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HomeMy Public PortalAbout2011_tcmin0913COUNCIL MEETING September 13, 2011 Council Chambers, 25 West Market Street, 7:30 p.m. Mayor Umstattd presiding. Council Members Present: David Butler, Thomas Dunn, Katie Sheldon Hammler, Kenneth "Ken" Reid, Kevin D. Wright, and Mayor Umstattd. Council Members Absent: Fernando "Marty" Martinez. Council Member Dunn arrived at 7:44 p.m. Council Member Reid left at 10:30 p.m., Council Member Dunn left at 10:42 p.m. Staff Present: Town Manager John Wells, Town Attorney Jeanette Irby, Deputy Director of Utilities Aref Etemadi, Director of Planning and Zoning Susan Berry Hill, Deputy Director of Planning and Zoning Brian Boucher, Zoning Administrator Chris Murphy, Deputy Zoning Administrator Wade Burkholder, and Clerk of Council Lee Ann Green AGENDA ITEMS 1. CALL TO ORDER 2. INVOCATION: Council Member Reid 3. SALUTE TO THE FLAG: Council Member Hammler 4. ROLL CALL: Showing Council Member Martinez absent. Council Member Dunn arrived at 7:44 p.m. 5. MINUTES UTES a. Regular Session Minutes of August 30, 2011 On a motion by Vice Mayor Wright, seconded by Council Member Butler, the minutes of the August 30 regular session were approved approved 5 -0- 2 (Dunn /Martinez absent). 6. ADOPTING THE MEETING AGENDA On a motion by Vice Mayor Wright, seconded by Council Member Butler, the meeting agenda was approved after moving Item l la to the Consent Agenda and addition of resolutions to appoint Commission and Committee members, by the following vote: Aye: Butler, Hammler, Reid, Wright and Mayor Umstattd Nay: None Vote: 5 -0 -2 (Dunn /Martinez absent) 7. PRESENTATIONS a. Resolution of Respect Bob Huber On a motion by Vice Mayor Wright, seconded by Council Member Reid, the following Resolution of Respect was approved: 1 1 Page COUNCIL MEETING September 13, 2011 RESOLUTION OF RESPECT Robert Ambrose Huber WHEREAS, Robert "Bob" Huber was born on September 29, 1926 in Cresson, Pennsylvania; and WHEREAS, he served his country in the U.S. Navy and was a veteran of World War II; and WHEREAS, he was a loving husband to his wife, Georgia, and father to five children; and WHEREAS, he served as a surveyor and cartographer for the U.S. Geological Survey with over 30 years of service; and WHEREAS, Mr. Huber was a long time contributing member of the Loudoun County business community; and WHEREAS, his involvement with Little League Baseball enriched the lives of countless participants over 25 years of volunteerism as a groundskeeper, coach, umpire and officer; and WHEREAS, Little League Baseball and the Town of Leesburg recognized his service by naming a baseball field at Freedom Park in his name THEREFORE, RESOLVED that the Mayor and members of the Council of the Town of Leesburg in Virginia extend their sympathy and respect to the family and everyone whose lives were touched by Mr. Huber; and BE IT FURTHER RESOLVED that this Resolution of Respect be spread upon the minutes of this meeting and that a copy be presented to his family. PASSED this 13 day of September, 2011. b. Proclamation Constitution Week On a motion by Council Member Reid, seconded by Council Member Butler, the following was proclaimed: PROCLAMATION Constitution Week September 17 -23, 2011 21 Pig COUNCIL MEETING September 13, 2011 WHEREAS, September 17, 2011, marks the two hundred twenty- fourth anniversary of the drafting of the Constitution of the United States of America by the Constitutional Convention; and WHEREAS, it is fitting and proper to accord official recognition to this magnificent document and its memorable anniversary; and to the patriotic celebrations which will commemorate the occasion; and WHEREAS, Public Law 915 guarantees the issuing of a proclamation each year by the President of the United States of America designating September 17 through 23 as Constitution Week. THEREFORE, PROCLAIMED, by the Council of the Town of Leesburg in Virginia the week of September 17 through 23, 2011 as Constitution Week in the Town of Leesburg and further ask our citizens to reaffirm the ideals of that the framers of the constitution had in 1787 by vigilantly protecting the freedoms guaranteed to us through this guardian of our liberties, remembering that lost rights may never be regained. PROCLAIMED this 13" day of September, 2011. c. Proclamation Hispanic Heritage Month On a motion by Council Member Reid, seconded by Council Member Butler, the following was proclaimed: PROCLAMATION Hispanic Heritage Month September 15 October 15, 2011 WHEREAS, September 15 through October 15, commemorating the anniversary of independence for seven Latin American countries, is designated by the Federal government in 1988 as a time to recognize the achievements and contributions of Hispanics in this country; and WHEREAS, this year's theme is "Many Backgrounds, Many Stories, One American Spirit and WHEREAS, the significant achievements of the Hispanic community have and continue to shape our nation's history; and WHEREAS, local cultural institutions are sponsoring various events celebrating Hispanic heritage and culture through October; and WHEREAS, Leesburg's Hispanic community continues to make significant cultural and economic contributions to our Town; and 3 1 P COUNCIL MEETING September 13, 2011 THEREFORE, the Mayor and Council of the Town of Leesburg in Virginia hereby proclaim September 15 October 15, 2011 as Hispanic Heritage Month and encourage all residents to join in recognizing and preserving the contributions made by Hispanic Americans. PROCLAIMED this 13` day of September 2011. 8. PETITIONERS The petitioner's section was opened at 8:05 p.m. John Mileo, 19470 Promenade Drive, Lansdowne, asked that the current Holiday Parade be renamed "Christmas Parade He extended his best wishes to Council Members Butler and Reid in their campaigns for higher office. He stated he read that the town attorney had concerns that changing the name to Christmas and Hanukah Parade may be perceived as not being "inclusive of all groups He stated this line of thinking is preposterous. He stated changing the name to give due recognition to the actual holiday name, whether it be Christmas or in conjunction with Hanukah, should not be construed to be anything other than what it is, recognizing and respecting the proper name of the holiday being celebrated. Julie Rogers, 825 Tall Oaks Square, introduced her daughter, Amber. She stated Amber was struck by a hit and run driver on August 31. She stated while she understands that the proposed traffic light may not be able to be installed before 2014, she hopes that something can be done as a temporary solution until a light can be installed. She stated her daughter was lucky as the impact only gave her daughter a deep muscle bruise. She noted that the local newspaper contained erroneous information. Joyce Gerber, 112 Catoctin Circle, NE, stated she opposes the barrier being taken down at the end of Catoctin Circle at this time. She stated there are adults, children and animals that cross the street every day. Stephen Campbell, 219 Catoctin Circle, NE, stated he would like the barrier to stay in place. Paul Kreingold, 207 Catoctin Circle, NE, stated he is speaking in response to a petition asking Council to open up Catoctin Circle in the near future. He stated since 1995, there was a promise until the entire project was completed, Catoctin Circle would stay closed for safety reasons. He stated it seems to be capricious at this point to abandon this policy after all this time. He stated there was a tremendous amount of dust and disruption associated with the improvements but the town did a great job on this project. Rob Montgomery, 121 Woodberry Road, NE, presented Council with a petition signed by 100 citizens to open Catoctin Circle. He stated for 16 years, Woodberry Road has had the traffic. He stated the planned closure of Woodberry for improvements would leave the unimproved Prince Street as the only connector between Edwards Ferry 4 1 Page COUNCIL MEETING September 13, 2011 Road and North Street. He stated the 100 signatures are primarily from Prince Street, Woodberry Road, Edwards Ferry and some from Brown's Meadow. He stated everyone likes people keeping commitments but over the years, as circumstances have changed, barricades have been taken down. He stated Woodberry and Prince have become major traffic channels between North Street and Edwards Ferry. He stated their belief it would be in the greater good for the majority of residents to remove the barricade now since Catoctin Circle is completed. Lida Henderson, 115 Prince Street, NE, stated that Prince Street takes the brunt of the traffic. She stated she has requested speed bumps or stop signs to get people to slow down. She stated tax dollars did a great job of widening Catoctin Circle and the roundabout is phenomenal. She stated that Catoctin is one of the streets that goes through the town and should be open to mitigate the traffic problems occurring on Prince and Woodberry. Tom Hinders, 21 Linden Hill Way, stated his continued support for the previous Council votes on providing the access road for Linden Hill. Sondra Camp, 31 Linden Hill Way, stated she is tired and is ready to have a decision made. Lawrence Schonberger, 212 Prince Street, NE, stated he is in favor of opening Catoctin Circle. He cited the Town Plan, Transportation Element, Objective 3 as stating "To develop and expand the town's transportation system in a manner that does not adversely impact community and neighborhood integrity He stated that no one anticipated this would take 16 years and the original agreement was that no roads would open unless all roads opened. He stated slowly the barricades have come down for various changing circumstances and it is time to consider the next logical alternative to deal with the closing of Woodberry Road. Terri Azie, 104 Elkridge Way, NE, petitioned the Council to rescind the resolution to keep the barricades in place. She stated the road should be opened as there are five subdivisions located north of the barricades with a lot of families doing a lot of errands. She stated the barricade blocks their access to businesses in Leesburg. She stated this is a public road, paid for with public funds. She submitted emails from neighbors who would also like Catoctin opened. Brian Caney, 412 Blue Ridge Avenue, NE, stated he is at the corner of Catoctin and Blue Ridge and can see cars zig- zagging through all the time. He stated convenience of errands is not as important as speed. He stated he would prefer that people have to zig -zag because it slows them down. He noted that all the improvements have not been completed as there are still speed tables to be installed, stop signs installed, and a possible light at the intersection of Edwards Ferry and Catoctin Circle. He stated those things need to be resolved before any debate should occur. Gigi Robinson, 207 Prince Street, NE, asked Council to open Catoctin Circle. She distributed a timeline and a proposed resolution. She noted the original resolution 5 1 i) a g COUNCIL MEETING September 13, 2011 closed almost all of Lowenbach including Mayfair, sections of North and Marshall. She stated the resolution made a separate section to indicate when connections to the streets could be approved "all connections to North Street referenced in alternative 1, and the opening of North Street and Marshall Drive as a through streets, respectively, shall all occur on the same day". She stated starting in 1999, the barricades started coming down and North Street and Marshall became through streets without any improvements to these streets because trucks were having difficulty turning around and improved access was needed for emergency vehicles, police, trash collection, road maintenance, access by citizens, improved street sweeping and snow removal. She noted in 2004, the Council established the Lowenbach Ad Hoc Committee which recommended improvements to the neighborhoods including a three way stop at the T- intersection of Blue Ridge and Prince Street; however, it has never been installed. She asked that the one year warranty from Tessa be used to test Catoctin Circle with actual traffic. Raymond Jones, 33 Linden Hill Way, stated his neighborhood has been coming to the Council for almost two years to fmd a remedy for the harm that will be caused by the widening of Route 15. He stated the access road is not the neighborhood's first choice, but is the only one that can be supported by the engineers. He stated recent opposition to this has made conflicting claims that Linden Hill Way is too small for a large expenditure of town funds, but will also cause severe traffic congestion to Country Club. He stated the plans for the access road will add an extra turn lane for Country Club. Michael Merrin, 305 North Street, NE, questioned what the metrics are for the expected traffic once Woodberry Road is closed and Catoctin is opened. He stated all he has heard are observations and actual numbers are needed before a decision can be made. Wendy Overton, stated this was a complete surprise to the entire Lowenbach Ad- Hoc committee, of which she is a member. She submitted a letter from a neighbor who does not want the road opened. She stated the project is not complete and taking down the barrier will unleash traffic. She stated opening the road will increase traffic by 2000% based on the town's own estimates. She stated there are no connecting sidewalks in the neighborhood. She noted that there are children that have to walk to the bus stops. She stated she understands the convenience factor, but for the safety of the neighborhood, the barricade needs to remain until the improvements are complete. She requested that Council not be swayed by the need for convenience of others. Rufus Campbell, 216 Catoctin Circle, NE, stated this agreement was made in 1995 so that the improvements could be completed in the entire Lowenbach subdivision. He stated people on Prince Street want the barricades to come down on Catoctin and the estimate is 5000 cars per day to come down Catoctin. He requested a traffic check on Prince Street and Woodberry to fmd out how many cars use those streets every day. He stated cars used to do 50 mph on Marshall before the speed bumps were put in. He expressed concern over the corner stakes for the property lines and the slope of the driveways. 61 Page COUNCIL MEETING September 13, 2011 Peter Commanduras, 508 Edwards Ferry Road, NE, stated he was involved in the Ad -Hoc Committee and is representing that committee. He noted that Lowenbach was built in the 1930s and set out as subdivisions were at the time. He stated the improvement project was meant to bring the streets up to current standards. He stated the narrowness of the streets have created some problems. He noted that currently only Phase 1 of the project is complete and in order to complete Phase 2 and 3, the construction crews will be hampered and endangered by traffic. He stated the current agreement was made by the neighborhood, town staff and Council. He stated if Council does not act upon the recommended advice of ad -hoc committees, then don't have ad- hoc committees. He stated one street should not be forced to bear all the traffic. Larr Kelly, 404 Edwards Ferry Road, NE, stated currently between Harrison and Mayfair, there are two substandard streets serving the north /south motion Prince and Woodberry. He stated closing Woodberry will push all the traffic onto Prince. He stated $1 million has been spent on Catoctin Circle to make a basketball court for someone. He stated safety is enhanced in a grid pattern. He stated he understands the agreement from 1995; however, other streets have been opened so the agreement has already been broken. He asked that the load be shared by opening the road. Dana Eddy, 114 Catoctin Circle, NE, expressed her sympathy for the others on Catoctin. She stated she also sympathizes with those on the surrounding streets; however, her biggest concern is that Catoctin is not completed. She stated her experience has not been positive with this construction project. Further, she stated her biggest concern is the four -way stop on Catoctin at Edwards Ferry because people do not follow the four -way stop laws. She stated without speed bumps, proper signage or something to make people respect the four -way stop, there will be problems at that intersection. She stated this is not the proper time to open this road and the project has not followed through in the timeline that was originally proposed. She stated she is fine with the barricade coming down, but not at this time. Doris Kidder, 139 Woodberry Road, stated the Planning Commission has discussed the four -way stop at Edwards Ferry Road. She stated a survey done showed no accidents in 20 years. She stated she does not think it is fair to have some people to have private parking and basketball courts and other people to have traffic. She stated a community should share the wealth and the problems. She stated it does not make any sense to have the smaller streets bearing the brunt of the traffic. Joyce Gerber, 112 Catoctin Circle, NE, stated she has lived in her house on Catoctin Circle for 50 years and it was one of the houses first houses there. She stated the barrier has been up all that time. She stated she does not think the street should be a freeway. She stated she has sat on her porch and watched the cars speed up the road. She stated the police department only sits there to catch two cars. She stated the barrier should remain because they don't want speeders on their street. She stated that Catoctin Circle is not finished. 7 1 P COUNCIL MEETING September 13, 2011 Mary Barnes, addressed the question of whether Linden Hill is worth an access road. She stated if they were petitioning for a stoplight, no one would question the cost but the stop light was rejected. Council Member Hammler: Pardon me for interrupting. There were a number of emails that we received. Several citizens had specifically asked for their letters to be read on various topics. Given the number of petitioners, I don't know how you, Madam Mayor, would like to handle that. Perhaps they could just be addressed in the minutes. There was a Mrs. Tarkington regarding the Linden Hill issue. There was a Ms. Elvin regarding opening up Catoctin and many on both sides of the Catoctin issue. If I may, one other issue... last night, there was not a quorum for the work session. The Vice Mayor, myself and Dave Butler were the only ones unfortunately at the work session, but I was planning to bring under new business, bring up the Catoctin issue at the next work session. So, I would appreciate being able to add that either under new business tonight, but ensure that we could bring that topic back... an update from the staff regarding the actual state of the improvements and what has changed relative to phasing that project. Mayor: Very good, Katie. Thank you. I think given that we have a public hearing. I think all members of Council have seen the emails. So, we won't be reading them unless all of Council wants to, but we do have a lot of business and we have some citizens who are here tonight who are waiting for a vote. So, I think we should probably get to it. The petitioner's section was closed at 9:14 p.m. 9. APPROVAL OF THE CONSENT AGENDA On a motion by Vice Mayor Kevin Wright, seconded by Council Member Ken Reid, the following items were moved for approval as part of the Consent Agenda: a. Supplemental Appropriation for the George Mason Enterprise Center Leesburg RESOLUTION 2011 -112 Approving a FY2012 Supplemental Appropriation in the Amount of $236,764 for Nine Months Rent for the George Mason Enterprise Center Leesburg b. Supplemental Appropriation for the Recreation Outreach for Community Kids (R.O.C.K.) Program for a Donation from Leesburg Presbyterian Church RESOLUTION 2011 -113 Approving a Supplemental Appropriation from a Donation of $400.00 from the Leesburg Presbyterian Church c. Authorizing the Town Manager to Sign a Special Exception Application for Dominion Power 8 1 F' a c COUNCIL MEETING September 13, 2011 MOTION 2011 -029 I move that the Town Council authorize the Town Manager to execute a special exception and land development (subdivision) application with Dominion Virginia Power with the understanding that the town can withdraw its consent if agreement cannot be reached on the property acquisition d. Initiating Amendments to the Town Code to Conform to Changes to the Virginia State Code RESOLUTION 2011 -114 Initiating Amendments to Various Articles and Sections of the Leesburg Town Code Addressing Minor Changes, Making Corrections and Clarifications as Necessary e. Acceptance of Grant Offers for Runway 17 Safety Area Land Acquisition MOTION 2011 -030 I move to authorize the Town Manager to execute the acceptance of grant offer from the Federal Aviation Administration for AIP project 3-51 -0027- 036 -2011 (Improve Runway 17/35 Safety Area Phase One and Land Acquisition Phase Two) f. Adopting a State Mandated Water Supply Plan Authorizing a Public Hearing MOTION 2011 -031 I move to authorize the Town Manager to advertise a public hearing for adoption of a State Mandated Water Supply Plan as soon as practical The Consent Agenda was approved by the following vote: Aye: Butler, Hammler, Reid, Wright and Mayor Umstattd Nay: None Vote: 5 -0 -2 (Dunn /Martinez absent) 10. PUBLIC HEARINGS a. Approving TLOA 2010 -0005 Amending the Zoning Ordinance for Temporary Uses in the R -1 District The public hearing was opened at 9:17 p.m. Wade Burkholder: The central question surrounding this text amendment is should the zoning ordinance be amended to add "fair" as a temporary use with minimal use standards in the R -1 single family residential zoning district. By the way of a little bit of background, the town has been approached by the Aurora School and ARC of Loudoun to operate a temporary fair as a fundraising event on weekends throughout the month of October. This facility is located within the 91I, agc COUNCIL MEETING September 13, 2011 R -1 single family residential zoning district and they are operating under special exception TLSE 2008 -0011, which was approved in December of 2008. Per the zoning ordinance, such uses are considered commercial and institutional uses. For example, they have the school of general education, they also have the child care center on this site, so those are considered commercial and institutional uses under the zoning ordinance within the R -1 zoning district by special exception. The R -1 district is a predominately single family detached district with a one acre lot minimum. They can have certain permanent non residential uses either by right or through special exception approval. We do have at least five commercial activities that are allowed by right or special exception in the R -1 district. Such uses as child care centers, as I mentioned, and recreation facilities. There are the opportunities for places of worship to locate in the R -1 district by special exception and fire and rescue facilities are by right uses in R -1 single family districts. Though predominately a single family detached residential district, you do have those other uses that can be approved but aren't residential in nature. For zoning purposes, a temporary use is a use that is established for a fixed period of time with the intent to discontinue such use upon the expiration of such a time and does not involve the construction or alteration of any permanent building or structure. Currently, the zoning ordinance does not permit a fair as a temporary use in any residential zoning district. The ordinance does permit things like way side stands, Christmas tree sales and other similar temporary uses. This time of year, you will see pumpkin sales or, you know, the decorative corn, things like that. So, those uses are along the lines of what is currently permitted by ordinance. Now, on March 8 of this year, Town Council initiated a zoning ordinance text amendment to consider a carnival, festival, and /or fair as a permissible temporary use within the R -1 district. The Planning Commission on September 1 held a public hearing to consider this request to amend the zoning ordinance for those three uses. Upon deliberation and discussion, the public hearing was closed with the planning commission and the planning commission recommended denial of TLOA 2011 -0005 by a vote of 6 -0 -1 based on the following major reason. That reason was that the ordinance as proposed was too broad because it would permit carnivals, fairs and festivals in the R -1 zoning district without providing sufficient controls that ensured that these uses would not become burdensome to neighbors and the town. The key question, or the key concept that the planning commission was looking at throughout their public hearing was considering what the potential impacts these uses could have within the R -1 district due to the uses, nature, design and location. Upon using the standard, the planning commission identified in more detail some of the parts of the proposed amendment that gave them the most concern. The first being that the carnival use tended to imply more mechanical rides such as ferris wheels, merry go- rounds and those sorts of mechanical rides that might be of more of a disturbance to the neighborhood than really what they were comfortable with. A second reason was that the carnival, festival and fair uses have never been permitted in any residential zoning district before and they felt that these uses may have unintended consequences and therefore we needed to step back and look for a smaller scope to fit what the proposed use at the Paxton campus was 10 1 Page COUNCIL MEETING September 13, 2011 actually going to be. There was concern regarding the lack of notice provided to the surrounding neighborhood of the public hearing. As you know, for zoning ordinance text amendments, we do not send individual neighborhood notices. We post the property and we put legal notice in the newspaper, but individual homeowners are not notified and they were concerned that the neighborhood wasn't getting a chance to address this request. The written notice, which is condition 12, which I will get to in a minute, implies that the neighbors have a say in the issuance of any temporary use permit, where the intent is not the same type of notice that is provided with a special exception and rezoning applications. The permit for a temporary use is not a public hearing, so members of the planning commission were concerned that would get the neighbors hopeful that they might have a venue in a public hearing setting where they could address concerns that they might have and those sorts of things. The second main area of the planning commission's analysis is that the features of such events, especially the noise and lighting could have negative impacts on the surrounding residential uses. More specifically, the concern was over the ending time of 11 p.m. was too late of an ending time for a residential neighborhood. The third part of their analysis states that the draft ordinance placed a burden on town resources to ensure that events go as planned. More specifically, the stated concerns were that staff would not be able to be present on location at all times to ensure that the event was being ran per the use conditions of the actual temporary use permit. Additional comments that came out of the Planning Commission public hearing is that the planning commission recommended exploring special use permits or special exceptions as a possible way to allow such activities in the R -1 zoning district. They also suggested possibly limiting these events to be held only for nonprofit 501c(3) organizations. Staff checked with the town attorney and on her advice, it was recommended that we not limit it to these organizations as it would be too limiting of a factor as to who could participate in such a use. So, that was a suggestion that they made but is not included in tonight's draft ordinance. Several commissioners did express support for the proposed Paxton use, but could not support the amendment as it was presented at the public hearing. As a result, between the first and tonight, staff revised the draft ordinance to address the concerns of the planning commission and we provided further controls and limited the proposed temporary use to only a fair. So, we took the carnival use out and we have taken the festival use out and limited the use to simply a fair as well as adding some of these other safeguards to protect any neighborhood concerns. More specifically, as I said, we deleted carnivals and festivals. We added a condition prohibiting outdoor mechanical rides so there will be no ferris wheels, no merry go- rounds, any of those nature. We added a condition limiting outdoor performances to no later than 7 p.m. and we limited... there was a slight change in the hours of operation in that the fair could begin at 10 a.m., but any performance activity that is being held from 10 p.m. to 11 p.m. must be in a fully enclosed building. So, there won't be any noise concerns or anything like that after 10 p.m. So, we kind of addressed that noise concern in 11 1 t} g COUNCIL MEETING September 13, 2011 that manner. We added a noise condition that requires compliance with the town code and zoning ordinance and limits the use of unenclosed mechanical equipment to before 7 p.m. We have limited sound amplifying equipment to no later than 7 p.m. and we have added a revocation provision to clarify that a permit for a temporary fair may be revoked early for noncompliance with any of the conditions that are put on the permit. So, we have reached the amended proposed use conditions. Very quickly, I will run through these. The first one being existing uses. A fair can only be... a temporary use permit for a fair can only be issued upon a parcel with a preexisting business or use on it. Reason being is the facilities are already there. There is an expectation of activity on that lot. Different expectation for a lot that may be vacant. A neighborhood may not expect this fair to come in if it is a vacant lot. They can also combine the fair use with the existing facilities in some manner to accommodate the indoor performances and that sort of thing that we talked about. Duration, three consecutive days five times a year. You can combine that into 15 straight days. We provide flexibility in the permit to however many days in a row you need it or etc. So, it can be used in any number of ways there. Location no such activity shall be located closer than 300 feet to a residential use. This is a slide of the Paxton property. You can obviously see the residential uses surrounding the property. Approximately the 300 foot... anyway, I wanted to show you where the 300 foot line from the residential use was going to be, but... Dunn: Can you take your time... I would like to see that. Burkholder: Yeah, I will see what I can do here. Reid: This is just a housekeeping question. R -1 single family district, do we have to reference the H -1 in this case because this property is in the H -1 or no? Burkholder: No, because this being a temporary use we wouldn't need to go that far. The zoning district would be sufficient. Pretty much the center of the screen is the mansion house. The 300 foot line comes right about up to this area here from the structures down here. Then, you're drawing sort of an angle parallel to that property line at 300 feet and continuing on up. Then, it will cut across the field out to Catoctin Circle. Dunn: It looks like your line might have been a little close on the left side, but basically you are looking at the larger field area... Burkholder: Right, then the main mansion house and some of those barn buildings would still be the area. The fourth condition, again I mentioned there are no mechanical rides. I mentioned the fifth, outdoor performances shall not be permitted after 7 p.m. Performances after that time must be in a fully enclosed building. Off street parking and access, adequate provisions must be made for off street parking. Safe ingress and egress must be provided as shown on a parking 12 1 P COUNCIL MEETING September 13, 2011 plan and approved by the zoning administrator. Specifically, in this Paxton case, they will not be using the Wildman entrance. Any ingress /egress will be from Catoctin Circle. I mentioned the hours of operation under 7. Noise, again, we are stating that you have to be compliant with the town code and the zoning ordinances specific sections. Sound amplifying equipment, we are following the town code's language and it says use of sound amplifying equipment shall be registered with the town manager at least 48 hours in advance of the use. Such equipment shall not extend past 7 p.m. on any day as part of a fair temporary use permit. Then, the illumination plan, we are just making sure that there is not excessive glare onto the residential neighborhood. In this particular example again with Paxton, they went through the special exception application. They already have a lighting plan on file with us. We know where they are going to be setting up some lighting for their parking area. We do not see any concern with the lighting in that particular case. The revocation permit, again this is language that is already in the zoning ordinance for things like home occupation permits, if we would find that there is a violation of the permit, this just says the zoning administrator has the right to revoke the permit and the shall therefore stop. So, we just added that again to further address some of the concerns of the planning commission. With other potential locations in Leesburg, we know the R -1 district up where the Paxton campus is. We also have in the southeast...I'm sorry, southwest part of town, Evergreen Elementary, Evergreen Mills Elementary and then Simpson Middle School. Those could be potential uses or parcels for a fair as well. You could eventually see something on the Meadowbrook property that might allow the fair to happen and then the property on Route 7 heading east out of town. I want to make clear that the R -1 of Ida Lee Park, these temporary uses do not apply to public property. They are only permitting this use on private land for zoning purposes to protect the health, safety, welfare of any residential district. Any event that goes on on any park land or at Ida Lee, the community events committee, which is operated through the parks and recreation department sets those permits up. That is primarily.. like I said, any kind of fair or event they would have at Ida Lee on any public property would be handled by them and not this permit. There are a few other pieces of land out there that you might see this use on at some time in the future. Just a brief run down of a few other jurisdictions. These temporary use regulations vary per jurisdiction per event type. You can see in Herndon, they allow four days with a maximum of three occurrences per parcel per year. Loudoun County, within a year, they will issue 10 temporary nonexempt special events, maximum duration of 14 days per event per parcel. Clarify what a nonexempt special event is. They draw the line at the expectation of 100 guests or more. So, if your event is thought to be generating 100 or more guests to the event, then they would require the special event permit. Manassas, again no more than three such permits shall be issued for the same lot during a calendar year and they rely on some language that gives the zoning administrator's review a lot of consideration there. One other real quick amendment is the section 9.5.2 Temporary Use uses in the residential districts. And that's to add (4) Fair in the R -1 single family residential district. Staff is recommending approval of the text 13 1 Page COUNCIL MEETING September 13, 2011 amendment adding a fair use as a temporary use with the proposed stated minimal use standards in the R -1 single family residential zoning district as presented in your staff report this evening. I am happy to answer questions at this time. Reid: Since you are all in the room here, I want to congratulate you all on your VML award. I want to congratulate you for your VML award on the process improvements. Wright: A couple of questions. So, Wade I relooked through the staff report and your presentation. Where are we defining what a fair is? Burkholder: A fair... being defined as an event usually for the benefit of a charity or public institution including entertainment and the sale of goods. report? Wright: Is that definition in the ordinance, or was it only in the staff Burkholder: It was in the staff report on page 5. Wright: Where in the ordinance does that appear? Does it appear anywhere? Burkholder: It actually currently does not. Wright: Is that a problem? Burkholder: Certainly, something that could be added; however, it would not be possible to add that currently because we did not legally advertise changes to article 18 Definitions. Wright: So, what is the difference between what you just defined as a fair and what I have seen happen until they moved out of town at Loudoun Country Day School every year? All of the schools that exist within these R -1 districts that have what they call fairs, that sound very close to your definition and they have big blow up bouncy houses and climbing things and everything else... have they been... what I am failing to understand so I'll cut to the chase of my question. Why do Paxton or anyone else who has this use need a permit at all? Where it seems to me we have been allowing these by right at all of the schools and Paxton is basically a private school, I believe, for years? Burkholder: It is the duration, I believe, of the actual event going the entire month whereas many of the schools may have it for a day or a weekend. This... Wright: Okay, so my follow -on question to that point is if you think of some of the concerns be it the noise generation or stuff like that.... I know the 14 I Fage COUNCIL MEETING September 13, 2011 high schools are kind of a bad example because the high schools are in R -E, which is a more narrowly defined district, but they make a lot of noise every Friday. Right now, Tuscarora every night because they are the only ball field that is playable. Is their use determined to be ancillary to the school use? They generate noise until 10 p.m. because that's when the noise ordinance tells them they have to stop. Burkholder: To the degree that noise is expected... I think when you get into the R -1 district, this type of use is not expected so we are trying to provide safeguards for the residential component of this district while still permitting an event of this length to occur. Wright: I guess my challenge there is one of your examples you gave of where we are not going to worry about the permit is Ida Lee and I assure you that they have a lot more than 100 people show up for a lot bigger fair than what is being talked about here and it is in an R -1 area, but the use is a park so people are anticipating community gatherings to occur at a park just like at Loudoun Country Day folks would kind of figure out when to avoid it. Especially the neighbors, they kind of knew, okay X weekend in October, don't hold a backyard party because all the parking is going to be consumed by Country Day's Fall Fun Fair similar with the other schools. I guess I am just struggling as to why we define this as something we need to do. Here is my thing, if Council took no action and we didn't pass this and they had over a period of consecutive weekends an event that is similar to a fall fun fair, what exactly are they in violation of? Boucher: I think one thing that is important to remember here, is this is not a normal school activity. You are inviting the general public out to as late as 11 o'clock to engage in something you wouldn't normally think was a school activity and they are not doing it once, they are doing it 15 times. So, if you don't classify this as something we might want some control on, I think what you would be saying is any public or private school can do any type of event at any... basically between dawn and 11 o'clock without any regulation. And it's about expectations. One thing when we look at the R -1 district, we do regulate uses that are there and one of the things we regulate pretty specifically are commercial uses. In this case, if you take the... schools are expected. I think that is one thing, if they did something where it was like that during the day for the school kids, etc., I think we would say fine, go to it. What is different here is you are inviting the general public over a period of nights to come to an event that, again, you normally wouldn't associate with a school. They are doing it as a fundraiser. Schools do have fundraisers. But, I think in this particular case, it's the hours of operation and the type of event... the type of fundraiser. I think that's what distinguishes it. The concern of staff is if you don't regulate something like this, then you just told the people who live next to Paxton or any other school in town that they can do any commercial venture they want as long as it raises dollars for the school and they can do it in these long hours. I think that our experience has shown, when you have things like that, you can get complaints. I would say, 15 1 Page COUNCIL MEETING September 13, 2011 Councilman Wright, people do have an expectation, so they do kind of say, all right, they are doing their fund raiser, I have got to adjust my day. This might be different for people. You know, it's October. I like to be outside and oh, they are having that every day, every weekend in October. That's one reason there was the notice in here to people, that's to give them an opportunity to adjust their schedules because it's not the normal thing they would expect. Wright: That last question I would ask for now, I may have some follow ups. In some of the restrictions we put in to address the planning commission area, the one that jumps out at me is not as much the hours limited but the outdoor performances and noise limited to 7 p.m. The flag that raised in my mind is if I am hosting a wedding in my backyard and I happen to live in the R -1. I'm sorry, I couldn't come up with a better example. I can make noise until 10 by law, so we are actually putting something more restrictive on the use. I just worry about the precedent that sets because that basically supersedes the noise ordinance. So, by them getting a permit for something that I am still not sold that we need a permit for, but we will get past that. But by them getting a permit, they have actually lost a right of using their property that they would have otherwise had through the noise ordinance. Mayor: Let me address one of the Vice Mayor's concerns. I tend to agree. I asked John initially why do we even need to do this. But the thing is if we don't pass this tonight, then it goes back to an administrative decision and they will be told no, they can't do it. They need to move forward. We can certainly tinker with this, but Brian did sit down with Steve and with Scott and try to determine what they needed this year. I know that Scott didn't get a chance to look at the proposed ordinance until tonight and I would be interested to know if there are any comments from Jennifer, Scott or Steve on it, but I really want to see us get this through tonight so they can go forward this year and then we can revisit it if we need to well before next year's event. Boucher: I will say one thing about the time, we did discuss it with them and it kind of would fit their program. Part of this proceeding with caution, because this will happen on so many consecutive weekends, there are other places this could occur so we were trying to... proceeding with caution. If this is successful, hopefully none of us hear any complaints about noise through this, then it is something that certainly experience would tell us may be able to be lightened up in the future. The thing to remember, it is less hours than you would normally get, but it is a commercial venture and could have incredibly large amounts of people going there. And again, think this could happen on a few other lots in town, potentially. So we are looking at the picture in total and proceeding cautiously at the moment. It does seem to fit what their program is at the present time. Wright: I lied. I have one more question. So, whoever wants to address this from a precedence standpoint... the only other thing I am getting stuck in my head is the things that we have allowed. So, the example with the schools, their 16 1 Pag COUNCIL MEETING September 13, 2011 fairs they have been doing without having to do a permit. To even the churches that will shift services outdoors for easter, that they get permits for their tents and all that. With the definition not being in there, which I know we can catch up to, from a zoning administrator standpoint or a former zoning administrator standpoint since you made the mistake of standing at the mic too long, how... do as the Mayor suggests and pull this through to address the current issue, how can we be assured that we are not redefining uses that have been allowed by right as something that is no longer by right and asked to comply with this. Boucher: That's actually a good question because we were not looking to make those things qualify as temporary uses. I think the thing here, and if you need to distinguish it, is perhaps the unusual nature... the commercial nature and something that is not normally associated with a school. Fundraisers are, but I would say that ones of this type are not traditionally associated. I think that is... I think if I am the zoning administrator making the call with this now, that's what I am basing it one. What I'd say, if you are going to say Frances Hazel Reid, you want to do a little carnival, fair out there, the kind of normal thing you do every year, it has all the students there, it has the parents there... that's not this. I would use that as a distinguishing factor. Wright: So, it's kind of a large, general public, commercial event. That's kind of one of your flags. So, if I'm at church and I'm holding an outdoor service for Easter, that's not a commercial event. Boucher: yes, it's not saying parents, this is our day, we want you all to show up with the kids and we are going to do this. It's actually really aiming at people who don't go to school here as a fundraiser for it. That commercial aspect of it I think is what really differentiates it. Hammler: I'm not sure who to ask this question to but my understanding is there was something very similar last year. Certainly, there was the haunted house at Paxton. Did we receive complaints? Was it in violation last year and therefore it required some update to the ordinance this year? Burkholder: In fact, it was a violation last year in the fact that they did not receive a temporary use permit. To my knowledge, we did not receive any complaints for noise or anything such as that, but the actual use was in violation last year. Hammler: Well the complaints I heard, because you probably saw my house on the outside there. It was way too scary for the little kids. But, I know everybody really enjoyed it. I guess I'm still having a lot of the issues that Kevin was in terms of I mean I wouldn't consider the definition of a haunted house as a fair as an example. When I started thinking about what a fair is I was thinking that had more to do with daylight hours and it seemed excessive from a regulation perspective in terms of the added illumination requirement and how you were going to enforce that and the noise and okay indoor versus outdoor. 17 1 Page COUNCIL MEETING September 13, 2011 Well, does that mean that if you have four flaps around a tent, you are going to throw that up and hypothetically that could become indoor. Why couldn't we keep it as simple as the Manassas definition and now I always get concerned when Council gets asked well, sorry, we can't go back and redefine the advertisement. My best example is what happened when we needed to float a bond for utility system and not having another public hearing as an example. But, I certainly understand Kristen's point regarding not holding up this year's fair; however, in reading this and just seeing a lot of discrepancies, I do feel uncomfortable with generally proceeding as is at this point, so I'll continue to listen. Butler: I guess since the little kids found it too scary, maybe we should say that the outdoor activity is only permitted from 7 -10 p.m. I'm okay with the 7 p.m. because for some of the other events that we talked about, they are basically one shot deals and I think that people have a different expectation for a one shot deal... oh yeah, the neighbors or the school or something, they are having a wedding tonight. It's not normal, but hey we will go with it, but if somebody has something every weekend for a bunch of weekends I think the expectations of people are different and so I think we need... I agree that we need to set some level of expectation. I'm okay with adding in the definition in tonight. I don't really care what section it's in. I understand the concern about not advertising Section 18 or whatever it was, but I think if I went around and took a poll and said how many people did not come to the public hearing tonight because they didn't realize we were going to add a definition to Section 18, the answer would probably be zero. Hammler: But legally, we may not be able to do that. Irby: You are perfectly fine in adding the definition. Hammler: That would narrow it considerably, if we could find a haunted house program... Butler: So, whatever happens, I would like to make sure that I would... I know I'm not making an official motion, but I would like to make sure we add the definition into that. I have every expectation that if we vote on this ordinance tonight with the definition, that Chief Price will not come in immediately and drag us out of the room. But, I do think this is necessary and I do think it's good. I applaud the planning commission for coming up with their objections so we narrowed it down to something that is not quite so big as it was before. I am assuming the things like the Loudoun County fair, if it were in town, we would classify that as a carnival regardless of the name, right? Because that has items that I am certain would have the neighbors raise their eyebrows, if that were to occur. Jennifer Lassiter, I applaud the staff of the town of Leesburg. They have always worked with us and have worked with us diligently for almost a year now 18 1 t'a COUNCIL MEETING September 13, 2011 in trying to get something to you that will get us in compliance. Most of what you have read tonight is basically tailored after what we are particularly planning this year. That is where the 7 o'clock time frame comes from. Of course, I would love more flexibility with that in the event that we do something different or go beyond the scope of Shocktober. It is most important to me that we get to maximize our property and have it help the kids in any way that we can. The part of the.. other than the time limitation, the revocation clause is another area of concern because it is something that we planned for. On Novemberl we will start planning for Shocktober next year so to think that on day 2 it could be revoked, that is troubling. But what is more troubling is that it is September 13 and we have 12 days. Whatever you guys need from us, we will continue to work with you and we appreciate you working with us and I am happy to answer any questions. It is too scary for little kids at night, which is why we have stuff during the day now for little kids and our kids can enjoy it. I still wouldn't go if I were you, though. It's still scary. Hammler: That being said, I should have said the flip side of that is how many people expressed how much they loved the haunted house that were teenagers and up. It has been a wonderful neighborhood activity. Lassiter: That is a good point. We are trying to be good neighbors. So, anything that you want... that you think will help us do that, that's what we are here to do. Hammler: Jennifer, how much did this process cost to go through basically this ordinance change in order to be able to put on this year's fair? If you don't mind disclosing, just in terms of the process for now, if approved being in compliance with the town? It was town initiated? Okay. Lassiter: I'm not sure what you are asking me. Hammler: I don't believe my question is relevant. It has been clarified that it was town initiated. Mayor: Do you guys have something as to definition of fair at this point? Boucher: I guess we can shoot something out here. We hadn't quite figured writing it all down, but perhaps we could say a fair, if you are adding a definition, a fair is an event including, but not limited to, a haunted house or other seasonal celebration usually for the benefit of a charity or public institution including entertainment and the sale of goods. Mayor: Folks, Steve, Jennifer, Scott, if you heard that, does that seem to meet what you need it to meet this year? Okay. Well seeing that there is no other public comment, we are going to close the public hearing and it does come back to Council for a vote on the ordinance. 191 Pi COUNCIL MEETING September 13, 2011 The public hearing was closed at 10:01 p.m. On a motion by Council Member Reid, seconded by Council Member Butler, the following was proposed: RESOLUTION 2011 Amending the Leesburg Zoning Ordinance to Permit a "Fair" as a Temporary Use in the R -1 Single Family Residential Zoning District Mayor: As I understand it, that ordinance would include that definition language. Reid: I just want to thank the Paxton and ARC folks for being so diligent in dealing with the process. This looks like it has taken about six months. I wish it had not taken that long. But, this is what we are dealing with and we have to go through the planning commission and go through all these ordinance hoops. I trust you are going to have a great festival and you will abide by the rules. Fair! Excuse me. We hadn't defined fair yet, so I called it a festival. Excuse me. Shocktober. I'll try to be there too. Dunn: For staff, we said that the main issue was the timing of it, the fact that it was consecutive 15 days. What is our current allowance for time for people putting on special events? Burkholder: Again, it varies. Christmas tree sales are 30 days. Other events on a temporary use permit can be defined for like way side stands are going to be weekends throughout the summer, so it is going to vary per what event. Dunn: Do we not have a time limit for a fair? Burkholder: No. Dunn: So a fair could have gone on indefinitely? Burkholder: Well, it would have been an illegal use prior to tonight since it did not exist in the ordinance, but....we are defining fair now as three and five or fifteen consecutive days. That's what the definition now is of a fair. Dunn: So any of the type of fairs, going back to Kevin's point. Any of these fairs that are being put on, they just didn't reach the level of scrutiny because they were only done for a day or two, but we did actually allow them. So, since we allowed fairs, there really wasn't no time limit to what we were willing to allow. So in essence, I guess this is where I am caught on this one. We want to allow the Paxton to go forward, but we are also creating a lot of regulation in order to do that when I don't know that we even need to do that. I hate to have to be forced into creating a lot of regulation just for what I call spot 20 1 1' g COUNCIL MEETING September 13, 2011 zoning. In my business, in banking or with real estate, it would be spot appraising. We don't like spot anything. I'm caught on this because in one thing and I'm a big supporter of Paxton. I think you all know that I have supported you. Thank you for helping us out with the cub scouts this year with the go kart whatever it was. We started out rough with some fatalities... karts, not the scouts. And I think that Paxton has been a good friend of Leesburg. As many of you know, I have a son with special needs so I know and respect what you do. I have a little problem with this though as it is in a residential area and we have to be concerned about people in the community and their homes. I want to be able to allow this to go forward, but I don't want it to be something where we just now load on a bunch of regulations to say we are allowing what we have already been allowing. Nothing says that we can't do this and now we are having to say, now you can do it. That's a little tough for me to get my brain wrapped around. I wish we weren't having to just load up the regulations or the town ordinance with all these regulations just to do this. I would almost rather we find a way of letting Paxton use Ida Lee than having to come up with all these regulations. That would be my choice. By the way, a couple of questions. You brought up on one of your slides, you pointed out Herndon and Loudoun allowed certain things, but they weren't allowed in residential areas. You pointed out that Manassas allows it, but it was in the commercial area. What about Herndon and Loudoun. What are those zoned? Burkholder: They do permit them. Dunn: Residential. Burkholder: Throughout. Dunn: So, it's throughout. Okay. And this issue about fair. Again, I think that can be... one man's fair is another lady's festival. The other thing too about the music being indoors. I know from... and forgive my neighbors if they are watching and I am sure they are not if they had any sense about them. They have a band in their basement that they are always trying to put together, the teenagers and I can assure you that it is inside a building and I still hear it. It... I almost question whether we should be allowing it to go as late as 11 o'clock. It seems a little late for me. Again, I have young kids and it seems a little late. This is a tough one for me because I really don't think we are there yet and I had hoped that these types of things that we are having to do as a Council on the fly, that this should have been before the Planning Commission. You got feedback from the planning commission... they denied it and you came up with some things that they may have recommended, but I would have liked to have seen the planning commission have a chance to look at this, but unfortunately it is 13 days away from when they are trying to start this. If we were to say no to this, what stops them from going forward, really? Burkholder: It is determined that this use does indeed need a temporary use permit issued for it and if we did not go forward and put this use as an 21 I P COUNCIL MEETING September 13, 2011 allowable use in the R -1, they would therefore be facing the zoning violation process going forward. So, they would be in violation. Dunn: But where does it say they can't do this? Burkholder: Well, it's not a defined use in the R -1 under Section 9.5.2. The only things permitted as temporary uses are way side stands and Christmas tree sales. that. Dunn: In the R -1? Burkholder: In any residential. Dunn: But we have been allowing it. We have been allowing other than Wells: If I may, Council Member Dunn, because I might be the one getting the phone call, so I would like to weigh in. The concern would be if something isn't passed and there is a call and a complaint as to what is being allowed and the question is asked... if I am asked, is that permitted? Or do they have a permit to operate that, the answer is going to be no and I am going to be put in an awkward position of having to shut it down because they are not legally permitted. It is similar to other activities, but it is not the same by how we are defining this activity based upon its location, duration, and level of noise. It becomes a neighborhood issue. Again, if the neighbors were to call and complain, we are going to be in an awkward position. My advice would be to pass this. It's not the most perfect thing, but I think we can go back and clean it up. We are not going to be going out and applying this to other types of things that are happening. This gets us through this event and that would be my point. Again, I don't want to be in a position of having to contact the folks at the ARC and say I have got noise complaints coming in. It's not a permitted event. We had noted it wasn't permitted. I don't know how to come back at this point. Dunn: What then stops us from requiring now having to permit every other school fair that might be in an R -1? Wells: Because I think the point that was made earlier is there is a certain expectation of what you get when you live near a school. This is a school, but it is not a traditional school in the sense of having football games, marching bands... this is a different type of school and I think until there is a track record if you will between the neighbors and the school, it is a bit of an unknown as to what you would expect on the property. Burkholder: If I may... again, we are not applying this to public properties. This would be on private property. It doesn't necessarily address the church issue, but schools... you know this isn't the permit that would cover public schools or Ida Lee or that sort... 22 1 Page Burkholder: Correct. COUNCIL MEETING September 13, 2011 Dunn: I even wrote down in my notes, what about community property, Tavistock's common area where they have their pool and they might have ground that could afford a fair. They are going to now be required to do a permit for even one day. Dunn: If somebody was displeased about it, you would get a phone call. Are we putting a time limit like if it exceeds 10 days, it must be permitted? I am trying to find a way of having to limit one day you know girl scout meeting out on the grounds and having a moon bounce. Boucher: Council Member, if I may, I think that is not what this is aiming at. That is not what we have traditionally regulated in the town. This isn't changing that. What is happening here is this is not a girl scout meeting. This is something that is going to have perhaps thousands of people attend over a period of 15 nights. It is in a residential neighborhood. It is run by a school that is seeking to raise some funds through this. That is not a traditional school activity. Schools do have certain events. They have parent teacher night. They have parents night. Dunn: I'm saying even take away the school. If it's a community lot. Boucher: If it is a community thing again, if a community was going to do something small like that at their center, that's not the type of thing we are going to ask them to do. That's something I think you could very well expect. Dunn: But if John gets the phone call that says if this has been permitted. Boucher: It's not a commercial event. It's not the type of thing you could normally permit. We are not going to make everybody who wants to do a block party come in and now get a zoning permit. I think what this is aiming at, this is a commercial venture. What this thing is is raising money. It's bringing people who don't live in the community, don't live in the site, to come to a commercial event to raise money. I think that's what distinguishes it from a normal event you would expect if you had a type of school nearby. So, we are not going to get in to events that are traditionally held on these schools, but they are still going to be allowed to be done... or in a community center. A lot of communities do that. That is still the type of thing they can do. When communities get together, we want to encourage that, so we are not going to make a permit to do it. Dunn: Here is what I am trying to get at Brian. I want to make sure we are protecting those small money raising events that may only be running for one to maybe three days from having to be permitted. Is there anything that protects them in this ordinance from the one person who calls up and says I just don't like it. Is it permitted? And John has to say, well no it isn't. Is there anything in this 23 1 P g COUNCIL MEETING September 13, 2011 ordinance that would protect them from having to go through that permit process? It does not look like it to me. Boucher: I guess then it's just something the zoning administrator will have to make a call on. I think it's a reasonableness issue and what is really being aimed at. Wells: The question I am going to ask when I get that call before I say shut it down, I would not say that. The question is going to be does it require a permit? I would expect that in prior examples for the scouting event, for the one day thing here or there, this doesn't compel somebody else to do them. I think the answer I would get back after calling Chris is that is not required under our code and I would respond back to the individual that it doesn't require a permit. Dunn: Let me... calm down Ken, I know you are ready to go, but I want to make sure we are getting ready to do what I call again, a spot ordinance. But, we are making... passing regulations that affect the whole town. If I wanted to put on... Boucher: Certain districts in the town. In the R -1 District. Dunn: That's correct, in the R -1. If I wanted to take a community lot that is in the R -1 and do the exact same fair they are going to do for one day, would I need a permit? Boucher: If you are going to do something like this, you are really aiming at people off site, you have got a commercial thing that is not normally associated with the school, I think in that case we would say yes. Dunn: Okay. That's what I am trying to get to. So, should we then because you brought this up. You said this is a matter of time. The time that they are doing it. The length of time is going to be an impact on the community. Boucher: I would say it's one of the issues long term. Dunn: Should there be something in the ordinance that says a permit is required when the fair exceeds a certain time limit, whether that be five days, ten days, or fourteen days. That way, we don't have to require a permit and have to go through all these regulations for the smaller, shorter time period fairs. Boucher: Again, I would say that's up to Council. Let me say this. If you think staff has been too cautious. You know, I only give my history as a zoning administrator, I'll admit that influenced me a little bit, I had to answer a lot of noise calls when I was zoning administrator. People would hear music sometimes much farther than 300 feet away and they would call me on Saturday and it was three times I came downtown and chased bands inside because people who didn't live anywhere close heard it and were complaining. What I learned 24 1 Page COUNCIL MEETING September 13, 2011 from that is people in neighborhoods have certain expectations. I think if the school runs a normal type fair... oh, it's the school. It's the foot game, okay, it's a school. That's what they do. When you start getting into the things that are out of the ordinary and then things that also run many nights, which also makes it more unusual, then I think that's the time it's good to have some regulation. You used spot zoning. I will say this, often we change the zoning ordinance to fit circumstances. Here, we have never allowed a commercial venture like this in a residential district. Our current ordinance says you can't have it at all. What we are looking to do is actually add something we haven't permitted at all before. We are proceeding a bit cautiously and your concerns are definitely heard and you are asking good questions because you don't want to punish the little guy when it is something that is kind of inconsequential as far as the neighborhood is concerned. So, we don't want to make too much regulations at first. Dunn: Or if they even want to do a big fair for a shorter period of time. I don't want to have to force them to go through that... Boucher: I would say the time limit, one reason we have a lot of these regulations is fairs can sometimes be very large and you want to make sure you are taking into account the things that can affect the neighborhood... the impacts on the neighborhood. Sometimes it can be a one day fair but get people just as aggravated as one that may go on for several days, so that is why we have the regulation. Now, how they meet the regulation, a lot of it they work with staff and something that is really small, a one day commercial venture, they are not going to have to do a whole lot. I mean, it's going to be a much simpler, probably a much simpler operation, but at least with the regulation we get the chance to look at that and try to assess the impact on the neighbors. That's really what this was aiming at, where we are doing something we haven't allowed before, give the folks around it... to tell you the truth, they will probably call you all first. We are probably the second line... either he gets called first, or you all. Then we hear about it to do something, but we are trying to proceed a bit cautiously. The only thing I will say is if we have been too cautious, interesting... we were at the commission and the commission thought we were not cautious enough. From my standpoint, it has been very interesting to see the dichotomy. So, what we were trying to do is find something in the middle that allowed what was proposed to proceed, to give us normal regulation... a reasonable amount of regulation given what it is and if it turns out that this was very successful, it might be the kind of thing that we could always revisit. You know we could always open this up more, or frankly refine it if we find out some of the fears that we had as staff really haven't come to fruition. Dunn: Well, I would encourage Council maybe tonight to do it, or the planning commission to bring it up or staff that the permits be... in this ordinance that say that permits are required on fairs in excess of whatever day we feel is acceptable to a community. 25 1 F' COUNCIL MEETING September 13, 2011 Wells: Not to belabor the point, but the most.... The event that I have received the most negative complaints on was a one day event. Not a multi -day event. It wasn't in the town, but it impacted the town that was the beer fest in terms of traffic and everything that went with that. I think it's a matter of understanding what the event is in and of itself. You can have something very impactful that's only one afternoon or you can have something moderately impactful that goes on for 15 days, so I wouldn't my only advice is let's try to take them on a case by case basis. Lets understand the event. The key thing here is notification in my opinion. Its making sure that you put fair parameters on the neighbors are advised. We are not looking to create more regulation, just make sure that there is a balance between what people are expecting and hopefully providing an opportunity for a great event. But again, I will just use the beer fest and no disrespect to our friends at Morven Park, but I got more calls about that than anything I have ever been involved with here. Wright: I am still... I still find myself at least with the definition... so maybe someone could tell me how we got here. Was there a zoning administrator determination that determined what occurred last year was not a permitted use and therefore not legal and that's the reason we are here? Burkholder: yes. Wright; Just for sheer morbid curiosity, what would have been the process if somebody wanted to have appealed that decision to highlight every school does the same thing by right every year. Burkholder: The appeal process for a determination is to the BZA. They would have 30 days to appeal to the BZA. Wright: Okay, so that explains how we got to this point. I guess and I think you answered it clearly before. Now that we have the definition, I am a little better. My problem is I am still sitting here based on what you have described. I don't view the use that they are proposing different than the ancillary use that I would see at Tuscarora because they make a lot more noise than that every night which I can actually hear from my home. I actually hear County and Tuscarora fairly clearly. I don't think I hear Heritage, but it's not necessarily unanticipated, and it's ancillary, but they do it every time and I ensure you they encourage the general public to come out so some of the triggers that you are using in your definition give me the same pause and I just think that we need to be more succinct in what that definition is of what is generating the trigger and I think the trigger is a target audience broader than the base community, so you take the schools community fairs or whatever they do, their target audience is the community of the school with some ancillary attendance. The same can be said for the football games. They are going for the community of the school, which may be a broader community, so I think what is going to the definition here is their target audience is broader than the general kind of target audience that would usually go to that facility. 26 I i g c COUNCIL MEETING September 13, 2011 Boucher: What you would normally get from a school activity. Most school activities are related to the school program, etc. Like the sports program. Here, you don't have to have a haunted house. In this case, they are going to have it 15 nights. If you don't, I think, limit something like this in a residential district, what's to prevent them from just having a company that says can I run this out of your buildings every weekend of the year. Then suddenly, you have just introduced... let's just say they don't do it a few times so we don't call it a permanent use, it's temporary, but that's what you could get into. So, again I think staff is proceeding... certainly we are proceeding cautiously on this, but we are introducing types of uses that we haven't occurring this often of this nature in residential districts before. Wright: Okay, so what assurance can I have and I think to Tom's point as well, that the normal fairs that we are thinking of and we have used as the examples are not going to get a determination that says they need this permit now that we have defined this and passed this? Boucher: I think the zoning administrator is the best one to answer that. You know, any ordinance there is an intent behind it. I think we have all discussed the intent here. That is something that would guide him in the future when he is taking a look at this thing. Chris Murphy: I apologize, I had four people talking to me at once when you were asking a question. If you don't mind asking it again? Wright: Not a problem, so from a zoning administrator standpoint, what assurance can you give us that the definition that would generate permit as described here for these broader events and that we are not going to see churches or schools that have been doing these fall fun fairs, if you will, for years you know on a Saturday in October, or whatever, not having to have a permit. What assurance can we have that passing this is not going to generate a determination that those need that permit as well? Murphy: Well, in my mind it has been the practice of the town, at least for the schools, the Loudoun County public schools is that when they have their field days, etc., people are going to expect that a school is going to have an event for the children of that school. It's not going to be open to the general public. It's not going to be a generator other than the kids at the school and perhaps their parents come out for the day. An event like this, where you are going to take a building, turn it into something that it's not for an event to attract the general public, as many as they possibly can accommodate for the purpose of raising money for what they do there is something different. Something that I am going to say this is going to require a permit for that. That's where I am drawing the line... basically the degree of it, the intensity of it, versus the common practice and the common expectation of public school and what public schools do versus you know this is a private entity on private property. It is a school for special 271 is; COUNCIL MEETING September 13, 2011 needs children. You don't expect them to have haunted houses that are going to generate potentially thousands of visitors over that entire month. You are not going to expect them to have festivals every single weekend through an entire month. So what we want to do is ensure that if someone is inclined to do something like that, we want to make sure that we have conditions in place to make sure that people are properly notified, setbacks are adhered to, noise regulations are adhered to and if they are not, we have the authority to tell them no, that's it. You are done. Stop them or the next year when they come in say no based on past practice or regulate that even more to make sure that we don't have the complaints that we had the year before. So this is where I am coming in with that and that's how I am leaning towards a determination to make sure what has been happening in the town can't continue to happen and we add things like this that we have regulations in place that ensure that it does not impact the community that has become accustomed to something other than what this may be. Wright: I feel a little better. I am still worried that there is room there, but I am going to trust that the determinations don't get us into trouble because I didn't hear everything I wanted to hear. Boucher: One thing you all did last time is initiated a batch amendment. Madam Mayor, I think when we were discussing this, if there are any real problems with this, we have got going and in the next couple of months that's going to be at the commission. I think certainly the definition is something we can work on to eliminate things that are like normal school events... things you would normally expect to happen at a school or part of a community celebration. I think we can come up with some language that is perhaps... if we give a little more thought to it, it will get us where the folks need to be. Hammler: That was actually going to be what my thoughts were based on what you were hearing tonight, what would you amend if we had the time to go back to the drawing board and in as much as we certainly can still have you come back, I certainly would appreciate your giving it more thought. I will be supporting it for the reason that Kristen mentioned earlier, that we need to move forward to support Paxton. Just two quick disclosures, I do live back... my house backs up to Paxton and secondly, I did ask Jennifer after the last Halloween parade and knowing what I knew about the great haunted house, would the actors be able to be part of our trolley at the head of our Halloween parade. So, I felt that needs to be a disclosure because I did request that. I am assuming I can vote on this. Jennifer did say yes and she is going to be working, Madam Mayor, with Parks and Rec to get us a little bit more fun and interesting than we have in the past years with the Council at the front of the parade. I just wanted to mention those two disclosures. Butler: I just wanted to say as far as I am concerned you can vote on it, unless you are getting a cut of the proceeds, from the Shocktober. So, yes, I am 28 1 1) ,i g e COUNCIL MEETING September 13, 2011 perfectly comfortable with this because of our definition of commercial activity. I am looking forward to voting for it. Hammier: Just so as you know, the haunted house will be over before the parade. There is no additional patronage after that. 11. ORDINANCES a. None The motion was approved by the following vote: Aye: Butler, Dunn, Hammier, Reid, Wright and Mayor Umstattd Nay: None Vote: 6 -0 -1 (Martinez absent) Council Member Reid left the meeting at 10:30 p.m. 12. RESOLUTIONS AND MOTIONS a. None 13. UNFINISHED BUSINESS a. None 14. NEW BUSINESS a. Making Appointments to Boards and Commissions On a motion by Vice Mayor Wright, seconded by Council Member Butler, the following was proposed: RESOLUTION 2011 -115 Making an Appointment to the Standing Residential Traffic Committee (Pickrell) Hammier: Madam Mayor, my question is more broad so I apologize for just interjecting. Just looking at this, I can't tell who nominated whom for what commission. So, if someone could just explain what we are going to be running through short of just reacting to each one. Wright: No one has nominated anyone until we made the motions. You have the other names there. You have one, two, three, four different individuals who have applied for the Commission on Public Art that has been open for a while. The other motion that may come forward is if we have someone who is able to discern who we want to put on Public Art. Then we can discern that. If we can't as a Council, we can't. So, I'm doing the easy one first. I think the Mayor sent an email out in July or early August about the vacancy and that we had several applications for Art. The motion was approved by the following vote: Aye: Butler, Dunn, Hammier, Wright and Mayor Umstattd 291 Page COUNCIL MEETING September 13, 2011 Nay: None Vote: 5 -0 -2 (Martinez /Reid absent) Mayor: There is the Public Art Commission. Does anyone want to make a nomination for that? Wright: Tom, it's your vacancy, do you have a preference, before there is a broader.... Dunn: I didn't know I had a vacancy. Hammier: In that case, Madam Mayor, I think that somebody should be advocating and discerning between the applicants who has actually met with them and /or reviewed this material, because I have not. Wright: Can I at least... Can we get a commitment... well this vacancy has been going for a while. I know the Mayor actually communicated that. Again, it's kind of a side effect of our lack of quorum last night. It would be nice if we could get a commitment that one way or another that we make an appointment at our next set of meetings so that we can fill that vacancy. Hammier: I'm happy to vote tonight if someone has done the research and can make a recommendation and advocate for who should fill the vacancy. Mayor: I'm not hearing any motion. Dave? Wright: I'd say in fairness, with Council Member Dunn's comment that he hadn't seen this, let's give it the two weeks and put it on the next agenda and one way or another we will be able to make a decision. Mayor: Very good. That will be deferred for two weeks. Hammier: Madam Mayor... before we move to Council Member Comments.... Butler: I thought we were going to discuss a little bit about putting the Catoctin Circle barriers on the agenda for the next work session. I think as of last night, we would have done it if there had been a quorum. I think that based on the amount of residential input that we received tonight, there is a lot of energy around it and so I think Council dealing with it sooner rather than later is probably better. So, I'd like... I'd just like... Mayor: Are you trying to make a motion to suspend the rules? Hammier: Madam Mayor, we think just the chair should rule in light of the fact that there was no quorum yesterday. 30 1 k' g COUNCIL MEETING September 13, 2011 Irby: Just to add something to the agenda, and to conduct official business, it is. Hammier: Jeanette, we can't hear at this end. Would the chair rule on this and add this to the next work session or do we have to suspend the rules? Irby: They are your rules. You require that you suspend the rules. Hammier: So the Council has to suspend the rules to be able to add a work session agenda despite the fact that there was extenuating circumstances yesterday? Irby: It was not an emergency, you just didn't have a quorum. So, I wouldn't call that extenuating circumstances. Mayor: Alright, is there is there a motion to suspend the rules? Butler: I move to suspend the rules to allow us to put the Catoctin Circle Barrier discussion on at the next work session, because this is a resident initiated item and there seems to be much energy around it and so for the benefit of the residents, I think that if Council deals with it sooner, rather than later, it's to their benefit. Hammier: I'll second that. The motion to suspend the rules was approved by the following vote: Aye: Butler, Hammier, and Wright Nay: Mayor Umstattd Vote: 3 -1 -2 -1 (Martinez /Reid absent, Dunn abstaining) Mayor: So, that carries three.... Irby: It has to be unanimous. Mayor: Okay, now I just looked at my cheat sheet and it says two thirds. Irby: Okay, then go with two thirds. Mayor: Okay, I think it's two thirds. Butler: Yes, it's two thirds. Mayor: Alright, so it passes with a two thirds vote. Irby: Are you looking at the Council Rules Cheat Sheet or the Robert's Rules of Order Cheat Sheet. 31 1[) COUNCIL MEETING September 13, 2011 Hammier: We are looking for your guidance, Jeanette. Whatever you legally... Irby: I think you should just put it on the agenda. Mayor: I'm looking for the cheat sheet... Hammler: Well, we asked you if the chair could rule and you said we couldn't do that. But then the chair probably wouldn't have ruled... Wright: I think the request is only to have a discussion item on a work session, because I don't think they are asking for action. So, if we get to the work session and they are going to try for action, that would then follow... there is time for our rules to intervene before there is an action. So, I think as chair you could say sure, fine, we will put it on the agenda. Mayor: Well, we already have our two thirds vote, and it's the Council cheat sheet and it says two thirds. So, it's on. It's going to be on. Hammler: Even though we don't have a motion to put it on, because we just suspended the rules? Alright, I thought we just suspended the rules and we hadn't voted to put it on yet. Mayor: If you would like to do that as well, we could do that. As I understand it, the two thirds motion was a joint motion to suspend the rules and get it on the next work session. Hammler: Okay, in that case, I would have had further comments. Never mind. Council Member Dunn left at 10:38 p.m. 15. COUNCIL COMMENTS Vice Mayor Wright: Just briefly, appreciated the great job for the 9/11 ceremony. I thought that was very nicely done. Also, very much appreciated the hard work of the Leesburg Dogs group in hosting the dog swim. This year for the first year we were going not only as observers, but actually had a participant, although our particular participant could not understand why there was a lot of dogs getting baths and chose to observe that from a safe distance as opposed to participating and getting groomed. Just didn't understand. Council Member Hammler: I just wanted to thank staff, especially Jeremy and Rachel for the absolutely wonderful 9/11 ceremony. It was wonderful seeing everybody out there. A couple of quick comments regarding that. I just also wanted to say thank you for the spot light on the flag. I know that we now fly flag over the Freedom Memorial even after dark during the games. I did get a comment back that some of the names are fading on the memorial, so we may want to take a look at that. A couple of 32 1 r COUNCIL MEETING September 13, 2011 other quick things. I wanted to congratulate Cleaners4Less that had the ribbon cutting on the 10 Madam Mayor was there cutting the ribbon. It was really a great turnout. Living in Exeter down the street, I have to say, I am very excited about having $1.99 dry cleaning so it's great we are filling up that whole community center. Just they will be great neighbors and a great place to drop off your dry cleaning. A couple of quick things regarding the EDC. The Loudoun EDC, I am very happy to report that Mayor Walker is back and attending, so we were thrilled to see her there last Friday. I am continually amazed by the leadership that Leesburg shows on many of the topics that come forward at the county level that we have really initiated things like the Mason Enterprise Center, what the County is now pursuing in terms of the Arts and Cultural District, way finding... many people at the County are so excited about the airshow and our airport. So, I just wanted to commend staff and everybody involved in so many of these key efforts. Keep an eye out on rail. We had an update on rail. It's eye opening in terms of the decisions that are going to be coming forward quickly and the Board will be looking at how we would, as taxpayers, pay for a $300 million expense, whether it's $0.05 on the tax rate or a bond that we probably can't float. So, we will all need to closely scrutinize that. There was a big discussion about data centers. The revenue is about $5 million for about 250,000 square feet of space and generates about 35 jobs. I know around our airport, we are looking at that as a key economic initiative. So, a good discussion about the fact that it really does create jobs, does create revenue. John, just keep an eye on what we can be doing if that makes sense from a town perspective. Looking forward... from an upcoming events perspective. Looking forward to the Country Club information session regarding Linden Hill and the financial forum that is coming up on Thursday that our economic development commission, another leadership element, organized. I did want to formally say thank you to everybody who showed up regarding opening up Catoctin issue. We have received so many emails and I have received so many calls and different levels of discussion. So, I do think that it is critically important that we receive an update from staff regarding any other additional improvements that are being made on Catoctin, John You know, the discussion about the light, driveways that are still impacted and what has changed since the original resolution in terms of the phasing of the project and the $2.2 million improvements on Catoctin. So, I look forward to a healthy discussion and a kind of rational decision making on moving forward. With that, I just appreciate everybody listening, because I know it has been a long night. Council Member Butler: First, I would just like to add on to what Katie said about data centers. Data centers are in our best interest at this point because the faster they build the data centers, then the faster they have to build the natural gas generating plant and the faster we get millions of dollars into our utility fund. Which would solve a lot of problems. So, I am all for that. I would like to give kudos to the IT staff at the town just in remembrance that this has now been one year that we have had all of our council meetings on Sharepoint. I find that I love the Sharepoint, the only down side is that it eliminates the one must reason why I had to go visit my mail box. So, now I have to go visit the mail box because it needs to be checked for everything else. But, Sharepoint has been great and I have really appreciated it. I do have one disclosure. I had a conversation with Mike Banzhaf around the Village at Leesburg proffers. I think it might be a good idea around the Linden Hill project that the last expectation I had 3311,.18 COUNCIL MEETING September 13, 2011 was that at the auction for the house, that the odds were supremely high that it would be a non -event as far as we were concerned. But I think the expectation is on both sides of the Linden Hill discussion that it may be more eventful than I was lead to believe. So, if in fact, our expectation is still that it will be a non event, we may want to reach out to some of those folks and just say look, this is... don't be overwhelmed or underwhelmed by what happens at the auction. Last, definitely not least, I loved the 9/11 ceremony at Freedom Park. I think it was great. I just wanted to... on a personal note, I spent half the day watching 9/11 recap shows, which I am not sure was a great idea or not. Because it really brought back a lot of memories of the day and especially I definitely appreciate the heartache and everything else that came from the victims of that event. I think the most moving part of the shows that I watched was when they focused in on all these gentlemen, I say gentlemen because I think it was almost exclusively gentlemen, with hats that say FDNY. Not only... I mean to me they were the true heroes who were willing to climb up the stairs with sometimes up to 100 pounds of gear on their, at least one reached the 78t floor with all of this gear and they definitely put themselves in harms way, 343, I believe did not survive. But the single most moving part of even that was when they showed pictures and some discussions with some of the children, again almost exclusively sons of these firefighters who are now firefighters themselves, and who became firefighters for the express purpose of honoring their fathers that were lost in that event. The courage of both generations far exceeds anything that I believe I would ever be capable of. So, I really appreciate them and I was glad that there was a focus on them and that event. 16. MAYOR'S COMMENTS Thank you for everybody who is up here for coming to the 9/11 event and thanks also to Council Member Reid and Supervisor Burk and States Senator Mark Herring. Also, I really appreciate the Leesburg Volunteer Fire Department that has always been a strong supporter of that event and our police department for showing their support every year and to the crowd that was extremely supportive of this event continuing and I got to talk with quite a few people afterwards and they really appreciated Council's keeping this event going, so I really appreciate Council's continued support. I don't really have anything else given the lateness of the hour. 17. MANAGER'S COMMENTS Just very quickly, if you haven't seen it, there is an email from Mr. Parker indicating that due to the expected bad weather Thursday afternoon, the Wolf Furniture welcome, quasi ground breaking, here we come event is being rescheduled, so don't show up at the site Thursday afternoon, you will be there by yourself. Please don't do that, but that is being rescheduled again pending the weather issue. Second thing, Council Member Hammler mentioned... the Mason Enterprise Center, furniture is moving into that building and we expect it to be fully operational over the next couple of weeks. Everything is working fine. We have an occupancy permit and staff from Marantha and Debi will be moving in. Also, Mason University did complete the hire for the center director and she will be starting early October. As soon as I get a name that I remember, at this point, it's not that it hasn't been given to me, at this hour I forgot. I will get that to everybody. She is relocating from out of state. We will get that information to you. We are very excited about that hiring. 34I 1, COUNCIL MEETING September 13, 2011 Council Member Hammier: May I add two other quick things... One, I have noticed Roger Stouss is coming Rust Library in October. Everything reports up to him. It would be nice if we somehow all got over there and said hello to him... I think it's the 18t of October for a presentation on hi -tech and the region. The two, I think, key people that I was hoping somebody after me would recognize, because I meant to were our speakers at the 9/11 ceremony, Chief Price and Loudoun County Deputy Fire Chief Randall Shank. I thought they did a lovely job. A really wonderful balance between kind of the passion... you know of the values and principles that Chief Price brought out, but I was really struck by just the level of information and the technical information that the fire... deputy chief provided and I did receive feedback afterwards how important it was that we should find ways to communicate to the broader community here is all the things we have invested in with your tax dollars to keep us safe after 9/11 and basically promote that. I thought it was very valuable information as well as being very moving and thank you, Kristen, for reading the lovely letter about our motorcycle ride and our support of essentially symbolically what we are winning the war against, which is, you know, our country's based on freedom from fear and we chose not to live by anything but our courage on that day. 18. ADJOURNMENT On a motion by Vice Mayor Wright, seconded by Council Member Butler, the meeting was adjourned at 10:50 p.m. Ti. Clerk of iu cil 2011 tcmin0913 Kristen C mstattd, Mayor Town of Leesburg 35 1