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HomeMy Public PortalAbout2010_tcmin1109COUNCIL MEETING November 9, 2010 Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Umstattd presiding. Council Members Present: Thomas Dunn, II, David Butler, Katie Sheldon Hammler, Fernando "Marty" Martinez, Kenneth "Ken" Reid, Kevin Wright and Mayor Umstattd. Council Members Absent: Council Member Dunn arrived at 7:57 p.m. Staff Present: Town Manager John Wells, Town Attorney Jeanette Irby, Deputy Town Manager Kaj Dentler, Director of Public Works Tom Mason, Director of Planning and Zoning Susan Berry Hill, Deputy Director of Planning and Zoning Brian Boucher, Chief of Police Joseph Price, Director of Parks and Recreation Richard Williams, Communications Manager Betsy Fields, Senior Planner Michael Watkins, Business Retention Coordinator Debi Parry and Clerk of Council Lee Ann Green AGENDA ITEMS 1. CALL TO ORDER 2. INVOCATION was led by Mayor Umstattd 3. SALUTE TO THE FLAG was led by Vice Mayor Wright 4. ROLL CALL showing Council Member Dunn arriving at 7:57 p.m. 5. MINUTES a. Work Session Minutes of October 25, 2010 On a motion by Council Member Reid, seconded by Council Member Butler, the work session minutes were passed 6 -0 -1 (Dunn absent). b. Regular Session Minutes of October 26, 2010 On a motion by Council Member Butler, seconded by Council Member Reid, the minutes were passed 5 -0 -1 -1 (Martinez abstaining /Dunn absent). 6. ADOPTING THE MEETING AGENDA (Amendments and Deletions) Council Member Martinez made a motion to adopt the meeting agenda as presented. It was seconded by Vice Mayor Wright. The motion to adopt the meeting agenda passed by the following vote: Aye: Butler, Hammler, Martinez, Reid, Wright, and Mayor Umstattd Nay: None Vote: 6 -0 -1 (Dunn absent) 7. PRESENTATIONS a. Certificates of Appreciation Leesburg Poker Run On a motion by Council Member Hammler, seconded by Council Member Butler, the following volunteers /contributors to the Leesburg Poker Run benefiting the Special Olympics were recognized: 1 11 <z g c, COUNCIL MEETING Anita's Restaurant B &M Motorcars Double D Towing Hogan Sons Tires Spanky's Shenanigans Wachovia Bank Tyler Wolff Donna Wolff Delcie McCartney Kristen McCartney J.B. Anderson 8. PETITIONERS The Petitioners section was opened at 7:48 p.m. November 9, 2010 Famous Dave's Barbeque Engle, Paxson Hawthorne Insurance Ashburn Towing Printing Productions Rivercreek Towing Recovery Matthew Wolff Glenn Reitz MPO Wolff MPO McCartney Andy McCartney Leesburg Citizen's Support Team b. Leesburg Biz Buzz Webpage Presentation Ara Bagdasarian, Chairperson of the Leesburg Economic Development Commission unveiled the new Biz Buzz webpage, an initiative to showcase new and upcoming business news. He stated the EDC will also be publishing a newsletter to keep the public updated on economic development news. Council Member Hammler congratulated Mr. Bagdasarian on his winning the Small Business of the Year award. Terry Elvers, 23 Linden Hill Way, thanked Council for their commitment to Linden Hill. He stated that Council is looking out for the needs of the Linden Hill community and they are appreciative. He congratulated the Town Attorney on winning the water rate appeal. He stated about a year ago, his water rates were about $100 for the quarter. Further, he added that he does not have a sprinkler system and his rates have gone up to a high of $350. He expressed his hope that there will be some relief to the town residents as a result of the Supreme Court ruling. Dinah Gallahan, stated she lives in Country Club Green condominiums. She commented that a budget plan or monthly water and sewer billing would be fabulous. She stated, with respect to the T- Mobile application, that adding an antenna to the existing tower would be adding insult to injury. She expressed concern about future expansion and stated it will open doors to future applications. She asked that Council not allow this installation as there are other suitable locations for this antenna. The Petitioners section was closed at 7:56 p.m. 9. APPROVAL OF THE CONSENT AGENDA On a motion by Council Member Martinez, seconded by Vice Mayor Wright, the following consent agenda was proposed: 21 r) agc COUNCIL MEETING November 9, 2010 a. Memorandum of Agreement Between the Environmental Advisory Commission and Leesburg Parks and Recreation Department Regarding a Rain Garden at Freedom Park at No Cost to the Town MOTION 2010 -012 I move to authorize the Director of Parks and Recreation to enter into a Memorandum of Agreement with the Environmental Advisory Commission and the Loudoun Wildlife Conservancy for the installation and maintenance of a rain garden at Freedom Park at no cost to the town b. FY 2011 -2012 Community Development Block Grant (CDBG) Application RESOLUTION 2010 -145 Endorsing the FY 2011 -2012 Community Development Block Grant Application for the Plaza Street Sidewalk Project c. Making Appointments to the Utility Rate Advisory Committee (URAC) RESOLUTION 2010 -142 Making Appointments to the Utility Rate Advisory Committee The Consent Agenda was approved by the following vote: Aye: Butler, Dunn, Hammler, Martinez, Reid, Wright, and Mayor Umstattd Nay: None Vote: 7 -0 10. PUBLIC HEARINGS a. Appeal of Planning Commission Permit TLCP 2010 -0002 T- Mobile Telecommunication Antenna at Westpark The public hearing was opened at 7:58 p.m. Michael Watkins this is an appeal of the Planning Commission's denial of Commission Permit TLCP 2010 -0002 T- Mobile Telecommunications Antenna at Westpark. He stated the grounds for a commission permit approval are such that the proposal meets with the goals and objectives of the Town Plan. He stated the Planning Commission exercised their discretion and denied the commission permit on the grounds that they felt it was a change in the designated land use of the Town Plan designating the area as Community Office. Council Member Dunn questioned how the neighborhood feels about the existing towers. Mr. Watkins stated from staff's perspective, the focus is on the use itself, not the location of the pole. He stated the zoning ordinance has different 3 1 1'a COUNCIL MEETING November 9, 2010 classification of uses, and telecommunications fall in the spectrum of community office uses. Mayor Umstattd noted the Town Attorney has ruled the two public hearings can be combined. b. Special Exception TLSE 2010 -0005 T- Mobile Communication Antenna at Westpark The public hearing was opened at 8:30 p.m. Mr. Watkins stated in addition to the appeal of the commission permit denial, there is a special exception application for a telecommunications antenna to be mounted on the existing monopole. He stated the antennas will be attached to a platform that is designed and constructed by Dominion Virginia Power and is required by them. He noted that similar a special exception application and a commission permit were approved for an antenna array near the Village at Leesburg. Mr. Watkins noted in terms of the ground equipment that will be installed, the electrical cabinetry will be located within a board on board fence enclosure that is approximately eight feet in height served by a driveway from Clubhouse Drive. He noted that of the surrounding Dominion Virginia Power poles, only one lies in a zoning district that permits this type use. He stated the one other pole that is in a district that will permit this use, is not located to sufficiently meet the needs of the applicant. He reviewed the actions of the Planning Commission. Ms. Irby stated it is her understanding the Planning Commission was given a presentation by staff similar to what Council is receiving this evening. Further, she stated they were instructed as to the applicable law and a memo was provided to Council as well as to the Planning Commission. She stated the Council may be able to consider adverse impact on the adjacent neighborhood; however, it is in contradiction to the Zoning Ordinance which encourages the co- location of these facilities. She stated this is not something that could have been given that much weight with respect to the denial of this application. She stated she does not believe an alternate location that would suit the applicant's needs without impact to neighboring properties is possible. Mr. Watkins stated the criteria the Planning Commission used to deny the special exception application is one which the staff does not have the subjectivity to opine on. He stated staff has looked at the requirements of the ordinance and in staffs opinion the applicant has met the requirements of the ordinance. However, in an effort to provide Council with additional information, the Planning Commission did ask that staff recommend consideration of the alternate location. He noted the measurement from the closest residence to the proposed site is over 700 linear feet and the alternate location in Izaak Walton park has a distance of just over 400 linear feet to the closest residence. 4 1 r g e COUNCIL MEETING November 9, 2010 Mr. Watkins stated that staff recommends approval of the commission permit, TLCP 2010 -0002 and approval of the special exception application, TLSE 2010 -0005 subject to the conditions outlined in the staff report. Council Member Dunn questioned what the Town Plan includes regarding undergrounding utility lines. Mr. Watkins stated this is also part of the Community Facilities and has a Goal and Objectives of trying to underground those utilities as well. Council Member Dunn stated if the ultimate goal is to underground the power lines and there are other uses on the pole, it might slow down the ability to achieve that goal. He questioned the length of the legal agreement between Dominion Power and T- Mobile. Mr. Watkins stated because it is a private agreement between two parties, it was not be part of staff's consideration of the application. Council Member Reid questioned how far the 300 square foot ground equipment enclosure would be from the nearest single family home. Mr. Watkins stated it is 740 linear feet from the nearest home, which is on Tuscarora Drive and will be completely covered by fencing. He noted that Dominion Power has a list of specific materials that are allowed for vegetative screening. Council Member Reid questioned how this can be screened to be more visibly attractive. Mr. Watkins suggested requesting more mature planting materials to ensure a shorter time to maximum height. Council Member Reid stated the implication in the Town Attorney's memo is that if this appeal is denied, the applicant can take the town to court under Federal law. Ms. Irby confirmed this and noted if it is pursued in Federal Court, she is qualified to practice in Alexandria; however, this is a specialized area and outside counsel would be necessary. There was discussion regarding the applicant's avenues for legal redress. Vice Mayor Wright summarized that the commission permit criteria is whether it complies with the Town Plan and the special exception criteria is based on whether the use hinders the use of adjacent properties, traffic impacts, and adverse impact on adjacent properties. 51P<:tge COUNCIL MEETING November 9, 2010 Mr. Watkins stated the Planning Commission came to the opinion, based on public testimony provided, that the cellular antenna use was an introduction of a use that would not normally be associated with this land use designation of Community Office. He stated the finding for the special exception was that there would be adverse impact. Vice Mayor Wright questioned what the zoning is at the location of the other antenna near Village at Leesburg that went through the same process as well as the one located behind the Bloom on Fort Evans Road. Mr. Watkins stated the one located near Village at Leesburg is located in the I -1 with a Town Plan designation of Regional Office. He stated he will find out the information for the other location. Council Member Martinez asked for clarification of the screening material around the ground based equipment enclosure. Mr. Watkins stated they are hollies. Council Member Martinez asked for the difference in elevation between the location of the monopole and the nearest single family home for both the proposed location and the alternate location. Mr. Watkins stated that information is not readily available, but the north side of the bypass is a higher elevation than the south side. Council Member Hammier questioned whether health concerns are a viable cause for denial. Ms. Irby stated that health concerns cannot be considered by Council. She stated the Federal government has opined and done studies stating that health issues cannot be considered with respect to the installation of these facilities. Council Member Hammier questioned the conclusion of the Planning Commission discussion regarding the "sombrero hat" design of the antenna. Mr. Watkins stated this design is a requirement imposed by Dominion Virginia Power so that their personnel can maintain the pole and lines. Council Member Hammier questioned whether there is any possibility of aggregating these poles in one specific area. Further, she questioned whether Council could initiate a zoning ordinance change and it could retroactively impact the placement of this facility on the existing pole. Ms. Irby stated this question would need to be addressed with the applicant as to whether or not it would service their area. She stated that zoning 6 1 r7 <t g COUNCIL MEETING November 9, 2010 ordinances are prospective only and Council could not go back and impose retroactively imposing the new regulations on the applicant. She stated this would apply to any applications that are currently in the pipeline. Council Member Hammler questioned whether any neighboring jurisdictions have attempted to deny this type of application and what the conclusion has been in those cases. Ms. Irby stated some localities have denied applications and if they have not met the criteria with respect to not unreasonably discriminating or having the effect of prohibiting the provision of personal wireless services, after legal proceedings have been instituted, they generally have had to settle after a period of time, if they cannot meet the burden. Mr. Watkins stated the application was referred to the County and their response was: "Loudoun County Department of Planning appreciates the opportunity to comment on the applications and takes no position. It does; however, wish to note that similar applications located in the county and outside the Town of Leesburg would be subject to the County Telecommunications Plan that establishes a preference for new telecommunications facilities, such as the proposed T- Mobile antenna, to be co- located on overhead utility transmission line structures and other existing buildings and structures." Mayor Umstattd clarified that that in the Zoning Ordinance, these monopoles are restricted to B -1 and I -1; however, this property is zoned B -3. Mr. Sean Hughes, spoke on behalf of T- Mobile. He addressed the appeal of the commission permit, which is a pretty concise question where only the question of whether the proposed project is in substantial compliance with the Town Plan. He stated the Town Plan's Community Facilities and Service element, Chapter 4 -B specifically encourages co- location on monopoles and existing towers to decrease the number of new poles. Mr. Hughes also stated there was a question concerning what could happen in Federal court. He stated besides counsel fees, there is opportunity under the Federal law section for damages and there is ample case law on that subject. He stated there have been many applications that have been denied for new, tall structures, but it is extremely rare to see denials for placing antennas on existing tall structures. He discussed the details of the application. Further he noted the structures are existing and will remain in place. Mr. Hughes introduced the radio frequency engineer, Mr. Curtis Jews. He stated without this approval, coverage would continue to be less than desirable for the cellular customers. Further, he noted that 60% of wireless calls are made from inside homes and the goal is to be able to provide coverage from inside structures. He admitted a letter into the record from the FAA stating that no lighting would be required on the antenna array. He stated as long as the 7 1 P a g COUNCIL MEETING November 9, 2010 FAA does not require lighting on top of the array, T- Mobile would not install lighting. Council Member Dunn questioned if Dominion Power undergrounds their wires, what will happen to T- Mobile's antenna arrays? Mr. Hughes stated the question calls for quite a bit of speculation. He stated he was not involved with the lease negotiation, but they are typically 30 -50 years in length. He stated his feeling is that if the pole went away, Dominion must have a way to cancel the lease. Council Member Dunn questioned why the alternate location does not suit T- Mobile's needs. Mr. Curtis Jews stated the alternate site will not supply the in- home /building coverage T- Mobile is looking to achieve. Council Member Dunn questioned why the town would want to bring in an additional above ground facility when the goal is to underground the utilities. He stated there is not much of an option here because if this is denied, T- Mobile will take the town to court and probably win. He questioned why it cannot be denied because it does not conform to the goal of undergrounding wires in the Town Plan. Mr. Boucher stated the Town Plan refers to new and existing power lines. He stated all the new subdivisions have undergrounded utilities and the Town Plan speaks more to the type of lines seen downtown. He stated the wireless providers need height to get wider coverage areas so undergrounding this type of facility would not be practical. Council Member Dunn stated the town residents have not gotten used to the poles yet, while the towers over near Village at Leesburg have been present for long time. Council Member Reid asked for information regarding judgments, monetary settlements and damages with respect to denials of these types of applications. Mr. Hughes stated he did not have that type of information. Council Member Reid questioned whether T- Mobile would be willing to come up with larger vegetative screening or a garden to beautify the entrance to the neighborhood. He questioned whether the ground facility will create any type of noise. Mr. Hughes stated they have a lot of flexibility and the only requirement is they comply with Dominion's requirements. He stated there is no sound that 8 1 1' <t g COUNCIL MEETING November 9, 2010 will emanate from the facility and very little traffic will be associated with the ground facility. Vice Mayor Wright questioned the height of the holly trees at installation. Mr. Hughes stated that typically the plantings will be 5 feet tall, but they would be willing to start at a taller height. Council Member Martinez questioned the importance of the in -home coverage that T- Mobile is looking for. Mr. Jews stated T- Mobile is looking for this type of coverage for safety as many people use cellular to place 911 calls in the event of emergency. Council Member Martinez asked for an estimate of how long cellular technology will be used? He stated new technology will probably supersede cellular before a Dominion Power line will be undergrounded. He questioned whether excess bandwidth will be available for sale to other vendors. Mr. Jews stated he cannot give a good answer on that. He stated the band on their antennas is exclusive to T- Mobile. Council Member Hammler questioned what is involved with erecting the antenna, if it is approved. Mr. Hughes stated the construction is performed by Dominion Power. He stated a brand new tower typically takes 4 -6 weeks, but with an existing tower, it is closer to 2 -3 weeks, depending the weather. He confirmed there should be no disruption to the neighborhood. Council Member Hammler questioned whether the rise in cellular usage will be contrary to the agreements that the town has with Comcast. Ms. Irby stated the franchise agreement with Comcast only covers cable television. She stated certainly the franchisees have invested a lot in the cable infrastructure. Council Member Hammler questioned how many customers T- Mobile has in the Leesburg area. Mr. Hughes stated that information is proprietary; however, there is data that speaks to how many dropped calls occur within a recent 12 month period and how many 911 calls are collected by surrounding antennas. He stated the four closest sites had 17,000 911 calls collected and the five closest sites had 123,000 dropped calls over a 12 month period. 9 1 i't COUNCIL MEETING November 9, 2010 Elaine Gladwin, 1012 Rollins Drive, thanked T- Mobile for more details. She stated that Country Club is one of the most beautiful places in Leesburg. She questioned why Izaak Walton park cannot be considered. She stated there are many more people in Country Club that can see this structure than can see the Izaak Walton pole. Mike Goyne, 1014 Rollins Drive, requested that Council be cognizant of the time and energy that this coalition has put into being at the meetings to express their concerns. He stated the residents do not like the power poles. He stated he feels let down by town staff that they are recommending approval after the Planning Commission denied this request. He stated the presentation by T- Mobile has been misleading, full of errors and very sophomoric. He stated he has not seen any good will from T- Mobile and seen a lack of consideration for the Town and its constituents. He stated they are blackmailing the town with the Telecommunications Act of 1996 to get their way without compromise. He stated he would have liked to see a third party to look at their data in terms of coverage. He stated the area where the tower will be located is in an area of good coverage and the only area not covered is outside the town limits in the county. He stated the alternate location is every bit as high as the requested location. He stated the trees are much taller so the tower is naturally shielded and the ground station would be below the level of the Rt. 15 bypass. He stated T- Mobile is not welcome in their community. Ingrid Summa, 110 Governor's Drive, questioned what will prevent other companies from coming in and putting things on top of the towers. She submitted a petition of homeowners on Governors Drive against approval of this application. She stated one of the residents of Governor's Drive is a T- Mobile customer and has never had a dropped call. Stephen Summa, 110 Governor's Drive, stated there is nothing shielding his community from the power pole. He stated the Izaak Walton location can fit the bill for T- Mobile and be less visible to the neighbors. He questioned how T- Mobile will get utilities to the site. Lee Gladwin, 1012 Rollins Drive, stated none of the neighbors want this structure on top of the power pole. He stated no one from T- Mobile asked for input from the community. He stated the town has been given unwarranted assumptions that this is the only location that will work, and the coverage for current and potential customers is necessary. He suggested the town take T- Mobile to court and be a cog in the wheel slowing their progress. Tim Griffin, 914 Chancellor Street, stated the Planning Commission listened objectively to the facts presented by T- Mobile and listened to the resident's many concerns and unanimously voted to deny the commission permit. He urged Council to uphold this decision. He stated regarding the 10 11 .1 COUNCIL MEETING November 9, 2010 special exception application, they did not have prior notice of that application. He stated T- Mobile has not addressed how many subscribers are complaining about poor service in the area that they are talking about. Mayor Umstattd questioned whether the notice given to the residents was adequate. Ms. Irby stated the ad submitted to the newspaper is adequate. She confirmed that both application numbers are contained in the letter. Mr. Watkins stated he has the affidavit of notification and has checked the list of property owners noticed and they are all accounted for. Minu Beshan, 126 Governor's Drive, pleaded to Council regarding the health hazards she feels the community will be exposed to if this antenna is approved. She stated that 33 delegate physicians from seven countries have declared cell phone towers as a health hazard. She stated that there is evidence that electromagnetic radiation from cell phone towers is damaging to human and animal health. She listed possible health effects of cell phone tower radiation and cited the results of some studies including increased incidents of several types of cancer. Peter Lang, Chancellor Street, stated he has a good view of the towers. He stated the towers have a certain symmetry and consistent interpretation of a high technology theme. He stated it is very important to quantify the numbers of people who get service from these proposed antennas as the coverage between the proposed site and the alternate site are not hugely different, yet aesthetically, they are very different. He stated adding the antennas to the top of the towers will ruin the design. Dinah Gallahan, stated dropped 911 calls will be picked up by any tower. She stated some of the dropped calls are in Maryland, not in the area where they want additional coverage. She stated the Planning Commission did a very good job of listening to the public. She questioned who will monitor the installation of the ground facility and the structure. She stated T- Mobile is not interested in seeking public input. Wanda Lackey (Via email): To the Council: Again, I am writing protest to one more item that is threatening my property values, aesthetic value and impacting my health. I am a resident of Country Club Green Condos on Clubhouse Drive, SW. Our community has already had to deal with the eyesore of the Dominion Power. I do not feel it is necessary to once again degrade our community with more of the same being proposed by T- Mobile. I pay my taxes, give back to the community as a volunteer EMT to not one, but two stations in Loudoun County. I feel I have the right to strongly protest this proposal. It has already been addressed by the Planning Commission, whom I also wrote. So, why the necessary addressing of the Town Council. Are you seriously 11 1 Page COUNCIL MEETING November 9, 2010 considering this? Why is our community always being threatened with negative effects that we are not soliciting. Unfortunately, I cannot attend tonight's meeting due to the fact that I am volunteering 12 hours at Lovettsville Fire and Rescue. Mr. Summa stated the site is not in the Historic District as T- Mobile represented. Mayor Umstattd stated the H -2 corridor is an overlay district, but is not historic. The public hearing was closed at 9:55 p.m. Mayor Umstattd questioned how many antennas Verizon and AT &T have throughout town. This information was not available. Mayor Umstattd expressed concern that out west, there are not nearly as many cell phone towers. She questioned why T- Mobile needs so many antennas. Mr. Jews stated it depends on the morphology of the area, i.e. whether the area is suburban where there are a lot of buildings, or rural morphology where there are sparse buildings. He stated in the suburban areas, T- Mobile has a difficult time getting the height they need with the average height being between 150 to 120 feet. He stated in rural areas, they are often able to get 200 -250 feet high which covers a larger radius. He stated terrain and foliage is also a factor. Mayor Umstattd stated the monopole behind Petco is Nextel and is fairly slender. She questioned whether T- Mobile can achieve their goals with just one antenna, or whether array is necessary. Mr. Jews stated if T- Mobile would be allowed the height, they can achieve the coverage objective with a single antenna, but the question is capacity. He stated it is believed that the additional antennas increase coverage, but that is not the case it will only increase the capacity. Mr. Hughes added that there are some restrictions by Dominion Power. He stated they utilize this platform type apparatus to allow the workers to be more secure. He stated T- Mobile is able to do a more slender apparatus in other locations but it depends on the factors that Mr. Jews reviewed and the requirements of the pole owner. Mayor Umstattd stated her understanding of the General Assembly's legislation over the past year is that even if localities find a way to pay for undergrounding, the General Assembly no longer allows it. 12 1 P <s g c COUNCIL MEETING November 9, 2010 Council Member Reid stated he was advised that the location of the ground equipment is in a flood plain. It was confirmed that this is not floodplain. He questioned why the Hogback Mountain tank site is not appropriate. Mr. Hughes stated he does not feel this location would not suit T- Mobile's needs. He stated this location would cause similar impacts on another neighborhood. Council Member Butler stated the Hogback Mountain tank is in the Country Club subdivision. Council Member Reid stated the town can give T- Mobile a better deal with respect to what they have to pay Dominion Power and Westpark for use of their site. Council Member Hammler questioned how much time Council has to make a decision. Ms. Irby stated it is about 20 days, which would be close to the first week in December. Mr. Hughes stated T- Mobile would not be in favor of deferral as this is an appropriate site that meets what the Zoning Ordinance and Town Plan want and another neighborhood would also oppose a tower. Vice Mayor Wright stated the Hogback Mountain site was not considered appropriate because T- Mobile would have to build a monopole because they could not use the tank as it is surrounded by trees. Council Member Hammler questioned whether it would be possible for the town to commission a third party consultant to understand the implications and question the assumptions in terms of coverage. She stated this might allow the opportunity to weigh specific other sites and the implications of a significant grass roots uproar that might have significant impact on subscribers. On a motion by Vice Mayor Wright, seconded by Council Member Butler, the following was proposed: RESOLUTION 2010 -143 To Approve a Commission Permit, TLCP 2010 -0002, T- Mobile at Westpark for the Installation of Telecommunication Antennas, with Ground Mounted Equipment Vice Mayor Wright stated he is making this motion based on the reasons outlined in the staff report. Further, he stated he cannot find a conflict with this use as relates to the Town Plan. 13 1 P COUNCIL MEETING November 9, 2010 Council Member Reid asked for a friendly amendment to strike the line: "The Town Council determines the proposal will serve the public necessity, convenience, general welfare, and good zoning practice" from the resolution. The motion was accepted as friendly. Council Member Dunn stated he would oppose this based on the recommendation of the Planning Commission. He stated he does not feel it is in line with the Town Plan. He stated the ultimate goal should be to get as many wires underground as possible to eliminate the need for towers. He stated he was not happy with the conflicting information about the interdependency between the other panels that were approved at the last meeting. He stated the citizens need to know that they have an ear on Council and their voices are heard. Council Member Hammler stated a motion to defer would be delaying the inevitable. She stated she has sought every legal angle in terms of justification for denial given the current ordinance and Town Plan. She stated she would like to look at the zoning ordinance going forward, specifically the application fee and the process whereby the town would solicit a third party consultant in this sort of application. She stated the current ordinance makes it clear that the town cannot defend itself should Council chose to deny this application. The motion was approved by the following vote: Aye: Butler, Hammler, Martinez, Reid and Wright Nay: Dunn and Mayor Umstattd Vote: 5 -2 On a motion by Vice Mayor Wright, seconded by Council Member Reid, the following was proposed: RESOLUTION 2010 -144 To Approve the Telecommunication Antenna Special Exception Use for TLSE 2010 -0005, T- Mobile Antenna at Westpark Mayor Umstattd proposed a friendly amendment to require that screening material be installed that is at least as tall as the board -on -board fencing. Further, she requested that T- Mobile confirm that it will not install lights on the antenna or tower unless required by the Federal Aviation Administration (FAA). Council Member Reid suggested the language "T- Mobile shall work with the town staff and arborist to revise a garden around the fenced ground equipment and work with the impacted homes in the Country Club community to improve buffering and views of the tower" and then add the line about the lights. 141 COUNCIL MEETING November 9, 2010 Vice Mayor Wright stated this sounds as if Council is asking the applicant to buffer the view of the entire tower. He asked if the applicant would agree to this requirement. Mr. Hughes stated they would work on landscaping, but he is concerned that the ultimate goal of this is something that T- Mobile cannot live up to, i.e. screening the entire 150 foot existing Dominion pole. Vice Mayor Wright clarified that the Mayor's friendly amendment was for a planted height of eight feet and adding language for a Condition #6, which specify no light placed atop of the structure unless required by the FAA. He verified that the applicant can agree to those conditions. He accepted this as a friendly amendment. Council Member Reid accepted this as a friendly amendment. Vice Mayor Wright stated this application is getting a lot of community reaction to the power line towers themselves following so closely on their installation. He stated the challenge he has in looking at the zoning ordinance requirements is this is a use that is being screened and is in an appropriate district. He cautioned Council in getting involved with the question of whether a private commercial entity has a need for the facility which they are requesting particularly since the facility is permitted by the zoning district in which it is proposed. He stated another caution would be towards advocating moving this to another piece of private property and affecting another group of landowners and residents. He stated that any time there is a land use application, the town encourages, but cannot require, the applicant to go door to door and engage the community. He stated with regards to the zoning ordinance and the legal requirements, he cannot find cause to deny the application. Council Member Reid stated he is disappointed that Council cannot do anything to help the impacted residents. He stated a garden concept would help the Country Club Green community. He stated he is disappointed in the town regulations and that there was no effort by the economic development staff to try to work with T- Mobile to come up with a better location or possibly change the regulations. He stated the town is forced into this by Federal law, but he cannot support this without better buffering for the community. Council Member Dunn stated he will oppose this for the same reasons he opposed the last vote. The motion was approved by the following vote: Aye: Butler, Hammler, Martinez, and Wright Nay: Dunn, Reid, and Mayor Umstattd Vote: 4 -3 151 P g COUNCIL MEETING November 9, 2010 c. Concept Plan and Proffer Amendment TLZM 2010 -0001 Leesburg Central The public hearing was opened at 10:40 p.m. Michael Watkins stated this proposal is for the addition of roughly 2400 square feet, which is the third floor of an existing building and for phased development of the site. He stated Building 1 is under construction and close to completion. He stated the proposed amendment is consistent with the Town Plan and in substantial conformance with the prior approval of TLZM 2003- 0006. He stated the approved concept plan shows two buildings for a total of 22,297 square feet of office and proffers include office use only and the retention of the existing Bishop House as a residential dwelling. He stated as part of the previous concept plan, there were frontage improvements to Loudoun Street, Harrison Street, and Royal Street. He stated there was an existing off-site transportation contribution of $20,000, which has already been paid and the granting of an easement for future traffic signal. He stated the applicant meets the allowance for Payment in Lieu for parking. Mr. Watkins discussed the terms of the phased development including the provision of a flag man for safe ingress and egress of construction equipment along Harrison Street. He stated that the Planning Commission recommended approval of the concept plan and proffers with the staff recommendation of the transportation proffer amount of $11,733.00. He stated that staff recommends approval of the concept plan and proffers. He stated that appendix B of the Town Plan gives guidance to appropriate amounts for off-site transportation contributions and the amount is based on the additional square footage in Building 1. Vice Mayor Wright confirmed that Building 1 has the additional square footage and questioned how it received an approved site plan. He questioned how a zoning stamp was received for the larger building. Mr. Watkins stated the previous owner built a building larger than approved and now that the building has changed hands, the new owner wishes to complete the upper floor of the building for use. Mr. Boucher stated the proper square footage was approved and the former owner sent a different set of plans to the county for approval of the building permit. He stated the site plan with the appropriate square footage was approved. He verified that in this instance, the county did not verify the square footage from the site plan to the building plans. He stated the additional square footage must be blocked off and unusable unless the additional square footage is approved by Council. Vice Mayor Wright stated he has heard a lot of feedback from the community regarding the slow progress on this project. He noted the town has 16 1 Page COUNCIL MEETING November 9, 2010 no way to compel the owner to complete the building in a timely manner. He verified that if this application is denied, in order to get occupancy from the town, the owner will need to complete both buildings and if they do not have the funds to complete both buildings, the project could remain uncompleted for a longer period of time. Council Member Martinez questioned the total loss of parking spaces. He questioned the purpose of the chain link fence. Mr. Watkins verified that it would be nine spaces. Further, he stated the chain link fence is temporary to separate the completed building and its tenants from the construction area for Building 2. Mr. Binod Thapa represented the applicant. He clarified in terms of the extra square footage in the first building, it was in the floor plans shown as unoccupied space. He stated they would like to use that footage. He stated phasing the construction will allow them to occupy the first building to gain funding to complete the second building. He stated with regards to Proffer #6, the cash proffer for off -site transportation improvements. He stated in the original plan, there was a $20,000 cash proffer for the off -site transportation improvements approved by the Council and presently, they are adding approximately 2,000 additional square feet, for which staff is requesting $11,000. He stated under the current economic circumstances, they would request the amount be about $2,000 for the extra square footage. Council Member Martinez requested staff address the proffer contribution. Mr. Watkins stated that proffers are voluntary and can be negotiated. He stated with TLZM 2003 -0006, the Town Plan recommended contribution amount was $67,146.78 of which the Council approved a proffer of $20,000. Council Member Martinez noted that the $11,730 is directly related to the original amount of $67,146.78. Mrs. Ifert, stated she has given concerns over all the years and with what happened to the Country Club Green neighborhood with respect to the antenna, it feels like residents do not get much of a chance against businesses. She stated her concern is that she is right across the street from the project. She stated she lives next to McDowell's parking lot across from the Bishop house. She stated this has been an eyesore for six years. She expressed concern that the second building might be built larger than approved. Additionally, she expressed concern that the larger building will bring more people seeking parking on Royal Street. She stated she is not sure what she is opposed to anymore, she just wants to see the buildings completed. She noted the difference in approved heights for the new building and the Bishop house are crazy. The public hearing was closed at 10:56 p.m. 17 IF' COUNCIL MEETING November 9, 2010 Vice Mayor Wright questioned how many stories will be included in Building 2? He questioned upon occupancy of Building 1, what would be the condition of Building 2? Mr. Watkins stated the BAR has approved a two -story building for Building 2. He stated the Building 2 construction site would be surrounded by a chain link fence with privacy slats. Vice Mayor Wright questioned what current and ultimate condition of the Bishop house. Mr. Watkins stated it is his understanding the house is currently occupiable and will continue to be used as a residence once construction is completed. Vice Mayor Wright questioned how the higher proffer amount for transportation improvements was calculated at the time of the original concept plan. He questioned how the lower figure was arrived upon. Mr. Watkins stated they probably used Appendix B to calculate the higher contribution amount. Mr. Boucher stated the applicant, at the time, told Council the higher amount would kill the project and $20,000 was the negotiated amount. Further, he noted the project is in an area subject to the Board of Architectural Review and the initial concept plan showed the house being removed, so retention of the house changed the project quite a bit and design changes made with respect to the BAR and the location, i.e. the higher cost of developing in a brown field, cost a lot more than they originally estimated and they used that to negotiate the lower contribution. Vice Mayor Wright verified that $2,000 is the amount currently offered as an off -site transportation proffer by the applicant. He questioned, if approved, when the construction area will be fenced off and when Council can expect to see Building 2 completed. Mr. Thapa stated that in terms of the first building, they would need three months to complete it and make it ready for occupancy. He stated in terms of Building 2, he does not have a definite timeline, but with the current conditions getting cash flow from the first building will be a factor. Council Member Martinez questioned Ms. Ifert regarding the condition of the Bishop house. Ms. Ifert stated the house is a nice house and is currently rented. 18 1 Page COUNCIL MEETING November 9, 2010 Council Member Butler questioned what will happen to the property if Council does not approve this application. Mr. Watkins stated the owner will not be able to complete the third story of Building 1 and will have to complete Building 2 in order to get occupancy of any space. Council Member Reid stated with respect to the parking situation, the applicant is required to have 76 spaces from the original rezoning and the this proposal increases the number by eight, but due to minor adjustments, three on- site spaces were removed and they will have to make a Payment in Lieu for 12 additional parking spaces. Mr. Thapa verified they have not yet paid the Payment in Lieu for the 12 additional spaces. Council Member Reid noted there are only 57 on -site spaces. He verified that there are no signed leases at this time. He expressed concern that people will seek to park on Royal. Member Reid pointed out the residents of Royal Street can pursue a residential parking zone. He requested staff work with the community to see if they want a residential parking zone. Further, he requested suggestions to mitigate dust and impact to the community from the ongoing construction. Mr. Watkins stated the Department of Plan Review is expecting, with respect to the phasing plan, the surface will be a dust free and durable surface. Council Member Dunn verified there will be paved on -site parking for Phase I during the construction of Phase II. Vice Mayor Wright stated the town is giving a lot of consideration for the applicant's needs, such as allowing the greater square footage and phasing of construction. He questioned whether there is any ability for the applicant to proffer a greater number for ofd site transportation improvements than included in the proffer statement, closer to the $11,000. Mr. Thapa stated, if approved, they will be able to move quicker towards completion, but verified that they would not be willing to voluntarily increase the proffer amount. Mayor Umstattd stated it makes sense to allow the first building to be occupied before the second building is completed. She stated she does not know what the economy will show in the future. Further, she stated she likes Council Member Reid's suggestion of residential permit parking on Royal Street, if the residents want that. She expressed her support for this application. 191 t't COUNCIL MEETING November 9, 2010 On a motion by Council Member Dunn, seconded by Council Member Butler, the following was proposed: ORDINANCE 2010 -0 -024 Approving Concept Plan and Proffer Amendment TLZM 2010 -0001 Leesburg Central, Amending TLZM 2003 -0006, to Allow an Increase in Density and Phased Development of the Property Council Member Dunn stated this project needs to be moved along as it has been an eyesore for a long time. He stated letting it sit there does no one any good. Council Member Martinez stated that while he will vote to support this, he is not happy that the recommended proffers are not there and he does not like approving additional square footage after the fact. He stated as far as he is concerned, the town is being taken advantage of and if it was not for the current economic conditions, he would not support this application. Mr. Boucher clarified that the applicant can potentially get occupancy for the first building, but they cannot use the space unless this application is approved. Vice Mayor Wright stated he agrees with Council Member Martinez, but the other option is to continue to wait for completion of the second building. He stated a vote no will make the neighborhood situation worse. Council Member Hammier stated that is the conclusion she has come to as well. She suggested the town give economic development support to make this a viable project. 11. ORDINANCES a. None The motion was approved by the following vote: Aye: Butler, Dunn, Hammler, Martinez, Reid, Wright and Mayor Umstattd Nay: None Vote: 7 -0 12. RESOLUTIONS a. Extended Free Holiday Parking Council Member Butler made the following motion, seconded by Council Member Hammler: MOTION I move that the town garage hourly parking fee be waived from January 2, 2011 through February 23, 2011 by which time it is expected the Town 20 1 a COUNCIL MEETING November 9, 2010 Council will have had a comprehensive parking garage discussion at a work session Council Member Reid stated this was discussed at the work session and he felt that Council agreed to have the Town Manager return with some proposals during the budget process. He made a motion to table this item. The motion to table failed for lack of a second. Council Member Reid stated Council has not discussed this proposal at all and he does not know what the ramifications are of allowing hourly parking for free, yet charging for permits. Council Member Butler stated the original motion extended Holiday Parking through June 30, but it was brought up last night that what was wanted was to make the upper floors of the garage free, but keep the basement permit parking in place. He stated there was enthusiasm for a parking plan that the Town Manager will bring back in February. He stated this motion is the original intended motion just through the time that a work session discussion can be held. He stated this is a good faith effort for the downtown to show that Council is trying to do something about parking. Council Member Hammler stated she feels this was discussed at work session and it seems to be a straight forward compromise knowing that the discussion will be held on a date certain and allow Council to analyze the budget implications, solicit input from the downtown business owners, and give time for staff to come back with specific recommendations. Council Member Dunn offered a friendly amendment to offer free parking to the permit holders during the same period of time. He stated his concern is that those with the permits may decide not to use their permitted space. Council Member Butler agreed with this amendment. Council Member Hammler stated she does not believe it meets with the ultimate goal of extending free parking for short term visitors. Council Member Martinez seconded Council Member Dunn's amendment. Vice Mayor Wright verified that the Free Holiday Parking Program is everything is free and everyone parks wherever they want. He clarified that Council Member Dunn's motion addresses the reserved parking spaces but there is a third group that pays for a parking card, but parks wherever they want. Mr. Wells stated his concern was trying to tie it to the budget. He suggested that the Holiday Parking be extended in the garage until February 23, which will create no difference between hourly, basement and non reserved spaces. He stated this will be easier from an implementation standpoint. 21 1 r r <i COUNCIL MEETING November 9, 2010 Council Member Dunn stated his concern is the people who are dependent upon a reserved space, could have difficulty finding a space because of those using the free parking. Mr. Wells stated possibly those having permits can park in the basement and he suggested those with the upper level permits can park in the basement. He noted even during the holidays, the garage has only reached capacity a few times. He stated the garage is mostly full on Friday and Saturday nights. Council Member Reid cautioned that the regular office dwellers will be crowded out. Vice Mayor Wright summarized that the motion to amend would include the reserved parking would be free and they would still have their reserved space, the unreserved paid parking will also be free. Council Member Hammier made a motion to postpone until the next Council meeting. The motion was seconded by Council Member Reid. The motion to postpone was approved by the following vote: Aye: Hammier, Reid, Wright and Mayor Umstattd Nay: Butler, Dunn and Martinez Vote: 4 -3 b. Utility Issues On a motion by Council Member Reid, seconded by Vice Mayor Wright, the following was proposed: MOTION 2010 -013 I move that the Town Staff be directed to review Utility Department revenues and customer bills and develop options and fiscal implications of alternatives for: The application of the high use surcharge to the entire bill; The calculation of the sewer rate in relation to winter quarter. Staff is to present this information to the Utility Rate Advisory Committee in January, with a report from URAC due to the Council in February Council Member Hammier offered a friendly amendment to add a bullet to direct staff to come back with a recommendation regarding monthly billing /installment options and also instituting an emergency fund plan. Council Member Reid stated he supports this, but does not want staff to get involved with billing. He stated that issue can be dealt with at another time. He stated he does not support the amendment as friendly. 22 1 P a COUNCIL MEETING November 9, 2010 Council Member Hammier withdrew the friendly amendment and stated it can be discussed at a work session. Council Member Reid stated he is pleased with this even though it does not have the specificity he was looking for; however, Mr. Wells has assured him they will be looking at the Winter Plus concept, expenditures, and it will be leapfrogged ahead of the tiered rate structure and give an opportunity for the URAC to weigh in. Vice Mayor Wright stated this is a fairly simple motion to address how the town deals with the high use surcharge and how the winter quarter is being calculated. He stated it allows discussion of two serious problems that are affecting users. Council Member Reid stated last year, the Council did not have data on irrigation meters. He stated even those without sprinkler systems are being impacted. Mayor Umstattd stated she would support this motion and she would like to make a motion to direct staff to re- impose the 2005 100% out of town surcharge. Mayor Umstattd's motion died for lack of a second. Council Member Reid stated he appreciates the Mayor's diligence on this issue, but it is not germane to the issue at hand. Council Member Dunn stated his support for the motion and stated he hopes it is not just an evaluation of rates and staff will look at other options. The motion was approved by the following vote: Aye: Butler, Dunn, Hammier, Martinez, Reid, Wright and Mayor Umstattd Nay: None Vote: 7 -0 d. Legislative Agenda On a motion by Council Member Hammier, the following was proposed with the addition of the text "to amend State Code 15.3 -3201 to terminate the temporary restrictions on granting of city charters following annexation notices, institution of annexation proceedings and county immunity proceedings" under position on Specific Issues MOTION I move to approve the 2010 Legislative Agenda Council Member Hammler stated Council needs to move the general positions down and the specific issues up. 23 1 COUNCIL MEETING November 9, 2010 Vice Mayor Wright stated on page 5, item #22, he did not recall a consensus of Council. Ms. Fields stated, as directed at the work session, when all of the items were presented, she put everything that was mentioned whether it received a majority of support or not. Council Member Dunn requested the question be divided. He stated there are two items he does not want included. Vice Mayor Wright stated he has a list of at least five items he wants to discuss and has a broader issue that the Legislative Agenda went from two pages to five pages. Council Member Dunn made a motion to postpone. The motion was seconded by Vice Mayor Wright. Council Member Reid noted that a postponement will cause the legislators to be unable to introduce any bills on the behalf of Leesburg. He strongly urged Council not to postpone. 13. UNFINISHED BUSINESS a. None. 14. NEW BUSINESS a. None. 15. CLOSED SESSION a. None. The motion to postpone was approved by the following vote: Aye: Butler, Dunn, Martinez, and Wright Nay: Hammler, Reid and Mayor Umstattd Vote: 4 -3 16. COUNCIL COMMENTS Council Member Butler disclosed a meeting with Wolf Furniture. He stated the Halloween Parade was great. He stated he bought a bicycle at Bicycle Outfitters and rode his bike into work and back. He wished everyone a happy Thanksgiving. Council Member Hammler disclosed a meeting with the Mayor, Town Manager, Scott Parker, Randy Minchew, John and Doug Wolf on November 8. She stated she had a discussion with Paige Buscema of the LDBA regarding the sign ordinance on November 8. She suggested that the Paxton Haunted House actors create a more spooky atmosphere in the trolley for next year's Halloween Parade. She stated she was pleased with the Virginia Supreme Court ruling. She thanked Ms. Irby and Ms. Monday 241 7<s COUNCIL MEETING November 9, 2010 for their hard work and guidance. She congratulated Omnilert, Mom's Apple Pie, the Wine Kitchen, J. Morris Flowers who were winners at the Small Business Awards, and the three restaurants that were listed in the top list for Northern Virginia, Tuscarora Mill, Wine Kitchen, and Lightfoot. She stated this shows the significant quality of the restaurants and businesses that are making Leesburg vibrant. She congratulated Deputy Town Manager Kaj Dentler and her friend, Meg, on completing the Marine Corps. Marathon. She noted the CEO of ProJet is the speaker at Breakfast of Leaders this Friday. Further, she noted the gentleman that heads up the U.S. Customs Department will be a speaker at Belmont on Friday. She wished a happy Veteran's Day to all veterans and thanked those serving on active duty. Council Member Martinez apologized for not being able to attend the Small Business Awards and the Halloween Parade due to a pinched nerve and pulled muscle in his back. He stated the Restoration and Window Rehabilitation work shop was a great success with many people from other areas coming to the work shop. He stated it is good that Leesburg can take leadership on these events. He disclosed a meeting with Wolf Furniture on November 8. Vice Mayor Wright disclosed a meeting with Wolf Furniture on November 8 and a conversation with Waterford Development. Council Member Reid disclosed a meeting with Wolf Furniture and Randy Minchew. He stated he had a teleconference with Council Member Hammler and Paige Buscema regarding the sign ordinance and attended the Home Made Northern Virginia Gala which raises funds for the homeless shelter. He congratulated Congressman Wolf for his re- election victory. Council Member Dunn disclosed a meeting with Wolf Furniture and Clarke Realty. He asked everyone to remember Veteran's Day. 16. MAYOR'S COMMENTS Mayor Umstattd disclosed a meeting with Wolff Furniture on November 8. She stated it was a great meeting and the town is looking forward to working with them. She pointed out that the children along the Halloween Parade route and the Trick -or- Treaters were very polite. She stated she attended the community outreach event sponsored by Morven Park on Wednesday, November 3 at Ida Lee. She stated they are looking for community input on what Morven Park could be. She noted the Veteran's Day ceremonies on Thursday, November 11 with the dawn ceremony at Balls Bluff and the 10 a.m. ceremony at Dodona Manor where Senator Jim Webb will be the keynote speaker. 17. MANAGER'S COMMENTS Mr. Wells had no comments. 25 1 1' age COUNCIL MEETING November 9, 2010 18. ADJOURNMENT On a motion by Council Member Martinez, seconded by Council Member Butler, the meeting was adjourned at 12:05 a.m., Wednesday, November 10, 2010. A TE 04: I Clerk of Co 2010 tcmin 1109 n en C. mstattd, Mayor Town of Leesburg 26 1 I7