HomeMy Public PortalAbout2011_tcmin0628COUNCIL MEETING June 28, 2011
Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Umstattd presiding.
Council Members Present: David Butler, Thomas Dunn, II, Fernando "Marty"
Martinez, Katie Sheldon Hammler, Kenneth "Ken" Reid, Kevin Wright and Mayor
Umstattd.
Council Members Absent: Council Member Martinez arrived at 7:35 p.m..
Staff Present: Town Manager John Wells, Town Attorney Jeanette Irby, Director of
Public Works Tom Mason, Director of Plan Review William Ackman, Deputy Director
of Utilities Aref Etemadi, Senior Management Analyst Bob Berkey, Land Acquisition
Manager Keith Wilson and Clerk of Council Lee Ann Green
AGENDA ITEMS
1. CALL TO ORDER
2. INVOCATION: Council Member Butler
3. SALUTE TO THE FLAG: Council Member Hammier
4. ROLL CALL: Council Member Martinez absent, arriving at 7:35 p.m.
5. MINUTES
a. Work Session Minutes of June 13, 2011
On a motion by Council Member Butler, seconded by Council Member
Reid, the minutes of the June 13 work session were approved 6 -0 -1 (Martinez
absent).
6. ADOPTING THE MEETING AGENDA
On a motion by Council Member Dunn, seconded by Council Member Reid, the
meeting agenda was approved, after moving Item 13b prior to the public hearings, by the
following vote:
Aye: Butler, Dunn, Hammler, Reid, Wright, and Mayor Umstattd
Nay: None
Vote: 6 -0 -1 (Martinez absent)
7. PRESENTATIONS
a. Certificate of Recognition Jack Dudley
On a motion by Council Member Dunn, seconded by Vice Mayor Wright,
Jack Dudley was presented with a Certificate of Recognition for his appearance
before Congress to testify regarding the important of science and technology
education in schools.
b. Certificate of Recognition Brenda Conwell- Dudley
On a motion by Council Member Dunn, seconded by Vice Mayor Wright,
Brenda Conwell- Dudley was presented with a Certificate of Recognition for his
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June 28, 2011
appearance before Congress to testify regarding the important of science and
technology education in schools.
c. Tree Commission Annual Report
Tom Seeman, Chair of the Tree Commission, gave a brief description of
the Tree Commission's activities in meeting, enhancing, expanding the tree
canopy of the Town of Leesburg. He stated they held their annual Homeowner's
Association (HOA) summit two months ago. He stated they also worked on
their community canopy project, which they hope to expand to a year round
project. He stated they gave out seedlings at the Flower and Garden Show.
Further, he stated they have outreach programs at the local schools that includes
planting of a tree with the students. He stated they also do Comcast broadcasts
and fillers for HOA newsletters. He stated they are currently working on an
arboretum which will be used by local educators as a place to learn. He stated
the Tour de Trees will be stopping in Leesburg this year and is a huge
opportunity for education on the benefits of trees.
8. PETITIONERS
The petitioner's section was opened at 7:46 p.m.
Terry Elvers, 23 Linden Hill Way, thanked the Mayor and Council members for
their support for the access road. He stated this access road is about more than just
being able to make a left hand turn. He stated it is about the Council listening to a small
community and helping them preserve their property values.
Tom Hinders, 21 Linden Hill Way, thanked Council for taking the time to listen
to the citizens. He stated he is a new resident and is impressed with the openness of the
Council to listening to the thoughts, ideas, and protests of the Linden Hill Way
neighborhood.
Sondra Camp, 31 Linden Hill Way, thanked Council for their hard work. She
stated it seems to be more and more overwhelming as the town grows. She stated they
are still having problems with notification of meetings. She stated she is discouraged
that this has taken so long. She stated they have noticed heavy traffic this summer.
Kathleen Quinn, 906 Sweet William Court, introduced her daughter, Holland,
and her son, Jude. She stated they have had a wonderful civics lesson over the past few
months while she worked with Council and the Board of Supervisors on the issues
surrounding the County Government Support Center. She thanked Council for their
support. She stated the steering committee had three main recommendations including
moving some of the buildings around to put some distance between the juvenile
detention center and the community, acceleration of Crosstrail Boulevard, and the
addition of some traffic calming measures. She stated the construction of Crosstrail
through to Route 7 will benefit the entire community providing better access to Bolen
Park.
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COUNCIL MEETING June 28, 2011
Jude Quinn, stated he is a member of Boy Scout Pack 97 and is here to learn
about government. He thanked Council for supporting his mother in her work for their
neighborhood.
The petitioner's section was closed at 8:01 p.m.
9. APPROVAL OF THE CONSENT AGENDA
On a motion by Council Member Reid, seconded by Council Member Butler, the
following items were moved for approval as part of the Consent Agenda:
a. Authorizing an Agreement and Approving a Performance Guarantee and
a Water Extension Permit for Dulles Chrysler Dodge Jeep Ram
RESOLUTION 2011 -080
Authorizing an Agreement and Approving a Performance Guarantee and
a Water Extension Permit for Dulles Chrysler Dodge Jeep Ram
b. Accepting the Public Improvements, Releasing the Performance
Guarantee and Approving a Maintenance Guarantee for the Interchange at the
Intersection of East Market Street (Rt. 7), Rivercreek Parkway and Crosstrail
Boulevard
RESOLUTION 2011 -081
Accepting the Public Improvements, Releasing the Performance
Guarantee and Approving a Maintenance Guarantee for the Interchange
at the Intersection of East Market Street (Rt. 7), Rivercreek Parkway and
Crosstrail Boulevard
c. Approving Participation in the Virginia Voluntary Group Long Term
Care Insurance Program and Authorizing the Town Manager to Enter Into an
Agreement with the Virginia Retirement System
RESOLUTION 2011 -082
Approving Participation in the Virginia Voluntary Group Long Term
Care Insurance Program and Authorizing the Town Manager to Enter
Into an Agreement with the Virginia Retirement System
d. Awarding the FY 2012 Contracts for Workers' Compensation to the
Virginia Association of Counties (VACO) and for Liability Insurance to the
Virginia Municipal League (VML)
RESOLUTION 2011 -083
Awarding the FY 2012 Contracts for Workers' Compensation to the
Virginia Association of Counties (VACO) and for Liability Insurance to
the Virginia Municipal League (VML)
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e. A
royal of a Reci royal A eement between the Town and Loudoun
County for Tax Collection
June 28, 2011
RESOLUTION 2011 -084
Approval of a Reciprocal Agreement between the Town and Loudoun
County for Tax Collection
f. Setting Aside the Available Carryover Funds in the Amount of $241,875
from the General Fund for the Annual Contribution to the Capital Asset
Replacement Reserve
RESOLUTION 2011 -085
Setting Aside the Available Carryover Funds in the Amount of $241,875
from the General Fund for the Annual Contribution to the Capital Asset
Replacement Reserve
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. RESOLUTIONS (REMOVED FROM CONSENT)
a. Amending the FY 2011 General Fund Operating Budget and Making a
Supplemental Appropriation in the Amount of $449,400 to Cover the Cost of
Turnover ($180,000), Debt Service ($139,400), and Consulting Services to
Implement the Form Based Code for the Crescent District ($130,000)
On a motion by Council Member Butler, seconded by Council Member
Martinez, the following was proposed:
RESOLUTION 2011 -086
Amending the FY 2011 General Fund Operating Budget and Making a
Supplemental Appropriation in the Amount of $449,400 to Cover the Cost
of Turnover ($180,000), Debt Service ($139,400), and Consulting Services
to Implement the Form Based Code for the Crescent District ($130,000)
Council Member Reid made a motion, seconded by Council Member
Dunn to divide the question to vote separately on the form based code issue.
The motion to divide the question failed by the following vote:
Aye: Dunn, Reid and Mayor Umstattd
Nay: Butler, Hammler, Martinez, and Wright
Vote: 3 -4
Hammler: I had follow -up questions for the town manager. He satisfied
mind relative to the additional amounts and specifically as relates to the Crescent
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district, those particular management plans would be required no matter what the
underlying zoning is.
Wright: Katie got my point that whether we are doing standard infill are
infill under the form -based code, we are going to have to sort out the issues that
are identified within those consulting dollars.
Reid: I'm very disappointed because I think the mayor, Mr. Dunn and I
have difficulties with form -based code and I think we should have the right to
vote against that. I think it was a little unfair to have it as part of the main
motion. I thought I discussed that with Ms. Hammler last night that I wanted a
division so now it basically forces us to vote up or down on all the other stuff. I
just don't think that one were laying off two people from our planning
department, that were spending $130,000 more on consulting for form based
code. I think it was only fair to allow us to vote it down. I'm just very
disappointed. That's all.
Dunn: in my reason for opposing the funds for form based code may be a
little bit different. I'm for form based code but I just don't think we need to be
spending this kind of money for a consultant. The books been written, follow the
guidelines. That would be like saying let's get a consultant in here next so that we
can adhere to our DCSM that were getting ready to pass tonight. I just don't
think there's a need for it. Especially if the form -based lite is the next that, there
were talking about having to probably get a consultant for that too. So, I think
the form -based code has been beaten to death. It's time to implement. I think staff
can do a good enough job implementing the guidelines that we don't need a
consultant to do it. Since we can divide the question, I'm going to have to go
ahead and vote against the whole motion which I don't want to do but that hand
is been forced.
Mayor: I appreciate it. I would tend to echo Tom's comments. I'll be
voting against this. I wish the form -based code item had not been added in to this
motion. I think the motion will pass. I would be astonished if it didn't or the
resolution will pass. If it were not the past, I would be happy to bring forth a
motion to approve the other two items. I just can't support this kind of the
expenditure for form based code. I think it will just be the first of many expensive
expenditures for that project.
The motion was approved by the following vote:
Aye: Butler, Hammler, Martinez and Wright
Nay: Dunn, Reid, and Mayor Umstattd
Vote: 4 -3
b. Awarding the Construction Contract for Replacement of the Leesburg
Central Maintenance Facility Fuel Island
On a motion by Vice Mayor Wright, seconded by Council Member
Butler, the following was proposed:
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COUNCIL MEETING June 28, 2011
RESOLUTION 2011 -087
Awarding the Construction Contract for Replacement of the Leesburg
Central Maintenance Facility Fuel Island
Wright: I am satisfied with the information provided.
Reid: I just want to thank Mr. Mason for the more detailed explanation of
the replacement. I am just very concerned about the cost. I just... you know and
I also appreciate the explanation on the bulk fuel comparison. Thank you very
much for that as well. I thought that was a good program, but apparently we are
better off where we are now. I just cannot in good conscience vote for that kind
of amount of money right now even though it is coming out of the capital asset
fund, so that is why I had to take it off. However, I think it might be best if I just
abstain on this because maybe I will sit down with staff at some future point and
discuss what we are doing here. Thanks a lot, Tom, I appreciate the detail.
Dunn: I am going to have to vote no on this because again, for me, with
so much of the cost seeming to go down these days, it is hard for me to justify
why this is an increase. Again, with all the budget issues we have had, I just find
this tough to vote for, so I'll have to vote against this.
Mayor: The fiscal analysis says the contract cost of $435,000 is $135,000
higher than the original estimate. Savings from other asset replacement projects
are being used to cover the $135,000. So, that's what we are looking at in dollar
amounts.
The motion was approved by the following vote:
Aye: Butler, Hammler, Wright, and Mayor Umstattd
Nay: Dun
Vote: 4 -1 -1 -1 (Reid abstaining, Martinez absent)
c. Making an Appointment to the Tree Commission (Butler)
On a motion by Council Member Butler, seconded by Vice Mayor
Wright, the following was proposed:
RESOLUTION 2011 -088
Making an Appointment to the Tree Commission Dale Goodson
Butler: Dale was someone who applied and who was recommended by
other members of the Tree Commission, so I was more than happy to accept his
application.
Mayor: Is Dale still on SRTC, or is he off SRTC? He is still on? I think
our rules allow for someone to serve on SRTC and Tree.
Hammler: Just a question... why was this removed from Consent?
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Mayor: Tom asked that it be removed from Consent last night.
Hammler: Do we know why?
Mayor: I haven't gotten to him yet. But if he wants to say something, he
can. But, nobody else down there has any comments? Okay.
Dunn: The chairman of the Tree Commission is my nominee. Dale is my
nominee to the SRTC. He is a friend of mine. I don't oppose Dale serving this
town. I think he is a great asset and will do a great job in any capacity; however,
I will be abstaining on this vote because of that. I am generally opposed to... and
this is one thing that I probably need to add to a work session is to change this
rule that does limit the number of commissions or committees that one serves
on. I think that generally I am opposed to people serving on multiple committees
and commissions. I think that we should be seeking out the free flow of
information and ideas from as many people in town as possible and not have the
information being funneled through just a few minds. If we are truly needing to
have fewer people serve, then maybe we should consider getting rid of certain
commissions or consolidating commissions so that these people can serve or wear
multiple hats, but generally I am just opposed to people serving on multiple
committees and commissions.
The motion was approved by the following vote:
Aye: Butler, Hammler, Martinez, Reid, Wright and Mayor Umstattd
Nay: None
Vote: 6 -0 -1 (Dunn abstaining)
11. PUBLIC HEARINGS
a. Amending the Design and Construction Standards Manual (DCSM) to
Revise the Empowering Ordinances and Articles 1, 5, 6, 7, 8, 9, 10, and 11 and
Amending the Subdivision and Land Development Regulations (SLDR) Division
1, 2, 3, 4, 5, 6, and 7, and Amending the Land Development Review and
Inspection Fee Schedule
The public hearing was opened at 9:03 p.m.
Bill Adman: I'll keep it brief. I'll see if I can hold to the same five
minute criteria. I am before you tonight with changes to the SLDR, DCSM and
the fee schedule. While there is a lot of paper before you, it can really be
summed up in about 11 items. So, I will briefly go through those 11 items and
then take any questions or further explanation of anything that the council would
ask of me. The Subdivision and Land Development Regulations, the numbering
system is being changed due to the fact that it is no longer part of our town code.
Number two, at the last budget approval process, it was decided that several
members of DPR would be transferred to the Capital Projects section to allow
them to have enough staff to be able to approve their own projects so there are
numerous locations within the SLDR and the DCSM that require some further
definition and clarification as to the approval process and the types of plans that
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are being processed through the town. The third item is that the LSDO does not
currently have an easement plat or dedication plat so what we have done is
created a section for easement dedication plats. The fourth brief summary would
be to be consistent with other jurisdictions and to streamline the approval process
of preliminary residential subdivision plats. We would ask that be an
administrative approval in lieu of requiring planning commission approval. The
fifth item is that the current language in the SLDR does not match the town's
current bonding process. We have currently worked with the director of public
works, thank you Tom, for all of your assistance in identifying what our current
bonding process is. We have put that in the SLDR and removed any correlation
in the DCSM so we don't have any conflicts between those two documents and
then the DCSM references the SLDR. The sixth item is based on several recent
land development applications. It has become apparent to staff that we were
missing a category of plans so for lack of a better term, we are going to call it a
mini -site plan and that will capture things in between a minor site plan and a site
plan waiver. To be consistent with other jurisdictions we are going to add some
language in the SLDR that creates a sunset clause for site plans that have been
approved and that sunset clause will be five years. The one thing the town is
going to try to be a little more generous than some of our neighbors... in addition
to those five years, we will with a written request extend that one additional year.
Also to ensure that development applications that come through the town stay
consistent with our current regulations, we are going to propose in the SLDR that
we have some inactivity clauses. I do have some information for you tonight. I
will run through this and I will come back with that one. I do have some hand
outs for you tonight. The next item is the boundary line adjustment and vacation
section of the subdivision ordinance was very confusing. We did not change any
of the text aside from putting bullet points into clarify it. Last, but not least, in
several areas of the SLDR and DCSM there was language that was sometimes
confusing and the text didn't quite make sense. We made those changes without
changing... to make it read clearer without changing the context of the DCSM. I
did skip over one quickly and that was the references within the DCSM and the
SLDR as there have been updated publications that we reference. We have made
those updates to both of these documents. If I could go back just a second. One
of the things, I do have some handouts tonight. Let me briefly cover what this
handout is. It appears in two divisions of the SLDR and I am talking about the
inactive clauses. In Division II and Division III, it is exactly the same language,
it is just in the same place so that one relates to residential site plans, subdivision
plans and the other two site plans, minor site plans, mini site plans and the like.
What we are proposing is very similar to what is being done in Prince William
County and Stafford counties. In those jurisdictions, you have 60 days once the
last submission of plans... Once the comments have gone out for the last
submission. If they do not resubmit that it is up to them to submit a request for an
extension to staff. What Loudoun County does, let me be clear that what we are
proposing in this revise language is a lot easier to follow and a lot easier for the
development community to adhere to, so if it sounds confusing what I'm about to
tell you, it is. Number one, they get one extension and it is between six months
and three years of the last formal written comments. At that time, they are
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June 28, 2011
required to have resolution to approval within that three year block. So in other
words if you came in... And this is my understanding from talking to about five
different people at the County today... The way I understand it is interpreted if
you come in one day before three years, you have one day to get approval. Sir
really limits you. If you're going to ask for this extension, you are going to want
to ask for this extension several months in advance to that three year clause so
you don't ask for it, pay for it, and then headed that. The County also has a very
expensive clause. If you come in after first submission you are going to pay 60%
of the original site plan or residential subdivision feet. It's the base fee, it doesn't
have all the add -ons but it would still end up being several thousand dollars. If
you come in after second submission, you repay the entire fee. What we are
proposing is after six months if you are not ready to come in with the second
submission or third submission or a fourth submission, whatever the case may be,
you ask for an extension. From the time of first submission to signature sets you
can ask up to an additional four requests for a total of five. What that means, is it
adds up to six years. How do I get six years for five extensions? Well before you
apply for that first extension, it would've been with the applicant six months. See
start at that six months, you add five extensions of six months, you get three
years. What I did was... And I was probably just a little too close to this language
with all of the changes so as I went back and looked at it today, I tried to clarify
that language to be very concise with what I just explain tonight. Aside from that,
there are no other changes that I am putting forward to you other than what you
have already been provided. With that, I will take any questions, comments.
Hammler: I just appreciate all your hard efforts. This is a big amendment,
so thank you very much.
Butler: and I appreciate smaller amendments more often rather than
really large amendments like say once every 20 years or so.
Mayor: and Bill, I don't care what anybody else says this was better than
Harry Potter, avatar and the sound of music all put together. Thank you.
There were no speakers for this public hearing.
The public hearing was closed at 9:14 p.m.
On a motion by Vice Mayor Wright, seconded by Council Member
Butler, the following was proposed:
ORDINANCE 2011 -0 -016
Amending the Design and Construction Standards Manual (DCSM) to
Revise the Empowering Ordinances and Articles 1, 5, 6, 7, 8, 9, 10, and
11 and Amending the Subdivision and Land Development Regulations
(SLDR) Division 1, 2, 3, 4, 5, 6, and 7, and Amending the Land
Development Review and Inspection Fee Schedule
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Wright: I appreciate the work. I did want to complement you on the
advance work of getting us information. These are always kind of hard to chew
through. With all due respect, you don't bring us the most exciting agenda items
so I appreciate you kind of working on that in advance which allowed us to be
prepared for this this evening.
Hammler: I just appreciate some of the key points he made last night's
work session that with the changes this provides greater flexibility with things like
street widths and the ability to make the right kind of decisions given the current
conditions.
Reid: I just want to thank you for this work. It will be interesting to see
how pans out in terms of statistics and how it encourages folks to... Or
discourages. It might be a good idea, John, to get follow up next year around this
time just to see how this is working. I'm assuming that if it's not working, at least
not to your benefit, you are going to tell us. If applicants are going to complain to
us, that we know it's not working to their benefit. I just hope that we don't see a
situation like occurred with their Dodona manner and the fence where they
essentially forgot that they had only a year to get the fence up and then had to go
back to the BAR and start the process and there was no flexibility. I think that
what you have done with the language tonight at least allows you to send a
letter... Maybe a certified letter saying you are about to run out of time, what are
you going to do? I hope that you will be diligent with this and let these folks
know because there are some small applicants out there that just may not have all
their fingers on the keyboard so to speak. It may lapse and then they have to start
all over again. Thanks again for your work and for looking at the other
jurisdictions to see their best practices and modifying them.
Dunn: thank you again for your efforts, council is undisputed on that.
Mayor: Bill, before we finish up with Kevin if he has anything more, I
just really appreciate it. I really appreciate the fact that you have always brought
up private sector understanding to the public sector. I think that's very beneficial.
Wright: and in that vein, and to following councilmember Reid's
comments, I expect you guys to come up with a very proactive plan for those
dormant site plans that will be impacted by the time requirements of this and will
have a very concise English bullet pointed summary that you will be handing out
applicants as they come through so that they know what to expect.
Ackman: we will. We will be modifying our comment letters to be very
clear and concise. Will model it after some of the other jurisdictions and what we
will do is when we haven't seen an application in a while, it hits arctic lawyers
and we always follow up with e -mails and "where are you, can we be of any
further assistance We will add that caveat to that.
The motion was approved by the following vote:
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COUNCIL MEETING June 28, 2011
Aye: Butler, Dunn, Hammler, Martinez, Reid, Wright and Mayor
Umstattd
Nay: None
Vote: 7 -0
b. Declaring that a Public Necessity and Use Exists, Authorizing an Offer to
Acquire Fee Simple Right -of -Way and Easements From PIN 189 -45- 2225 -000,
PIN 189 -45- 2370 -000, and PIN 189 -45 -5750 -001 through 009 for the Turner
Harwood Drainage Improvements, Phase I and Phase II Project, including
Certain Public Road Improvements and Construction, and Authorizing
Condemnation if the Offer is not Accepted
The public hearing was opened at 9:18 p.m.
Keith Wilson: I am the land acquisition manager for capital projects. The
Turner Harwood drainage improvements, phase 1 and phase 2 project will extend
the concrete box culvert being constructed on the adjacent Frederick Douglass
elementary school project site an additional 230 feet, more or less to underneath
Old Sycolin road. The project will also extend the access road being constructed
for the school site providing an additional means of access between Plaza Street
and Old Sycolin Road. This new road between Plaza Street and Old Sycolin
Road is to be named Principal Drummond Way. As a part of the project, a
double box culvert will be constructed underneath the W &OD trail and an outfall
channel to Tuscarora Creek. The remaining land rights required for the drainage
improvement project includes the acquisition of fee simple right of way
dedications and various permanent and temporary easements on the Sycolin
Road Industrial Condominium Association and the Don W. Devine properties
and a permanent drainage easement on the Lilly Mae Lee property. We are
requesting Council to authorize condemnation.
Reid: So we are using town funds for this even though this is a school
project? They are not reimbursing us?
Wilson: The school has contributed funds to the project.
Reid: How much?
Wilson: I think it's approximately $900,000... Up to, they have
contributed some and then they have another contribution if we can secure the
land.
Reid: I guess the bottom line question is are the town taxpayers out any
money for this or is it all being reimbursed by the public schools?
Wilson: No, we have had some funds set aside for other projects and we
also have set aside in the capital projects budget.
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Wells: These are all proffer funds that are town funds. There are no... if I
can take everybody back. It has been some time since we laid out the financial
aspect of this project but the short version is that town proffer funds along with
school funds are being used on this project.
Reid: But why not all school funds? Why do we have to pay any money
for this?
Wells: This was a... I don't think Council Member Reid, you were on the
Council at the time, but a number of years ago there was a capital project referred
to as Turner Harwood. Turner Harwood was a drainage project that was behind
the Bellewood Commons project that was actually taken out of the CIP. The
town had a $350,000 proffer that could only be used on the specific area for
drainage on that project. Because no development was occurring in that area for
some time, the staff recommendation and Council concurred to take the project
out of the CIP for a number of years. At such time that the schools decided they
were going to move forward, this was an opportunity to bring school funds in
with town funds, have some of the work that is going on as part of the school
help the design of the project. So, by bringing both efforts together without
taxpayer dollars we had an opportunity for a win /win /win. The town part of
this effort is to handle the land acquisition. The schools are handling the actual
construction.
Reid: So basically it's $133,000 plus $13 out of the town?
Wells: Out of the project budget, which has no local tax dollars.
Reid: Those are proffered monies. But what about the other $270,000
from the Turner Harwood. Is that already spent for that drainage control project?
Wells: I'd have to get a bottom line number, but I think the key point is
there are not tax dollars.
Reid: I know, but it is still town money. But you are saying it was
earmarked specifically for this. It can't be used for anything else. So, we can't
put off any of the money... so we can't defray any of the expense for this to the
school system entirely?
was...
Wells: That's correct.
Dunn: So the property owners were not willing to negotiate, or what
Wilson: We are still in negotiations with the property owners but because
of the schools compressed schedule, they are looking to be able to occupy the
new building starting the 2012 -2013 school year. So they are under a very tight,
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compressed schedule. So, we are asking to proceed with the acquisition of the
land rights and we will continue to negotiate with the people even afterwards.
Dunn: What are some of the points of contention?
Wilson: Consideration is one of the issues. Drainage issues,
constructability on a piece of property. All of these issues, we are looking at and
discussing with the land owners right now and will continue to do that.
Dunn: What is the cut off date? When will negotiations end and
condemnation take effect?
Wilson: We would like to end negotiations at the end of this month and
to be able to take possession of the property, construct the project and still
continue negotiation with the landowners to come to some type of agreeable
solution if possible.
Wright: Just to follow -up on the negotiation process. As I understand it,
you get the declaration of a public need and the acquisition of property from
Council. You guys proceed all the way through whatever those condemnation
processes are with good faith negotiations to try to sort out an equitable
agreement between all parties throughout the process.
Wilson: Yes.
Stephen Price: I represent the Sycolin Road Industrial Condominium.
There are nine units up there and I represent them. Mr. Roncaglione is the
president of the Condo owners association, so rather than both of us speaking, he
has deferred to me to speak on behalf of the owners association as well as several
of the individual property owners who I represent. Let me say that we are
concerned about the design of the road and would like to negotiate over the
design of this road that is going on. I was previously involved with another
condemnation that the school board had with respect to this project and I am a
little puzzled... maybe staff can help me there, but I looked at the approved site
plan that the town had and this little road that is being condemned through
there... that was not part of the approved site plan. Maybe it has been amended
in the last several months, but this road project has sort of come out of nowhere.
We were certainly aware and welcomed the drainage improvements, in fact since
Bellewood Commons was built, we have been waiting for many years to see
them because of the runoff from Bellewood Commons causes flooding
downstream where we are, so that will solve it. We would, even if the town
concludes that it does need to do a quick take to meet some of the requirements
of the school board, we would still ask that we could negotiate over road design
in the sense that there could be a less intrusive taking of land for a road and that
at the end of the day, it will cost the taxpayers less money because the more land
that is taken, the more that has to be paid. We are also concerns about damages
to the residue that it reduces the usefulness of the rest of the property that we
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COUNCIL MEETING
June 28, 2011
have left after the taking. That is where the Sycolin Road Industrial
Condominium owners are right now. Look forward to working with and trying
to resolve everything in an amicable fashion without having to go through a just
compensation hearing. I can answer any questions anybody might have.
Reid: yes, Mr. Price. Would you suggest any language for the resolution
to accommodate your client? Because that's really what's before us tonight, unless
we deferred this. So if there's anything you can think of that we have to do here.
Price: I'm not sure formally on the resolution. I understand from speaking
with the town attorney before the hearing tonight, that there are some deadlines
at least as far as the school board is concerned. At least I would hope that there
would be some type of informal suggestion to the staff that they try to work with
us on the design even if you have done the quick take. It is always possible to
amend the certificate of take after... If in fact we can see our way through to a
last intrusive taking of land for the road design.
Reid: is that possible, John? Or town attorney?
Irby: yes, we can always negotiate a settlement that meets the needs of
both parties. Certainly as unfortunate as having to file a certificate is sometimes it
is the beginning of the negotiating process. I look forward to working with Mr.
Price. I know he worked with the school board and they reached a resolution
amicably in that situation after takes were filed and anticipate that we will be
doing the same.
Reid: are you saying that this is going to negatively impact that
condominium? I know that condominium development well so, are you saying
that construction...
Irby: I would expect Mr. Price to say anything other than it would
negatively impact his property.
Reid: but if this is going to raise the cost, then John is her money from the
proffers are from the school to pay for that, if folks are negatively impacted? I
hope the school system would pay for. It's their project.
Wells: No, it is a joint project.
Reid: I know it's a joint project, but it's the school that driving it.
Wells: I will work closely with Jeanette and Mr. Price to bring this project
within budget. If we have an issue, we will bring it back to Council. I cannot say
more than that at this point.
Reid: Okay, so there is nothing in the language...
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COUNCIL MEETING June 28, 2011
Price: No, I don't see so. Just approve a little nudge to staff to work with
us on that, we would appreciate it.
Faron Lee: president of Southern Electric, 103 Sycolin Road. My mother
is not able to be here. She asked me to come and speak on her behalf. You guys
are intending to take our property. I would like to say that Keith has been great
to work with over the last six or seven months that you guys have been coming
down. Very professional. Very kind. Provided us with information that we have
asked for. I think the thing we are unhappy about is the fact that you want to
give us $12,000 and walk away after dumping everybody's problems upstream on
our lap. Southern Electric has been in business since 1963. I actually have an
article in my clipboard where the town was the source where you identified us as
one of your top 17 of 100 or larger private employers. I don't know how many
Legacy certificates that you guys have given us, but we have a bunch of them
laying around the office, on the wall. We tried to be good members of the town
and support everything that is going on. This project is really going to impact us.
It may shut us down there. What I had asked when Keith first came down, I
asked him why can't you take this project underneath of Plaza Street extended
and your answer was?
Wilson: (inaudible).
Lee: To me you said it was just way too expensive. Then when I asked
you why don't you take it straight down Sycolin Road and dump it into the creek
in front of our place, the answer again was cost. So, the cost of managing the
school board's problem of building the school, when you build a project you
always have to manage water. Well rather than dealing with that cost, you are
dumping it on our property and really not compensating us enough to shore up
our building, close it up, seal it up along the back to keep water from coming into
the building. You know, I expressed to Keith that what I would be looking for is
enough money to be able to do that to give up the easement to the property and
what we got was somewhere around 10% of what we need to do that... was the
offer. It's just not acceptable. Schools are great. We need schools. You know,
we need an elementary school. I just want to be able to survive. You know, we
have been there in this location since 1976. We want to be able to survive and
continue to operate and run our business... that's our corporate headquarters.
We have three other business locations here in Leesburg, that we operate and pay
taxes. We just want to be able to operate our business. We want to be able to
stay there and enjoy the property that we own. It's paid for. It's such a time
when the economy being what it is, we have had about all the impacts we can
take as a construction business. So, asking for help. Very willing to negotiate.
Very willing to get to whatever it takes to allow the school project to move
forward but I don't feel like we should have to carry the burden and the cost for
that. I think its unfair to ask us to do that when we are going to reap no benefit
from that project. Basically, it costs money to manage water. The simple
solution is to dump it on our property and let us deal with the cost of it. I just
think that's unfair. So, I would appreciate some consideration. The opportunity
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COUNCIL MEETING
to have somebody say to the school board... someone with the Council to say
these guys truly do deserve some help here. We need to be able to maintain our
business and operate there. I appreciate the opportunity to speak. If I can answer
any questions.
Mayor: I appreciate your points. They are very well made.
June 28, 2011
Hammler: Mr. Lee, your points are extremely well taken and certainly
there is a precedent in the sense of you simply have to look at what has happened
north of town. There was one property owner they kept going back to the well
and condemning one property and quite frankly there is a little bait and switch
even with the town over building this high school. We were going to be having
field cooperation which never happened so to the extent, Jeanette and John, I
think this an incredibly important point. This is a very important business. If you
have recommendations in terms of what action we need to initiate which may
include not moving forward at this point, this is a very important issue.
Wells: I think the recommendation would be to move forward as we
mentioned. I think the opportunity to negotiate really is there and I think this
action opens that door to that process. It doesn't necessarily mean that we have to
do what was originally proposed, but I think that we have heard the comments...
That's why there is a public hearing as part of this process. We will take that back
and work very diligently with the individuals. That's what the process is about.
Holding up the project, from a... Well I don't want to say holding up the project,
but not taking action doesn't help this process at this point. It doesn't help the
negotiation process and that's really what this is at this time.
Hammler: Mdm. Mayor, may I ask a follow -up? I understand your point,
John. What would you recommend that's more specific that would allow us more
guarantee that we are going to see the level of negotiation required given it hasn't
happened in the past.
Wells: I wouldn't say... Let me not characterize the negotiations at this
point. I think there is no guarantee in any negotiation. I think the point is is that
the councils direction and discussion that were having to staff is very clear to us
as to what expectations are and we will follow through on that. There is no
further direction I think you can provide then to be as sensitive as possible,
understand the implications on the site, taken to account the costs of what's being
requested and bring that back as part of the process.
Mayor: I'm going to give others a chance to speak, Ken, and then I'll get
back to you.
Wright: I will confine mind to the ones that relate to you. I've got some
others generally. If I'm looking correctly, as I'm coming down sickle and, you
were across the trail and across the creek from the school site?
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COUNCIL MEETING June 28, 2011
Lee: as you are coming down cycle in, we are on the right -hand side. You
will go across the trail. Our property actually extends all the way back up along
the trail, basically where the culverts are coming out is on our property. But we
extend all the way down to the creek on the left -hand side of the trail.
Wright: so the easement we are asking is for the outfall?
Wilson: outfall for the new culvert going underneath the W &OD trail.
Wright: Okay, I got the picture.
Lee: the real picture is 40 foot wide culvert, 4 feet high, just dumping a
wall... Just pointed at our property.
Reid: John, the reality is that state the specific amount in the resolution.
There's nobody here from the school board, from Dr. Adamo's office or the
construction office. It is also a fact, John, that the school board is part of the
bond and paid 10 times the value of a property on Sycolin road to build the
school. They actually paid that, or they budgeted that and for them not to
consider the impact of the drainage, to throw that on the back of staff and you
and others is to me just really unconscionable. They are rushing to try to build a
school that could seriously impact a taxpaying business in Leesburg. I don't see
why we have to vote on this tonight. If we vote on this tonight, then basically we
are just giving... We are really not giving much leeway here. I think we have the
Board of Education commented talk to us.
Dunn: you brought up... I am from Arkansas, but I think I understand
your math. You said you were getting $12,000 and you estimated it to be 10
times that which would be the last time I checked $120,000.
Lee: That's at a minimum.
Dunn: okay, from staff are from you sir, what is the... What is hundred
and 25 are more going to buy or do for you?
Lee: when we originally learned about the project were what was going
on there, we have been sitting on the creek for quite a few years. Not an engineer.
I do know how the water rises and falls in and around our property. We see it
every time there's a storm or every time there's a major event. Our concern is
where the culvert is being added. There's probably somebody here much more
qualified to talk about this than me, but what has been explained to me is there
currently is to smaller culverts, one is a 24 inch and one is a 30 inch, is that right?
Wilson: There is currently an arched stone pipe going underneath the
W &OD trail, approximately a 24 inch metal pipe (inaudible).
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COUNCIL MEETING June 28, 2011
Lee: so what they have done, is they have the two coverts that drain now
the little bit of water that comes out of the circle that runs down. It drains down
through those two coverts under the trail onto our property. What they are doing
is putting 40 foot width, 4 foot height of culverts next to those, but above those
pipes. So the water has got to reach the level of those pipes before begins to even
move into the new outfall. Basically, once that water comes through their if it's
coming through there at a 4 foot height is going to hit the back of our building
and come into the back of our building at a pretty quick rate. The good news
about what happens there is the water comes up very quick and it goes down very
quick. So what we did was we went out and got an informal estimate, what
would it cost to come in on the inside of our building and shore up our wall and
create eight word concrete foundation that went down to the footer and came up
45 feet along the back of the building and when all the way across the back of the
building for that short duration of 20 min. or 30 min. that the water comes up
and then goes down so that we can keep water from coming into our building.
That's what we would use the money for. We're saying at a bare minimum we
feel that we should be compensated for the loss of our property and taking the
hardship of the project that's going on up the street from us. It's truly a water
management problem. Whoever's doing the construction should be covering the
cost of the water management problem. I don't think it should be laid on our
plate.
Dunn: For staff, I imagine that this solution, or the cost is significantly
less than what the estimate was for some of the other solutions that you were
saying were going to be too costly. Do you have any estimates on what the cost
would be of the Plaza Street or Sycolin?
Wilson: One of the big aspects of that is the grade difference and again we
would also impact the W &OD trail much greater. Right now, they want the least
impact that we can get to cross the trail, which we are going perpendicular across.
If we were to go in front of the business and down the old Sycolin Road, we
would be crossing the trail at a severe angle and another issue is they would like
continuity of access on the trail and we would be impacting the continuity of the
use of the trail because we are looking at grade differences maybe approaching 20
feet or more and extending the length of the project a significant amount.
Dunn: So we are talking about maybe millions? Thank you.
Hammler: Just a follow -up relative to an eminent domain issue and
additional costs to the town. What do we anticipate HJ 693's impact if not
reversed will be on something like this? Would there be any additional cost to the
town dealing with the requirement to pay property owners for lost profits, if you
will
Irby: that will be a consideration; however, I just want to respectfully
remind counsel that this is the beginning of the process. The amounts in your
resolution are based upon what a certified appraiser gave us as the fair market
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COUNCIL MEETING
June 28, 2011
value. Those are not members of the staff pick. Those are numbers that were
given to us by an appraiser. Those numbers are always subject to negotiation and
we will certainly be coming back to Council when we get done negotiating with
the property owners for approval or disapproval of any additional funds.
Obviously, there is some other engineering that has to go on here.
Hammler: what guarantee do we have that we will ensure that the school
system and quarter proves the funds based on required negotiations. In other
words so the cost is not fall back on the town given our stance on, perhaps, how
they have handled their condemnation proceedings in the past?
Irby: there was an agreement, that counsel entered into with the school
board with respect to this project. In that agreement, we negotiated an amount,
included the money from the town. We took into consideration that if we had to
do this project alone, because the school can go forward without us and none of
these property owners are going to get any additional relief. They have already
negotiated with the school. They have already reached their deal with the school
have been compensated, presumably to their satisfaction with respect to the
school for the part that the school needed to compensate them for. The remaining
part of the portion is for the benefit of the town, not necessarily the benefit of the
school. If benefit of both parties to have the school moved forward to have the
town's project because it saves both parties costs and so that was negotiated into
the agreement. That's not to say that those numbers aren't going to change.
Obviously there is this agreement with respect to what the appraiser has told
these folks what their property is worth and that may or may not be a number
that staff agrees with, but it certainly again is something that is not subject to a
discussion on the dais. This again brings the beginning of the process, so that we
can take the property and continue to negotiate with the property owners so they
can address their concerns with us specifically. If we reach a number that is
satisfactory to all parties and we bring that back to Council, if in the event that we
agree to disagree and we never agree, then they have redress in the courts, which
again is another process where these property owners can become sated. But long
before we get to that point, I would expect that we would continue to negotiate
and share information with these property owners to alleviate their concerns.
Hammler: The essence of my question is how do we ensure... and I
believe the answer is we can't unless we take perhaps action tonight. This is new
information relative to an important business owner, but Jeanette, if I am
understanding you correctly, we already entered into a final agreement with the
school board so we will bear any additional costs and obviously we are not going
to get into any details tonight. Is that your point?
Irby: Not necessarily.
Hammler: How do we ensure there is an action we can take tonight to
determine what that sequence of events is to ensure that the school board takes
responsibility as they should given that this is a construction issue.
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COUNCIL MEETING June 28, 2011
Mayor: Is there any language, Jeanette, that we could use, for example
maybe in Section 2 because we talk there about fairness to the owners. Is there
any additional language that we could put in at about that location to say that
basically include the problems like those that Southern Electric may face.
Irby: Madam Mayor, with all due respect, the Council has only heard one
side of the story. Staff has been working on this issue for months. We have tried
to keep Council abreast of what some of these issues are. If Council wants to
discuss this this evening, I have no problem. Mr. Wilson is here, we can go into
a closed session and I can explain to you specifically what has been done and
where we are and how... I already told you how these numbers were arrived at.
They were arrived at from a certified appraiser. We don't have the luxury as a
municipality to make up whatever number. We start with what a certified
appraiser told us the property is worth and we work from there. That's the
bottom number. If the appraiser had come up with a much higher number, then
that's where we start.
Wright: Mdm. Mayor, if I may. I know we are still in public comment
and in looking over your shoulder, I feeder someone else after on the list.
Mayor: no there is not, they signed up on the wrong form.
Wright: I just wanted us to get done with public comment, because we
have moved into debate.
The public hearing was closed at 9:52 p.m.
Mayor: Jeanette, I have a question. Based on what you just said, the
impression I have is our delaying a vote tonight in no way delays the opening of
the school.
Irby: that's not necessarily true.
Mayor: all right, for my edification could you please explain to me than
the nexus between this vote tonight and the school opening on time.
Irby: the school needs to have their grading permit. They cannot get their
grading permits until this property has been acquired and it's my understanding
that they need to apply for these permits within the next week to 10 days.
Wright: whose design is this? Don't stand up and say Bowman, because
I'll yell. Who is driving the train? The schools are driving the train. Where is the
school's construction rep?
Dunn: Sleeping.
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COUNCIL MEETING
June 28, 2011
Irby: no, he is here.
Wright: so this design, and maybe I'm looking at it wrong, it doesn't seem
to go on the most straight -line to the outfall and that's why have a line of people
on my podium. Why can it not make a more direct line? Is it cost driven or is
there geology are other issues that has a taking its current route?
There is many different factors that have been fitted out throughout the
design process, wetland permitting, adequate outfall. The current alignment is to
keep the drainage away from the Lee property outfall. If you would like me to
show you on the plan, which would probably be the easier thing to do.
Wright: While she is looking for that, if we can also address the other
comment.... Is the road actually a new edition?
There are actually two different site plans. There is one site plan for the
Frederick Douglass Elementary School that just sets everything up so that the
Turner Harwood project, which is the Town of Leesburg capital improvements
project can take the Frederick Douglass Elementary School site plan and then
further extend the road, Principal Drummond Way, and that is part of the
Turner Harwood project and not a part of the Douglass plan. There are two site
plans and the outfall is actually on the Turner Harwood /Town capital
improvements project.
Wright: Kaj, John, whoever jumps up first... when did we add a road to a
drainage project?
Ackman: The road... there is two different parts of the road components.
The first part is actually Sycolin Road itself. In order to put the box culverts
across Sycolin... you can't put a big box culvert without raising the elevation of
Sycolin Road. Principal Drummond way, a portion of that has to be done to
provide access to the school, but it does not have to make the connection to
Sycolin Road. It is a very short distance... you might want to help me with that
distance... 100 feet, 200 feet? Probably 200 feet. What is shown in our Crescent
District Plan that connection is shown. As long as we are out there, raising
Sycolin, it seemed like a very small... you have a fixed elevation, a fixed point on
Sycolin. You have a fixed point 200 feet away, where Principal Drummond ends
for the schools, which is an independent plan... if we never make that
connection, Principal Drummond still gets built to that point and it is a private
access for the schools only and you take away a potential access point for the
public between Sycolin and Plaza.
Wright: And to the earlier speaker's comment, is the portion of Principal
Drummond that is required by the schools reflected on the school's site plan...
Ackman: Yes.
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COUNCIL MEETING June 28, 2011
Wright: It is. So, it is the extension that is the new item that is only
reflected on the site plan...
Ackman: For the Turner Harwood. Yes.
Wright: I guess the challenge I am having. We have seen this happen
before on certain capital projects where we get the scope creep of while we are
there, we will do X. In some cases they make sense, but I don't like finding out
we are doing a road connection the night I am condemning right of way.
Ackman: With or without the road connection, you would still be doing
the grading in that area, so the grading would still occur in that area to support
the box culverts. So, basically you would be grading up until the extent of where
that road bed would be so the condemnation itself between the road or the
drainage project probably isn't a whole lot different.
Wright: So, the schools helped facilitate the design for the Turner
Harwood drainage project.
Ac They funded the entire design.
Wright: Okay, but somebody said they can build the school without us
building the drainage project?
Ackman: More or less.
Wright: That's my point... so they need drainage. They have got to come
across in some way. The culvert may not be four feet, it may be less. Am I
correct? They need an outfall.
Ackman: They could do a very expensive underground, onsite storm
water management facility on their site and then when we come through at a
later date, we would have to do the extended underneath the W &OD trail.
Wright: The challenge that I am having, especially with the Southern
Electric... I know when it has rained, I have driven over that bridge. I almost
think you are being polite in saying how quickly the water comes up and down. I
think I have described it and I have pictures where I called it class V rapids
through there. So, I am... having someone describe to me a four foot culvert
with another wall of water coming at me, I am pretty sure I would tell you what
to do with your offer. Sorry to negotiate against myself, but with all due respect
to you being here from Bowman, I have not seen a single individual from
Loudoun County Public Schools in this chambers or more importantly, in the
community, talking about the construction of this school other than knocking
down trees. So, I am not voting tonight.
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COUNCIL MEETING
June 28, 2011
One thing I would note from the way it was explained to you all is not
the way it truly occurs. The existing building lies within the Tuscarora Creek
floodplain. The floodplain for Tuscarora Creek is going to flood at this level
when the tributary 220, which is the the W &OD trail, the floodwater
elevation is down here. What we have done is actually provided an adequate
channel for the 10 year storm excluding the Tuscarora Creek flooding. So, we
have actually provided them with a best case scenario. In essence, we ignored
the Tuscarora Creek flooding and provided an adequate channel for the 10 year
storm, so that's like the best case scenario that could possibly happen. So, during
the 100 year storm, the water surge elevation is going to rise up to here and on
Tuscarora Creek, so it's not even going to matter what the tributary 220 is going
to do.
Mayor: You know what we need? We need a visual. We really do. I am
getting the sense that this thing is not going to pass tonight. I wouldn't mind
going into Closed Session on it and seeing if our questions have been answered.
What I am envisioning before Bowman spoke... what I am envisioning is two
huge pipes... and I don't know why two... that are just going to be sending waves
of water at the back of the Southern Electric building. That's what is in my mind
right now. I need a visual to tell me if that is indeed the case. That is what we are
getting from Mr. Lee and Bowman is saying no that's not what the visual is but
we need it clearly described and explained to us in a way we can all understand.
Wells: If I may, Madam Mayor. I have Mr. Ackman getting us some
drawings and I really think the discussion would be better had in Closed Session.
Dunn: I had a couple questions. This is more towards staff. Why are we
adding to this project? It seems that were adding this road feature. Is this
something in the town plan that were taking care of now? The wording was used
that we may need this in the future or this is for something that we are looking
ahead for. What is our aspect of this?
Wells: I'll start and Keith, you can help me if I have incorrect
information. In terms of the drainage aspects of it, there were already drainage
problems in the area. I think everybody has already seen them or taken pictures
of them. The town was given a proffer to deal with some aspects of those, but
those funds were insufficient and there seemed to have been some... the situation
hadn't reached a point that a major capital project was needed. Between what
was already existing and the addition of the schools, it seemed that this was the
opportunity to pool resources together, use the proffer that the town had and
begin to work on a permanent solution so that a variety of the problems that you
are hearing about tonight could be addressed. Has the engineering addressed
those? Possibly not. I think that's part of the discussion that we need to have but
with the addition of the school in the area and combine that with the problem
that already existed, I felt and I think the Council felt that it was important to
address what the entire Turner Harwood project was initially when it was
brought up 10 -15 years ago. Where did the road come from? I can't tell you
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COUNCIL MEETING June 28, 2011
specifically, although I do recall there was issues that the Council had raised
through part of the different planning aspects to have road access in that area, so
there was the opportunity to add in elements of a road network that will allow
better linkage and better access to the school. If that is something that we can
take away from this, then maybe we need to look at that. I think those are
aspects of a negotiation that we need to look at separate from... I don't think we
are going to solve it at the dais.
Dunn: I am never in favor of condemnation. It is rare and I can't think of
any other that we have actually had property owners come before us fighting and
requesting against the condemnation. Usually, while they may not be thrilled,
they are willing to go along with... this obviously is not the case. We have got
dollar amounts that are ten times different... staff fairly agreeing with that. We
were quick to postpone a very simple discussion earlier and I would recommend
that this is something that is much more important that it come back to us in two
weeks. I know that one way to ensure that a negotiation goes forward is not just
saying yes tonight and just rely on that but to more forcefully say no tonight and
ensure that those negotiations are moving forward much faster. I think to go
forward tonight is just to leave too much to chance and not having enough
information.
Mayor: yeah, I would like to bring it up in closed session. We have a
closed session scheduled for tonight anyway. We don't have to vote at this point.
The public hearing has been closed, but I would like to see staff's presentation as
well. We also have another issue to deal with. I am going to recommend that we
deal with the URAC issue and then go into closed session on this item as well as
the Cornerstone update and the sale of surplus property.
Reid: John, so this road that you are talking about is something that the
school board added because of the crescent district plan? Is it one of those roads
that we had laid out in the plan.... It is. So because of the crescent district, that's
part of the problem. It's not just a problem for Southern Electric, but also for
these folks here.
this.
Mayor: Let's not get into a debate on Crescent district issues as part of
Wright: Point of clarification. The adopted form based code does not
cover this area. Form based code does not cover that.
Reid: I'm not talking about that, sir. I'm talking about the crescent district
plan which the school board is trying to deal with and that's part of the drainage
issue.
Wells: That's where the road comes from.
Reid: But that's also part of the drainage problem.
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COUNCIL MEETING June 28, 2011
Reid: Then that's something that this town can do something about.
Mayor Umstattd made the following motion:
Pursuant to Section 2.2- 3711(A) (3) and (7) of the Code of Virginia, I
move that the Leesburg Town Council convene in a closed meeting for the
purpose of receiving information and discussion regarding:
(a) Cornerstone Update
(b) Sale of Surplus Property
(c) Real estate and legal remedies
The motion was seconded by Vice Mayor Wright and approved by the
following vote:
Aye: Butler, Dunn, Hammier, Martinez, Reid, Wright and Mayor
Umstattd
Nay: None
Vote: 7 -0
The Council convened in Closed Session at 10:32 p.m.
The Council reconvened in Open Session at 11:19 p.m.
On a motion by Mayor Umstattd, seconded by Vice Mayor Wright, the
following was proposed:
In accordance with Section 2.2 -3712 of the Code of Virginia, I move that
Council certify that to the best of each member's knowledge, only public
business matters lawfully exempted from open meeting requirements
under the Virginia Freedom of Information Act and such public business
matters as were identified in the motion by which the closed meeting was
convened were heard, discussed or considered in the meeting by Council.
The motion was approved by the following vote:
Aye: Butler, Dunn, Hammier, Martinez, Reid, Wright and Mayor
Umstattd
Nay: None
Vote: 7 -0
On a motion by Council Member Butler, seconded by Council Member
Martinez, the following was proposed:
RESOLUTION 2011 -089
Declaring that a Public Necessity and Use Exists, Authorizing an Offer to
Acquire Fee Simple Right -of -Way and Easements From PIN 189-45 -2225-
000, PIN 189 -45- 2370 -000, and PIN 189 -45- 5750 -001 through 009 for the
Turner Harwood Drainage Improvements, Phase I and Phase II Project,
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COUNCIL MEETING June 28, 2011
including Certain Public Road Improvements and Construction, and
Authorizing Condemnation if the Offer is not Accepted
Wright: There is definitely a public necessity here and the timing, based
on the agreement for the construction is definitely an issue. I would expect that,
as the town has done in the past, to make sure that we are negotiating in good
faith, because it's obviously no one's issue to go all the way through to a court
proceeding. I still wish we had a little more breathing room to sort out time -wise.
Dunn: I would just say, that I still in my mind debate the necessity and I
am not going to be able to support this motion.
12. ORDINANCES
a. None
The motion was approved by the following vote:
Aye: Butler, Hammler, Martinez, Wright, and Mayor
Umstattd
Nay: Dunn and Reid
Vote: 5 -2
13. RESOLUTIONS AND MOTIONS
a. Utility Rate Follow -up Resolution
Wells: Madam Mayor, there was an original motion that you will see in
your revised agenda that was crossed out. That was the motion that was
suggested as my interpretation of what the Council had talked about at the
previous meeting. The day the agenda packet went out, the URAC was
conveniently meeting that evening and their review of that motion, they asked to
rework the motion to basically allow the URAC to work with the Council on the
front end of any direction to a consultant so that a better definition of what the
perceived problem is and a framework for how that type of consultant direction
would be provided before the consultant is there. Mr. Titus is here and I think
that's about as concise as I can be.
Terry Titus: (inaudible)
Mayor: Thanks, Terry. Dave, you had wanted to say something.
On a motion by Council Member Butler, seconded by Council Member,
the following was proposed:
MOTION 2011 -019
I move that the Town Council direct the URAC to work with the Council
to define the problem to be addressed by a future utility rate study and the
policy guidance regarding potential rate structures and utility bill policy
impacts
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COUNCIL MEETING June 28, 2011
Butler: Point of clarification, the reason I thought the second paragraph is
premature. It implies that we are approving engaging a consultant before we
know what the policy is. That's why I just limited it to the first paragraph.
Reid: I agree. I'm glad Dave made that motion. It really makes no sense
to engage a consultant until the Council really has a firm understanding of what
the problem is. But, I would also like to ask Dave if he would support a friendly
amendment to add cost savings measures as part of the discussion. Rate
structures and cost cutting measures be considered.
Butler: no, I think that horse has been beaten about 50 times and it has
been dead and rotting. I prefer the URAC focus on what the rate structure is
going to be and looking at cost considerations... I don't think it's a good purview
for them.
Reid: Do you want to have revenue enhancements such as the graywater?
Butler: But again, that's a town level issue. I think that the rate structure
question is more than complex enough.
Dunn: I would like to make a motion, since that was not accepted as
friendly, I will go ahead and make a motion that a line be added that I move that
cost cutting measures also be considered.
Reid: Second.
Mayor: So Tom has made a motion to amend and the motion to amend
is to add in cost saving measures to be one of the considerations.
Reid: Could we review revenue enhancements as well?
Dunn: I think that gets a little far afield for the URAC. Obviously, if we
don't know what our costs are, how do we know what our rates are? That's
my....
Mayor: Tom has made that motion to amend and Ken has seconded it.
Wright: I think we covered the cost cutting measures through the budget
process. I think we understand the cost basis. We need to understand the rate
structure. I am sure as we are defining the overall policy, there may be natural
discussions that come from that but I think we just went through a fairly
extensive cost cutting process.
Hammier: Just the importance of focus and in order for us to have a
strong conclusion, we need to have you focus on exactly how this is worded.
Although, for the next motion I do have a question... the original motion.
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COUNCIL MEETING June 28, 2011
Mayor: Dave, I think you've made your position clear. We have retained
a consultant in the recent past to look at cost saving, cost cutting and I feel the
town got good value out of that. The consultant's advice was if we were doing
anything, we were spending too little. We had made Leesburg an example for the
nation in efficiently run systems. So don't think spending more taxpayer dollars
on yet another examination is going to be good use of that money. Katie you had
wanted to say something as well.
Hammier: Mdm. Mayor, if we could get a vote on that motion and then I
could ask my other question for the main motion, Mdm. Mayor.
Dunn: I would just beg to differ that I don't think that we actually did that
much cost cutting efforts when we went through the consultants and the efforts
by Council years ago. There are only three pages of cost cutting measures that we
did and we had a stack of things that we focused on for rate structures. Again, we
are going forward to do the same thing, focusing on rates. At the time, we said
we couldn't cut it anymore costs and her consultant said that but yet staff has
gone ahead and cut costs in that department. It shows that cost cutting measures
could be done but they continue to not be addressed. I would also recommend
that, again, that this be something that we consider and by the way, the URAC
win they brought before us this study, they said that cost cutting should be an
area that we look into. So I think that if they recommended it, we should at least
consider it.
The motion to amend failed by the following vote:
Aye: Dunn and Reid
Nay: Butler, Hammier, Martinez, Wright and Mayor Umstattd
Vote: 2 -5
Discussion returned to the main motion on the table.
Martinez: I'm not going to go to support this. My reasoning is not that I
don't support URAC. I think that this Council has done enough audits. We have
had the URAC committee work hard enough that we have to sit there and do this
again? I don't think so. As far as I'm concerned, we need to consider the URAC's
recommendations and we as a body need to make a decision. I think we have
enough data to make a decision and we all know what that is. Well, we don't all
my with that is. We all know that we need to do something. To sit there and
redefine the problem that we have redefine a half a dozen times and we have
ignored every auditor's advice. It's just another exercise that we don't need to go
through and I can't support it.
Hammier: Mdm. Mayor, I did just need some clarification before I ask
Marty if he was planning to suggest a new motion should this one not pass about
the town Council directing the staff to move forward with the consultant. What
exactly... Are we visualizing here a work session of the whole with the URAC
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COUNCIL MEETING June 28, 2011
with the Council... How often are we going to be meeting, what is the process
and who is participating?
Mayor: John, has URAC given any indication of how they anticipate
such a process working?
Wells: they have identified a number of different... Not a specific work
plan but the plan that they envisioned included providing... And Terry help me...
One would be surveying Council members to get answers to very specific
questions about how rates work, individual meetings with Council members and
group work sessions. I can't tell you exactly how long that would take, but that
was the discussion at the last meeting.
Titus: one thing I can add to John's list is, they all know, URAC all know
that I met with you individually. To say that there is not consensus is the
understatement of the year. Marty, with all due respect to you there are seven
different opinions as to what should happen here. Absent of us being able to
define what the policy is going to be, it's going to be very hard for us to come up
with an answer that's going to be acceptable to four or seven of you. So, we
thought it was better rather than go off and do something that we don't have any
direction, and get frustrated at the end, I think is what we are asking for. I will
assure you, we will do our best to minimize your active involvement with us as
we can. I'm not the chairman of the committee, but I will speak for him. I think
we can agree that we want to do the work and move on. That's what the purpose
is of this resolution. Did I say that right, John? I think there is some frustration...
The first thing is, and I think I can say this, the URAC is a technical committee,
not a political committee. I'm the only one on there that has ever played in this
game. So they don't understand when they get criticism, it's not personal. It's at
the policy and are there ways of taking care of those kinds of things? You raise
some questions, there are ways of dealing with those questions very simply. We
need to have those kinds of... Were not good raise this over here but we can raise
this... I think there are several of us on there that feel very strongly that we
should have a dedicated source of funds to reduce the debt. How we do that,
maybe do it with a flat rate which you objected to... Some may agree with that.
Some did agree with that. Is there another way of doing it? Yes. So we need to
have that kind of thrown on the table and get some direction. I don't mean to take
up your time, but that's kind of why we are doing this. Because we're getting kind
of frustrated.
Mayor: I can imagine. Thank you Terry. Other comments?
Wright: thank you Mdm. Mayor. I think the purpose of this resolution, as
I understood, was actually to avoid going out and hiring a consultant until we
knew what we wanted to do. As I understand the purpose of this resolution, is to
have URAC work with us, see if we can figure out kind of a framework for what
are the issues we want to address, a rate structure, how would we want that to
move forward so we know how to structure a future rate study. At this point,
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COUNCIL MEETING June 28, 2011
we've been kind of struggling because her different release and how significant
some of the current challenges are and how to solve some of the current
challenges. One recommendation we got addressed a portion of the challenges
that we have identified, not all of them. At the same time we got that
recommendation URAC also highlighted you also have this other brick wall
you're coming into called "you don't have a high and a fixed fee" or "you don't
have high enough overall revenue structure" so at some point you're going to
have to fix it. This is trying to do the proactive work ahead of time. Were going
to have to fix it, what's the best way to go about it. Then, after we muddle
through that because I'm sure won't be seamless despite you all's best efforts.
Once we muddle through kind of where we're at, then we decide are we ready to
forward with a consultant and a rate study and those items Kind of at the
appropriate time. This seems to be the more thoughtful way to approach it and I
would support that.
Mayor: I appreciate Kevin's position. I tend to agree with Marty though. I
don't know we agree for the same reasons or not. Right now this is a policy
battle. And that's a policy battle at the Council level and it always will be. By
continuing to... By going along with this, we drag URAC into our policy battles
and understandably, URAC members are frustrated because they don't know
what the majority policy on Council would be. So you guys don't want to spend
months developing one rate structure and then come back and have the majority
of Council say no, that's not where we want to go. I think you're looking for
policy guidance and I appreciate that but what I see happening is now you will be
stuck having to meet with us... And this is where the battle needs to be up on the
dais. It will be double meetings for you and it will probably be double meanings
for us and for staff may be quadruple time spent. My sincere preference would be
for Council to just deal with this at its own work sessions. I just see URAC
getting dragged more and more into policy battles which can get kind of
acrimonious up here. I don't want you all dragged into these because you don't
get paid for that kind of suffering. I'm not going to support it, but I completely
sympathize with what you're going through and why URAC once to go in this
direction.
Dunn: Terry, I appreciate your discussion with me. As I told you on the
phone when we were talking, I was going to be frank with you. You are right,
you probably have eight or nine different opinions up here and there's only seven
of us. I think that, and I'm not going to vote for this either for completely
different reason and that is I think that this body is likely to show that we can
come to a consensus and I really think that the long -term solution is looking at a
water authority that takes the political aspect out of our hands and puts it into an
independent... And you won't get seven people agreeing on that either. But it
sometime you may get seven people up here that are willing to actually say, I'll
give up the reins and let this go to, not a volunteer organization but an authority
that actually has the experience and the knowledge to actually run the utility
Department and the policies... Unlike a volunteer group like we are. I am willing
to give up those reins. I don't have an ego big enough to say I must retain control
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COUNCIL MEETING June 28, 2011
of the utility Department but I don't know that I can get the support for that. So
I'm going to save you all, at least by my vote, the trouble of having to work on
this any further but I do appreciate your efforts. Thank you.
Reid: but the problem is if we don't support this, then the direction of
Council is to do a rate study, isn't that right John? Based on our direction from
last fall, is to go ahead and hire a consultant to do a tiered rate study.
Wells: no I don't believe that's the case, councilmember Reid. I'm
thinking it through. The direction dealing with the tiered rate structure was a
direction as to what task URAC had to do next. URAC is saying that before you
do a rate study, you should engage...
Reid: yes, but if we don't approve Mr. Butler's resolution, the paragraph,
and then you have direction from Council from last fall to hire a consultant.
Wells: I don't believe I have that direction. I could be mistaken, but I
don't recall a vote to have staff do a rate study.
Reid: okay, so therefore whether this dies or lives tonight, you're not
going to go ahead and hire somebody and convene URAC. But what might have
been is URAC may just resign en masse. So, we won't have a tiered rate study at
all and as Kevin said, the purpose of this is to have a framework for what we are
going to be discussing. That is why I would urge my colleagues to support it
even though I fully understand what you said, Madam Mayor, about having
more meetings on this, but at least it is an opportunity to be educated about the
situation without a gun to our heads as it was in 2009. So, I am prepared to
support this.
Butler: Yeah. This was my motion. So, to put it simply, about six
months ago we gave the URAC direction to go off and do two things... come up
with a short term fix for the water sprinkler users, for people who water their
lawn. The intention was to go forward with a tiered rate structure to recommend
to Council. As it turns out by no big surprise, URAC came back and said okay,
to fix the water sprinkler user problem, you can lower their rates, but in order to
maintain the revenue neutrality, you will need to raise everybody else's rates a
little bit. Council didn't want to do that. So, my suggestion at the last meeting
was let's not go forward until... let's not tell URAC to go forward and design a
tiered rate structure with or without a consultant because the simple fact is that if
you... any change in the rate structure is going to decrease rates for some
category of user and increase rates for another category of user. There is no other
way around it. It is a zero sum game. In fact, it is going to be a negative sum
game because even though town staff thinks we are going to be $200,000 short in
revenue this fall, I think it is going to be closer to a half million. So, we are going
to have to raise rates. If we have a tiered structure that is going to make it better
for some class of users, we are going to have to raise rates more for another class
of users. All of this is fine, I think a tiered rate structure is the way to go, but
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COUNCIL MEETING June 28, 2011
there is no point in URAC or a consultant expending any energy until Council
provides direction to say from a policy standpoint these are the sets of customers
that we want to help with this tiered rate structure and we are willing to hurt
these other sets of customers. Until we say that, there is no point in spending any
effort or money. My personal belief is I don't think Council has the umph to
answer that question. I look back on it and except for putting a surcharge, the
initial surcharge on the out of town water users, I don't think Council has ever
changed water rates without a gun to their head. Ever. Every single time that
Council has acted, it has been with a gun to their head. So, 20 years of Councils
have shown themselves to be unable and unwilling to raise water rates for any
class of user other than ones that don't vote for them. That's what this motion is
basically saying... if we need to change the words, that's fine but what the words
need to mean is no point in going forward with any effort or money until Council
decides how the rate structure, the basic parameters of the policy.... Policy
parameters around a new rate structure otherwise we are going to have exactly
the same discussion that we had the last work session where URAC came back
with a very simple, straightforward solution and Council... their eyeballs all got
wiggly and there was no chance that it was going to pass. So, if this language
says that, then lets vote it up or down. If the language doesn't say that, and there
is other language that would maybe say that simpler, I am okay with that.
The original motion was approved by the following vote:
Aye: Butler, Hammler, Reid, and Wright
Nay: Dunn, Martinez and Mayor Umstattd
Vote: 4 -3
b. Linden Hill
On a motion by Council Member Dunn, seconded by Council Member
Reid, the following was proposed:
RESOLUTION
Authorizing an Expression of Interest to Identify and Quantify the
Interests of Potential Residential Homebuyers in Purchasing 1 Country
Club Drive, S.W.
Dunn: staff could maybe clear this up a little bit but, I think that we are
running to the time that a decision needs to be made because of the S. King St.
widening... And just what were going to do with this property. So I think that it's
time for us to move forward and we have learned that there are opportunities out
there that could help Council meet its goals that it set for itself in acquiring this
property. Just to review, a majority of Council expressed a desire to have the
access road to meet the needs and reduce the concerns of the residents for Linden
Hill. A majority of Council set a spending limit on what the town could spend for
acquiring this property to allow for the access road. And, Council expressed
desire to keep this process public and if there are other interested parties than it
should be a process that is made known to everybody, anyone who has an
interest in being involved.... That process should be made known and public. So,
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COUNCIL MEETING June 28, 2011
I think this resolution goes to meeting all those needs. I would like to suggest or
get Jeanette's feedback on one thing. Maybe I should wait for second on this
motion.
Mayor: You have got your second. I think Ken seconded your motion.
Dunn: okay. On the last line the... We are saying here property
conveying certain easements to the town, would it be acceptable to say after
easements to and then insert the words "or partnering with" or "other legal and
positive solutions for the town In other words, are we limiting it by just the
easements are could there be other solutions as long as we stay within the
parameters set Council set that allows us to consider other things. Do you feel
that the language here gives you enough latitude?
Irby: I put by your place something that I intend to advertise. It was my
understanding and direction that we were to acquire the easements so that we
could build the road. It's your resolution, Mr. Dunn, however you want to phrase
it is fine but with respect to this particular action that you're asking me to do, I
don't know that that language would be helpful, but that's just my opinion.
Dunn: but in essence, it still allows us... If we have folks that could be
interested in purchasing the property with us, or providing easements to the
town, any of those options could work through this resolution.
Irby: if you want me to put out a request and included that language, I
can certainly do that.
Dunn: I would recommend that. Rather than just being limited to us
acquiring easements, that we look at the possibility of partnering or other types of
joint purchasing or how we would like to have that contract read. Allow the town
manager and the town attorney to go forward with that instead of just limiting it
to easements.
Hammler: Mdm. Mayor, may I ask a question pursuing to that?
Mayor: yes, and I want to discuss something as well with Tom.
Hammler: right before or after stir this meeting was started, I was alerted
that there is actually a gentleman that may be interested in a specific deal with the
town. Could somebody please explain, given that this is not been conveyed in
any way, shape or form to Council how this is going to be disclosed and whether
this is legally permissible, the way this is being handled?
Irby: In a closed session I did convey that information to Council.
Mayor: this is the outcome of that. Because the town feels that legally it
cannot enter into an agreement or contract with just one individual at their
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COUNCIL MEETING June 28, 2011
request, in order to do it legally we have to open it up for anyone who might
want to enter into that kind of agreement. That's why this resolution is before us.
Hammier: I do recall at the end of the last meeting, there was a draft
resolution. Nobody ever discussed it. It was not discussed last night. Now there
is a specific individual... would it not have been more appropriate to initiate
specific outreach to individual council members. I just feel there really has not
been adequate information conveyed.
Mayor: all of this was conveyed to Council in closed session, as the town
attorney indicated.
Hammier: not to the level of detail that I think is pursuant within
individual sitting in the audience. But I'll let others continue and I'll ask
additional questions. Thank you.
Mayor: I want to make sure Tom, that we don't lose the importance
within this particular resolution of making sure the easements are conveyed to the
town. I don't want... I wouldn't want this to say either or. We do need the
easements so we can build the access road. The rest of this, I think, we have
already covered and we are not in any way rescinding... Jeanette, correct me if
I'm wrong. We are not rescinding our previous resolution to pay up to $375,000
for the property.
Irby: I did not remove that from this opportunity and the offer that was
conveyed to Council in a closed session indicated there was no legal reason not to
take that offer; however, it was the appearance of impropriety which is why some
Council members wanted to do this in a more public forum with respect to the
acquisition of real estate, although it's perfectly appropriate to do it in a closed
session.
Mayor: Very good. But it's up to you, it's your motion.
Dunn: If you feel... and the town attorney, especially, who is working on
this. If she feels this wording is enough to get what she wants done, then that's
fine.
Irby: Well, if someone comes along with something else, I can certainly
convey that to Council. If a better idea comes along, I am all ears and will pass
that along.
Dunn: Okay.
Hammier: Madam Mayor. Point of order. Can you just clarify what just
happened is Council Member Dunn amending or suggesting a partnership or is
this actually...
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Mayor: He has dropped that request.
Hammler: This is simply to express an interest regarding someone
purchasing a home that is already on the market?
Mayor: The last paragraph, I think pretty well explains it. But, Tom did
you want to respond?
Dunn: Again, I don't think Ken has had his opportunity because we have
not opened this up for discussion yet. I'll try to stay in order and I'll defer to Ken
going next.
Mayor: Ken, do you have any initial comments?
Reid: Yes. Thank you for coming out, Linden Hill folks. How many are
here from Linden Hill tonight. Okay, so it's a number of folks. Thank you very
much for coming out. There is a gentleman who wants to sort of go in with the
town in terms of the purchase and we can't make a specific deal with that person.
We have to open it up to everybody.
Irby: That's not true. You can make that deal, but what I said was it's the
appearance of making that deal. If Council wants to make that deal, Council can
make that deal.
Reid: Yeah, we could, but I like this approach better, Jeanette. What you
have in the pink sheet, I think it's more transparent. That's really all we are
doing here. Again, I just want to say to my colleagues, even though this... and I
thank Ms. Camp, or Mr. Elvers for saying I was thinking out of the box when I
came up with this idea. The fact of the matter is, I wish I had not had to come up
with this idea. I don't think there is anybody up here that wishes we would just
have an open break in the middle of Route 15 to allow you guys to take a left
turn, no cost to the town whatsoever. Unfortunately, we are in a situation where
the Virginia Department of Transportation is not going to you know, absolve
the town from liability and we have to deal with our engineers. So, that's why
we are in this situation and we have not been able to make a deal with the owner
of the property... the banks. This is just expanding our options. That's all it is.
Jeanette will come back and Council will have an opportunity to say yes or no.
Should this have been discussed at a work session, may be. But that's what... We
can go to a committee of the whole set up, if that's what's necessary. The crews to
start widening route 15 are going to be out there next spring, so I wish that this
hadn't dragged on, I wish we didn't have to do this access road, but the
community wants it and I think we will be able to recoup these costs, especially if
we can have a broader option. That's all. Thank you.
Wright: Jeanette, the current direction that you have is to acquire the
property for no more than how much?
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COUNCIL MEETING June 28, 2011
do?
Irby: 375,000.
Wright: which is what it's listed at, but the bank hasn't accepted. Different
story. This motion contemplates us simply acquiring easements with someone
else acquiring the property.
Irby: yes, it's my understanding the way this is going to be structured, are
could be structured, is that someone else will purchase the property and agreed to
convey easements to the town for a price to be determined prior to them
purchasing the property.
Wright: why would we not, if easements are acceptable, could we not
negotiate the same with the current property owner or are they excluded from
that based on their current situation.
Irby: they are not excluded from that.
Wright: Okay.
Martinez: how much different is this than what we are already trying to
Irby: if for example, we had talked about the numbers with respect to
hatching to give them the easements, it really comes down to the financial
formula as opposed to how much you are willing to spend for the easements and
not get the house. Originally Council had thought they would purchase the
house, build the road and then sell the house. This opportunity would have the
third -party hold house and convey the easements back to the town for a price to
be determined, but they would retain the house.
Martinez: I just... I'm having some issues with it. I think were being
redundant in our intent. Not only that, I do have to agree with Katie that this is
the first time I've seen this resolution. I know I have missed a couple of working
sessions, but as I watched the working sessions on the webcast, I did not hear any
mention of this unless you guys had a closed session to discuss this. I don't know
what this really buys us. I mean if are going to do this anyway and we already
have the... We have already talked about our intent from day one. Do you have
an idea when the latest possible time you would need to have this conveyed to
our town for it to be part of the design?
Irby: I'll defer to Mr. Dentler.
Dentler: good evening, just to give you a quick schedule... A game plan
because we are at the point where we need to move forward with the design one
where the other. Construction of S. King St. is scheduled to start next spring. As
planned in the CIP, we are planned to start construction of the Linden Hill access
road the fall of 2012. We would finish Linden Hill in the summer of 13, at the
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COUNCIL MEETING June 28, 2011
latest, and then we would finish South King widening in the fall. The goal has
been to get the access road open before they would lose all entry points, as they
have today. So the answer is we need to move forward with design June 1. So
we're already 30 days behind trying to beat the schedule. I'm from staffs
perspective, we are at a crucial position... we need to know what you wish us to
do.
Martinez: That's different from... what I am asking is we could already
tell you to go ahead with the design not matter what the status of Linden Hill and
the access road is... we can already say we plan on doing this... go ahead and do
the design, correct?
Dentler: Right.
Martinez: So, whether or not we bought the property today is not going
to stop you from doing the design, if we direct you to. I don't have any other
questions, Madam Mayor.
Hammler: Well, first of all, just to affirm what I think is the most
important point. You are going to hear some discussion on the dais, because we
are trying to get to the rationality of what the purpose of this particular resolution
is given that we have had closed session after closed session. We have tried every
which way we can with the complexities of the foreclosure and a short sale. So,
by asking these questions, it in no way is meant to be that we are not fully
committed to the access road and moving forward on a design. Back to Council
Member Martinez' point, I think it is a clearer direction to say that we support
the design and moving forward if we are switching, in this case, the desire to
support purchasing and ensuring that we have the easements in place, which is
logical for a government role. I am fully supportive of that. Where I am most
uncomfortable with this is it appears to be somehow creating this false sense of
security for Linden Hill residents that we are somehow not supporting you
because we are bringing yet another possibility for some obtuse real estate deal,
which I question whether it makes sense for a town government to be involved
in. So, short answer, I would certainly support moving forward with design and,
Kaj, if based on that, how would you move forward on acquiring the easements
today given the complexities of the real estate deal?
Irby: If council wants to build the access road, the way to assure to do
that is to authorize condemnation.
Hammler: Okay, well so, would we need to do that as early as tonight,
then authorize condemnation and moving forward with design of the access road
versus what would be the next step should we pursue whatever this possible
ramification is?
Irby: We are not in a position to authorize condemnation this evening.
There are several procedural steps that we have to follow pursuant to state code
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and as discussed in closed session, there are certain drawbacks with respect to
condemning this property. There were some concerns that were addressed to
council going the condemnation route.
Hammler: So again, originally my understanding of the majority of
Council is that we had desired to enter into buying the house outright so we
could sell it later, which would essentially be a benefit financially. Jeanette, at
this point given the way that you are reading this, my interpretation is that it
doesn't really convey anything other than what we have already said. Obviously,
the house is on the market and obviously we are trying to build an access road
and would require easements. What either financially, or otherwise do you see
as the benefits to this and or the risk associated with not moving forward on the
more direct route, which in fact would be the proper next steps relative to
condemnation? Anything else required for the design?
Irby: I don't feel at all comfortable discussing the acquisition of real estate
on the dais with respect to condemnation. Not at all. I am sorry.
Hammler: Can you comment on your professional opinion about this
resolution?
Irby: This resolution was directed to be prepared by a Council Member
and I have prepared it and I have no comment other than that.
to do.
Hammler: Well, that's an interesting statement from our town attorney.
Irby: Are you asking me... it is legally sufficient to do what I was directed
Hammler: John, this is probably more of a question for you... what do
you see is the benefits to the town the way that this resolution is brought forward,
perhaps from a financial perspective and or, maybe the best answer, is there is no
risk because we capped the amount.
Wells: The resolution itself does not commit the town to any action.
What it does is create a form to have deals brought forward that the town would
still need to take action on. In and of itself, it doesn't finalize anything, but what
it does is creates a level playing field so that if somebody would like to make an
offer and partner with the town to limit the town's liability... or limit the
individual's liability on the acquisition of the property and the town paying the
balance for the easement, you would then know what those offers are. So, this
resolution creates information for you to come back at a later time.
Hammler: And is there any risk associated with any other more direct
route, which is the real goal for the Linden Hill residents that were actually
taking action?
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COUNCIL MEETING June 28, 2011
Wells: I think based on what the Council was told, there could be a risk in
following a different route.
hole?
Hammler: So this may be more time consuming, taking us down a rabbit
Wells: Until see what the results are back from it, I cannot comment.
You may get no responses. You may get multiple responses. Until I know what
the deal is in writing, I can't comment on it.
Hammier: Thank you.
Martinez: May I make a comment? So, I think that it would be more
effective to assure the Linden Hill residents... would be to go ahead with the...
and approve the design and talk about condemnation in lieu of not being able to
buy the property or work an an agreement in buying the property. At least this
way, they know our intent is to go ahead and do the design and that we are going
to get the property. If we cannot buy it or do it an easy way, we will have to go
the hard way, which I really am against doing, but I think that would be one of
the options we could go forward on that I would feel more comfortable with than
playing these games of resolution on top of resolution, potential buyers or no
potential buyers. Let the buyers do what they need to do, approach the town and
make an offer. Take it to that level and not play these real estate things anymore.
Butler: First, I have to say this whole Linden Hill thing has been a very
interesting experience for all of the council. I wish it were simpler. I, like some
of the other council members, it is not clear to me that we have had enough time
to discuss this so I am not at all sure that I am prepared to decide tonight. But
there is potential in this resolution, but I am not sure it is crafted quite right. But,
let me ask you a couple of process questions. Normally, this is just generic
process questions, it doesn't necessarily have anything to do with Linden Hill or
Country Club specifically. But generally, when we are going to do a
condemnation, we do a design, we look at the property, we figure out exactly
what we are going to need to condemn, right? And we do have that list here,
although it is not 100% specific... it's general, right? Then we figure out what we
think is a reasonable cost for those easements, right? Then we offer to pay that to
the property owner and the property owner can accept it or not accept it and then
there is some level of negotiation and then there is other potential processes if an
agreement cannot be reached. In almost all cases we can in fact proceed with the
project even if the ending financial obligation is open ended. Have I stated things
properly?
Irby: yes.
Butler: Okay, so it is not clear to me what this resolution adds to Council
other than there is potentially a... say a specific cost that we will pay for
easements. I might, after we have had a chance to discuss it, probably not
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COUNCIL MEETING June 28, 2011
tonight, but if we have a chance to discuss this a little bit more, I might possibly
be in favor of a resolution that would state... and again, I am not even sure that it
needs a resolution, but if somebody buys this house and they want to negotiate a
specific cost for the easements ahead of time before they buy the house, I'm
perfectly fine with that. Assuming that's after we have had an opportunity to
look at it and figure out what we think a reasonable cost for the easements is. If
somebody else other than the property owner wants to come in and negotiate and
say, hey if we can reach a deal I'll go and buy the property and if multiple want
to do that, I'm okay with that potentially. What I am not okay with is somebody
that wants to negotiate a range before they bought the house and our obligation
would be dependent on what they pay for the house. Then, we have lost control
of the amount that we pay and that is not acceptable to me because then the
town's obligation is still open ended and I would prefer a fixed cost. So, I think
generally, if somebody wants to come in and say hey, lets say we have reasonably
come with.. and I'm just making up a number and I'll just make up a number and
call it $100,000 because it is a round number. I really have absolutely no idea
what the easements will cost. If somebody comes in and says hey, I'll buy the
house and will give you the easements for $100,000 or somewhere close to there,
I am good with that because then we know what our cost is going to be. There is
no open endedness to it and if it fits into our financial models and everything
else, then I see no reason necessarily not to move forward. But if somebody
comes in and says okay, well it might be $100,000 but if we pay an extra
$100,000 for the house, it's going to be $200,000, okay that's not a deal I could
live with. So, I don't know if over the next two weeks there is a way to craft this
resolution that would provide that level of certainty in negotiations, but I would
be more than happy to... I think have multiple people come forward to negotiate,
but the point of it so far is I have no idea what the easements are supposed to
cost, what a reasonable amount is or anything else. So, I think we are getting
ahead of ourselves a little bit in the process. I can't entertain an offer in any case
now because until I hear from staff on exactly what that costs.
Reid: I just wanted to say if Mr. Martinez wants to make that motion to
go ahead and authorize staff to do the design and the construction of the access
road, I have no problem seconding that and then we can discuss... just because
the residents are out tonight, I have no problem with seconding that. You know
have a detailed discussion of this other option. Is that your intent, sir? Marty,
would you want to do that?
Martinez: (Inaudible) so that when we do have this resolution, at least
we come to the Council in that August discussion about whether
Wright: It's interesting. When all this started, we had talked that the cost
for this is going to go up. I think that maybe the reason that nobody wants to
come up with what seems to me to be the more obvious solution, which is we
weren't able to buy it at list... either raise the offer or change the strategy. There
are people in the house today. Either raise the offer to where we can buy it or
acquire the easement. I don't know that we have to do all of these convoluted
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COUNCIL MEETING June 28, 2011
things that when you read through it or you hear about it at a distance you are
like what in the world is the town doing. If you want to buy the property, buy the
property. If you don't want to buy the property, don't buy the property. We are
doing a lot of hand wringing without reason.
Dunn: Kevin, thanks for bringing that up because that was something
that the majority of Council has already voted down. The proposal was brought
before Council to go ahead and make a full offer. I believe at that time, it was
$425 or $450 and the majority of Council decided not to spend that much money.
I will also remind Council that Council has spent or allotted more funds to other
smaller communities than what we would be spending to purchase this property
outright. You are right. This doesn't need anymore discussion...
about?
Martinez: Point of clarification! What communities are you talking
Dunn: Well, Terry, I'm glad you are here tonight. We are spending..
Mayor: Tom, lets... Marty, he really doesn't have to get into that.
Dunn: No, Marty is obviously interested in that. You know we have
spent more money in other communities.
Mayor: I know, but we are getting way off track, but I appreciate it.
Dunn: I'll let Marty know later... I'll remind him. We have spent more
money in other communities that have fewer homes because of the need. This is
just another need that citizens have and yet we can't go from 375 to 425 because
it is just going to break the bank. So, it really comes down to what Kevin, I think
has said. And Kevin, the one thing I'll give you credit for is this, among many
things, but you have stayed firm in your opinion on this. We had a scout here
tonight who would probably recognize some of the actions because he has seen
fish when you pull them up on the bank, they do a lot of flipping. He would
probably recognize that here. But Kevin, you have stayed firm. And I appreciate
that, while I don't agree with your position, you have stayed firm on it. Yet now
today, we have got Council members who are trying to act like we have never
had a resolution brought before Council the night of and not being able to discuss
it. Well, I think that Dave created that rule that as long as a resolution is brought
by the assistance of staff, it doesn't need any lengthy discussion and brought
before a work session. And, oh by the way, these things have been discussed. By
putting this off, it's just another way of delaying this. Kicking the can down the
road and making those poor people have to come out again and spend their time
to get Council to do just what they have agreed to do. Now, here again we talked
about the cost of this. We had people "I just don't know what the cost of the
easements would be I guess I need to read the resolution again because it says,
let's see, third paragraph, last sentence, a cost of no more than $375,000. Well, I
imagine that's what we have agreed to spend. I don't think that staff is going to
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go out and spend more than $375,000 for the easements, probably less than that
and yet this is what we have already agreed that we are willing to spend, so this is
just more delaying tactics for a council that has now flipped and desired not to do
this transaction like they agreed for the people and that's what their concerns are.
That council agreed. Again, the majority of Council agreed to do the access
road. The majority of council agreed to spend a certain amount of money to
build the access road and Council even at our last work session, the only main
objection that we had was we were a little uneasy about this process, we should
make it more public. Well now it's about as public as you can get, so your
concerns should be alleviated there. This makes it official by saying okay what
we just did tonight was a public process and this just says that we did that. Alls
this is doing is saying that this allows us to take a public process and let the
people know that we are looking into other options for purchasing this property.
As the town manager said, we don't have to accept those options, so you still
have the chance to say no. But the tactic of this council has been when I disagree
with something, I'll try to stifle even the communication of it so I don't actually
have to get to a serious vote. So let's try to stop it before we communicate on it.
Going down the road two more weeks. Come on. There is nothing that is going
to come about that. This resolution just says fine, let staff move forward. If they
have other things that they want to discuss in two weeks with a potential buyer or
some other idea, bring that forward and we can discuss at a work session, but to
delay this and make these people come out again it's just a shame. It's just a
shame. We talk about... I hear council members saying cost, about playing
games. Well, unfortunately, that's what is being played tonight is games. It's a
shame.
Hammler: In an effort to make a motion that is a direct effort to move
forward in a fundamentally productive way, which is counter to all the rhetoric at
the other side of the dais, I would like to make a motion to table this particular
resolution and initiate a new motion to direct the design of the access road.
Butler: Second.
Mayor: all right. Motions to table are non debatable. I don't know...
Jeanette, I need some guidance from you as to whether we can add on an
additional motion to Katie's motion to table. My sense is, it has to be a motion
to table.
Hammler: I was simply letting everyone know I was anticipating an
additional motion after we table this particular ill -fated one.
Mayor: All right. So, it is a motion to table, made by Katie, seconded by
Dave and all in favor, please say Aye.
Dunn: Point of order. Madam Mayor, when are we tabling it to?
Mayor: That was not part of the motion.
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COUNCIL MEETING June 28, 2011
Dunn: A motion to table is for tabling within this session.
Irby: He is correct.
Mayor: Thank you, Tom. Katie, did you want to defer? Motion to defer
to the next work session?
Hammier: Let me just decide here... based on my list.
Butler: you can still... a motion to table would be for this session. If
someone wants to bring it up under old business later, they can make a motion to
take it off the table.
Hammier: Postpone indefinitely, Madam Mayor.
Mayor: All right, this is now a motion to postpone indefinitely. Is there a
second?
Butler: Second.
Mayor: Jeanette, debatable or not?
Hammler: Yes, it is debatable. No it is not, you cannot amend it.
Irby: Are we postponing to a time certain or postpone indefinitely?
Mayor: She said indefinitely.
Irby: Okay.
Mayor: All right, it is debatable. So we get to get into another debate.
Katie, did you have any initial comments that you would like to make?
Hammler: I always find myself after the many times that Council
Member Dunn tries to find ways to get support for making any kind of
constructive any sort of progress for the town that he loses any support and I
think often of a Benjamin Franklin quote in terms of the things that are lost in the
long term... but the most important elements, he kept talking about delaying
tactics and flipping, to me the essence of this is truly the Council would be
flipping because ultimately we were on a course to acquire a house so that we
could save taxpayer monies once we sold the house and had the easements and
built the road. And, if the real goal is to affirm, which we all agree that we are
moving forward definitively on an action which is required by staff, then the most
direct route is, in fact, to commence on the design. This simply gives me the
opportunity... so, you know what? I have heard enough from the other side of
the dais. To me this is pure politics. It provides nothing productive. I think the
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COUNCIL MEETING June 28, 2011
town attorney, the town manager without saying feel very uncomfortable with
the town entering into what could be a very unprecedented set of negotiations
and I'd like to see us move forward in a direct path.
Butler: I agree. While I applaud the creativity of some members of
Council, this is not the first attempt with Linden Hill, that while it was sold as a
way to move forward quicker, is actually just as likely to move us backwards
faster. So, I think this particular resolution... There is issues with it. We need to
discuss it in a work session and we need to come up with the information that we
need in order to move forward and I'm... We were planning on talking about this
in a closed session with specifics but since that was taken off the table we can't.
So the next best solution is to go in and get more information and talk about it in
two weeks. Things.
Mayor: Marty, any comments on the motion to postpone indefinitely?
Martinez: well, you know... I just find it sad that people have to start
throwing accusations out there because other people on the dais do not agree
with them. Just because we don't agree with you, doesn't mean we flipped. Just
because there is a better way or a different way to approach this problem, that we
flipped. I'm trying to use all those terms... I will have to say, I do not know of a
project... There's 30 houses and Linden Hill? 36? I believe most of the projects
that we deal with are quite a bit larger than 36 homes, not that I'm taking that
away from you guys but the point is if we really want to show you our
commitment, I fully support what Katie wants to do. Let's go ahead and say staff
go forward with the design. Let's stop playing these real estate negotiation games
and just say that if somebody buys the house and wants to work with us fairly, we
will work with them. If not, then we will get that property one way or another. I
will tell you, I am not a fan of condemnation. I'm not a fan of taking people's
rights away... Property away from them but this is something that we need to do.
I'm not saying that condemnation is going to be cheap, but I don't think it's going
to cost $375,000. It better not. That would be something I'd really have an issue
with. I just wish that some people on this Council when they don't get their way
stop throwing stones and just take it. You know it happens. I will say, that I tried
my best as a Council member not to deal in generalizations and if I don't get my
way, I don't get mad or angry, it's just another part of the process and let's move
forward. Thank you Mdm. Mayor.
Wright: just to remind us, I'm not going to pile onto the debate but I will
remind us that we have two public hearings that we moved several resolutions
ahead of.
Mayor: Thank you, Kevin.
Dunn: it's easy to try to deflect blame from oneself and try to put it off on
somebody else but since we're quoting famous Americans, you can fool some of
the people all of the time, and all of the people some of the time but you can't fool
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COUNCIL MEETING June 28, 2011
all of the people all the time. I know that while these folks are seeing us here
tonight, they don't see us in closed session. I can tell you those closed doors and
outside the sunlight, it makes here is of everybody. But can now say that this is
because the Council member, and Marty you are directing it towards me, but if
you wanted directed towards anyone else, this isn't any Council members way
that they're getting. It's Linden Hill's way. I don't live in Linden Hill; I don't live
on that side of town. I don't hardly drive down S. King St. This will benefit me
next to nothing. So, regretfully if your support, if you're true support, Ms.
Hammler or is for these people, you would not be swayed by the way I voiced
things, because I can assure you anything you say does not change my
conviction. Again, this is disappointing that this delaying tactic is being used and
such a simple thing is being made into a major thing but it really shows for you
folks, you see the true direction of this Council. The only thing I can tell you is
remember that as they go lounge around trying to get elected this November or
next May or next November, whatever it is, that's where you'll have to go.
Hopefully... By the way I did have a question for Kaj. When it comes to design
work, would you rather that we had the decision made on this property before we
go into design work or would you rather still be going ahead and spending money
on design wondering if we are actually going to acquire this property?
Dentler: not dodging your question, but I think that's your decision. If
you want to spend money on design for a project that may not go forth or do you
want to... Well that's your call.
Dunn: well is it normally our practice?
Dentler: most projects that we design and build, obviously we know
you're totally committed to that. Obviously this Council is torn so it's your
decision on what you want us to do. That's not my decision to make.
Mayor: Katie, you get to close debate on this.
Martinez: I just want to say Kaj, there is a lot of capital projects where
you don't have the conveyances are other things but you have to move forward
on and we can get them later on, correct? Battlefield Parkway is one that we had
issues with.
Dentler: that's correct. But that's different than what... Councilmember
Dunn's question. May be I misunderstood it. When we move forward with the
project, we know that Council is committed to that project so we can move
forward and will design it and we will acquire the land rights as we go along. In
this case, we could move forward with design, spend taxpayer money, and
Council may not ultimately want to go forward with the project. It's really
whatever you wish us to do, we will follow that path.
Butler: well it wouldn't be the first project where that happened.
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Hammier: just based on the initial information, not only from the town
attorney and the town manager earlier this evening, in all likelihood going down
this path would simply take us more time, not allow us to move in a forward
direction to what we are ultimately trying to do which is move forward with the
design and construction of an additional access left turn for Linden Hill. Most
notably, councilmember Dunn, my tactics are to go speak to the residence and
find out that even they, although I won't name names, leadership with think that
this is not necessarily the path that the Council should take because it sets an ill
precedent for this Council based on ultimately the type of real estate transaction
that would not be very fruitful. So, it would cost us more, be more convoluted
and we need a more direct path because to your point, we have dragged the poor
Linden H ill residents for a resolution this evening.
The motion to postpone indefinitely was approved by the following vote:
Aye: Butler, Hammier, Martinez, and Reid
Nay: Dunn, Wright and Mayor Umstattd
Vote: 4 -3
On a motion by Council Member Hammier, seconded by Council
Member Reid, the following was proposed:
15. NEW BUSINESS
a. None.
MOTION 2011 -020
I move to direct the town manager to move forward with the design of an
access road for the Linden Hill community
The motion was approved by the following vote:
Aye: Butler, Dunn, Hammier, Martinez, Reid and Mayor Umstattd
Nay: Wright
Vote: 6 -1
14. UNFINISHED BUSINESS
16. COUNCIL COMMENTS
Council Member Dunn: had no comments.
Council Member Reid: I'm looking forward to the Fourth of July parade and I
hope that we will all have a nice, happy and safe Fourth.
Vice Mayor Wright: had no comments.
Council Member Martinez: Just briefly... Bellview Court is going to be walking
in the parade. Looking forward to everybody and we are going to have a whole bunch
of kids and stuff out there. I am looking forward to it. Everybody have a nice evening.
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COUNCIL MEETING June 28, 2011
Council Member Hammler: I just wanted to say thank you to Madam Mayor,
John and the entire staff who have been working hard with the bond rating agencies in
the last few days. Looking forward to hearing that update. Congratulations to Chick -fil-
A coming to Leesburg. We had the groundbreaking... Kevin officiated and did a great
job. In closing, I wanted to send my deepest condolences to former Mayor of
Purcellville, Bill Druhan's family. It is very, very sad news that we received this
morning.
Council Member Butler: I also wanted to echo my... I don't know if it's
condolences for having to sit through three days of meetings with the bond rating
agencies, that can't be very exciting... but I hope it all turns out well and looking
forward to that. The only other thing is I'd asked Jeanette... Maybe together we can
read through Robert's Rules of Order, Section IV because I am pretty sure that any
member of Council can divide the question if it is things of different subjects, which
tonight was. So, I would like to clear that up for the future.
17. MAYOR'S COMMENTS
Mayor Umstattd: John and I will let you guys know how everything went once
we have met with the final group of bond rating agencies tomorrow. But, I want to say
how impressed the two groups we have already met with have been with the council and
with your fiscal prudence as well as with the staff and today we got a very high
compliment which is Leesburg staff went way above expectations on providing
information and getting any questions answered very quickly. I think staff has done a
great job and we will bring you all up to speed after tomorrow.
Reid: I appreciate you mentioning that. I didn't want to bring it up. It is very
similar to if somebody doesn't want something on consent, I think that they should be
given the opportunity to divide and I just don't understand why that happened tonight.
We had it with the sidewalk and we had an opportunity.... We could have voted to
divide the question so... Robert's Rules says it has to be a vote.
Butler: No, it doesn't. If you go down there and read Section IV...
Reid: That was the rule from the chair...
Butler: And I understand that...
Hammler: I think we made the mistake twice because we made it during the
King Street project, the overall capital projects for the downtown. That was not....
Irby: I am looking at the sheet right here. It says the process. I am happy to
review the unabridged version.
Reid: Well, if the Council ever doesn't want to vote for something, I think just
like consent, give them an opportunity to divide. Let's not do that again.
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COUNCIL MEETING June 28, 2011
Mayor: We can always pass special rules that overrule Robert's Rules but I did
research it before tonight and I concluded the same thing that Jeanette did. But Dave, if
you have got another interpretation, I am happy to hear it.
18. MANAGER'S COMMENTS
Mr. Wells: Just a quick note, Madam Mayor and Council members, July 4
parade next Monday. If you would like to walk in the parade, or ride the trolley, be at
Ida Lee at 9:30 for the 10 o'clock parade. We will have the trolley there and we will all
be there.
In your folders, you have a copy of the updated status for the projects going
forward. I have included your updates from last evening... those are in and more
importantly of those updates, I did get the spelling for Chick -fil -A correct that Council
Member Butler brought up. I am sure he will note that when we get to that.
19. ADJOURNMENT
On a motion by Council Member Martinez, seconded by Vice Mayor Wright, the
meeting was adjourned at 11:28 p.m.
2011 tcmin0628
isten C. mstattd, Mayor
Town of Leesburg
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