webb
9. (f)
MOTION
On motion of Mr. Kimball, seconded by Mr. Clem, the following ordinance was proposed and adopted.
92-0-14 - ORDINANCE - AMENDING SECTION 12.1-34(e) OF THE TOWN CODE REGARDING SICK
LEAVE POLICY
WHEREAS, the town's Personnel Manual provides for payment of 25% of unused extended sick
leave for retirees; and
WHEREAS, partial payment for unused sick leave contributes to employee productivity by
providing an incentive to report to work and not abuse sick leave; and
WHEREAS, to ensure full productivity, payment should be made for 25% of all sick leave credit
to avoid the potential for abuse during the last few months before retirement.
THEREFORE, ORDAINED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. Section 12.1-34(e) of the Town Code is amended to read as follows:
Sec. 12.1-34(e). Sick Leave.
(e) Employees who retire from the Town services shall be paid for 25-percent of their unused
sick leave credits accrued during town employment.
SECTION II. This ordinance shall be effective April 30, 1992.
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VOTE
Aye:
Nay:
9. (g), (i)
MOTION
Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
None
On motion of Ms. Bange, seconded by Mr. Kimball, these items were referred to the June 2, 1992,
Administration and Public Works Committee for further discussion and consideration.
VOTE
Aye: Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
Nay: None
9.
MOTION
On motion of Mr. Kimball, seconded by Mr. Lovin, the following resolution was proposed and adopted.
92-64 o RESOLUTION - APPROVING THE BUDGET AND MAKING APPROPRIATIONS FOR THE
FISCAL YEAR ENDING JUNE 30, 1993
WHEREAS, the budget and tax rates for the fiscal year ending June 30, 1993, have been
presented and reviewed by this Council in accordance with Section 4-2.1:1(b) of the Town Code and
Section 15.1-160 of the 1950 Code of Virginia, as amended; and
WHEREAS, a public hearing on the proposed budget and tax rates was held on April 14, 1992;
and
WHEREAS, the town manager prepared and submitted by memorandum dated April 24, 1992,
a list of adjustments to the proposed budget for the General Fund for the fiscal year ending June 30,
1993; and
WHEREAS, this Council has directed the town manager to adjust the proposed budget in
accordance with the budget adjustments proposed; and
WHEREAS, the tax rates for 1992 real estate and personal property taxes will be $0.205 and
$1.00 respectively, per $100 of assessed valuation; and
WHEREAS, the tax rate for cigarettes purchased in the town will be $0.15 per pack effective July
1, 1992; and
WHEREAS, the vehicle license fee for automobiles and trucks will be $25.00 per year effective
July 1, 1992.
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. The manager's proposed budget as amended to include the adjustments proposed
in the General Fund is adopted and appropriations are made for the fiscal year ending June 30, 1993,
in the amounts shown to the categories and accounts for the general, utility, airport and capital project
funds, provided that capital project funds appropriations remain in effect until the projects are completed.
SECTION II. The manager is authorized to transfer appropriations made herein to accounts
within the same departmental budget as long as the total appropriation for the departments is not
adjusted.
DISCUSSION
Mr. Kimball stated that he has witnessed and participated in four budget presentations and this year
there has been a marked difference, for the good, in the attitude and coopera(ion of the town manager
and staff and the willingness they have shown to discuss this budget line item by line item. In his view,
this is the first one that has had an indebt review by the Town Ccancil He congratulated Mr. Brown
and his staff for their willingness to work with the Council and he thanked this Council for their
willingness to be present at the many meetings on the budget this year. It is a very positive thing for
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the community.
Mr. Lovin stated that he also has participated in numerous budget adoptions. The interest in the budget
by the citizens of Leesburg has improved. The budget is the primary responsibility of the members of
Council. To provide the town with a document in order to run the town and prioritize its spendings.
He stated that he is glad that he is not hostage to any election regarding this election. He will support
the budget.
Mr. Clem stated that he did not think this budget was political. It boils down to cleaning up your own
house and working from an agenda. He stated that he would support the $.10 cent cigarette tax increase
but would not support $.15 cent. He said it should be done on volume in hopes that people would come
into town and shop, eat and buy other goods. This is his way of working with the budget as opposed to
sticking out revenue enhancers. It is time we think about long range. This was a hard fought budget
season. He concurred with Mr. Kimball, in that, this was the best budget process that he has
participated in and he would expect the Council to improve it next year.
Mrs. Forester stated that she also recalls her first budget process which was the year when an entire pay
reclassification was done for every employee of the town. There are some people who are now telling us
that our pay scale is top heavy - those same people who adopted that pay and reclassification in 1988.
She stated that she supports the proposed budget. It has received the review that it deserves. She
thanked Mr. Brown and his staff.
Mayor Sevila stated that he will also vote to support the budget. He stated that it is the responsibility
of every elected official to become intimately acquainted with the budget process because it is among the
most important things that elected officials are called on to do and that is to collect and spend the funds
of their fellow tax payers and citizens. This process has also been different, in that, this is the first
budget that had to be debated and adopted prior to the election. In the past, local elections are
comfortably behind by one or two or more weeks before the town has a public hearing on the budget.
Mayor Sevila stated that this has led to the politicalization of the budget process. He thanked Mr. Brown
and his staff for the remarkable job on the budget.
VOTE
Aye: Councilmembers Bange, Forester, Kimball, Lovin, Mayor Sevila
Nay: Councilmembers Clem and Webb
9. (k), (1), (m). (n), (o)
MOTION
On motion of Mr. Clem, seconded by Mr. Lovin, the following resolutions were proposed as consent items
and unanimously adopted.
92-65 - RESOLUTION - AUTHORIZING A TIME EXTENSION FOR COMPLETION OF PUBLIC
IMPROVEMENTS FOR THE ROSEMEADE SUBDMSION
WHEREAS, the Sunset Hill Corporation, the successor to Catoctin Chase Limited Partnership,
the developer of the Rosemeade Subdivision, has not completed all the required public improvements in
accordance with the approved construction drawings and town standards within the two year period
agreed to in the contract for public improvements and the previously approved the time extension thereto
which expires on May 8, 1992; and
WHEREAS, the developer has requested a 30 day time extension to complete the public
improvements; and
WHEREAS, a letter of credit in the initial amount of $610,000.00 from American Security Bank
was provided by the developer to guarantee the installation of public improvements in the Rosemeade
Subdivision and this letter of credit was reduced to the current amount of $98,518.00 by Resolutions No.
89-75, and No. 91-278. This letter of credit automatically renews for six month periods and is currently
in effect until September 30, 1992; and
WHEREAS, the completion of the public improvements to the satisfaction of the town and the
residents of Rosemeade is a high priority of the town and the developer should proceed with completion
of the work as soon as possible.
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. A time extension to June 8, 1992 for completion of the public improvement is
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approved.
SECTION II. All conditions established in Resolution Number 91-278 which are not hereby
amended remain in full force and effect.
92-66 - RESOLUTION - ACCEPTING PUBLIC IMPROVEMENTS, RELEASING THE PERFORMANCE
GUARANTEE AND APPROVING A MAINTENANCE GUARANTEE FOR PUBLIC
IMPROVEMENTS AT THE EXETER BIG SPRINGS PUMP STATION
WHEREAS, Richmond American Homes, the developer of the Exeter Big Springs Pump Station,
has completed the public improvements in accordance with approved plans and town standards, and these
have been inspected and approved.
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia as follows:
SECTION I. The irrevocable letter of credit from First American Bank in the amount of
$50,868.00 is released, and a new security in a form approved by the town attorney for a maintenance
guarantee in the amount of $12,717.00 is approved, and shall be in effect for a period of one year from
this date.
SECTION II. This release is contingent upon delivery of a properly executed instrument
conveying unto the town all such improvements and easements free of any liens or charges.
92-67 - RESOLUTION - SETTING A PUBLIC HEARING FOR THE IMPOSITION OF NEW WATER
AND SEWER FEES
WHEREAS, on February 27, 1991, the town entered into a contract with the consulting firm of
Deloitte & Touche for the purpose of conducting a comprehensive water and wastewater cost of service
study and rate design for the town's utility system; and
WHEREAS, on September 17, 1991, the Council received a final report of the utility rate study
conducted by Deloitte & Touche and agreed that Alternative III of the report was most acceptable to the
Council which recommends rate increases in water and sewer user fees, availability fees and other utility
system fees and charges beginning in fiscal year 1992 through 1996; and
WHEREAS, the proposed budget for the period ending June 30, 1993, recommends a 25%
increase in water and sewer rates and a 4.5% increase in availability fees based on the Deloitte & Touche
study; and
WHEREAS, in accordance with Virginia Code Section 15.1-29.14 before the fees recommended
can be implemented a public hearing must first be held; and
WHEREAS, May 26, 1992, at 7:30 P.M. in the Town Council Chambers has been designated as
the date, time and place for such public hearing to consider proposed utility rate increases for the period
ending June 30, 1993.
THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia that a public
hearing will be held on May 26, 1992, at 7:30 P.M. in the Town Council Chambers for the purpose of
considering increases in the town's water and sewer rates for the fiscal year ending June 30, 1993.
92-68 - RESOLUTION - SETTING A PUBLIC HEARING FOR THE ISSUANCE OF UTILITY SYSTEM
REVENUE BONDS
WHEREAS, the Council of the Town of Leesburg has determined the need to expand and
upgrade its wastewater treatment facility from a capacity of 2.5 MGD (million gallons per day) to a
capacity of 4.85 MGD; and
WHEREAS, the engineering firm of CH2M Hill has been retained by the Council to prepare final
engineering plans and construction drawings for this project; and
WHEREAS, to provide funding for the estimated $22.5 million cost of this project, the Council
on April 14, 1992, selected the investment banking firm of Alex Brown & Sons, Inc. to serve the town
as senior managing underwriter for a proposed revenue bond issue not to exceed $25 million; and
WHEREAS, due to favorable conditions that now exist in the financial market place for tax
exempt municipal debt issues, it is in the town's best interest to proceed at this time with the issuance
of utility system revenue bonds to fund the cost of the project.
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THEREFORE, RESOLVED by the Council of the Town of Leesburg in Virginia that a public
hearing is hereby set for May 26, 1992, at 7:30 P.M. in the Town Council Chambers in accordance with
Section 15.1-227.8 of the 1950 Code of Virginia, as amended, for the purpose of issuing up to $25 million
in utility system revenue bonds.
92-69 - RESOLUTION - AUTHORIZING A NOTICE OF PUBLIC HEARING FOR SPECIAL
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EXCEPTION APPLICATION #SE-92-02 BY FIRST VIRGINIA BANK
RESOLVED by the Council of the Town of Leesburg in Virginia as follows:
A Notice of Public Hearing to consider Special Exception Application #SE-92-02 by First Virginia
Bank shall be published in the Loudoun Times-Mirror on May 27, 1992 and June 3, 1992, for public
hearing on Tuesday, June 9, 1992 in the Council Chambers of the Government Center at 25 West Market
Street. Leesburg, Virginia.
VOTE
Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
None
ADJOURNMENT
MOTION
On motion of Mr. Kimball, seconded by Mr. Clem, the meeting was adjourned at 11:15 p.m.
VOTE
Councilmembers Bange, Clem, Forester, Kimball, Lovin, Webb and Mayor Sevila.
None
Robert E. Sevila, Mayor
Town of Leesburg
Clerk of Council