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:
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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:
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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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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.
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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.
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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